by Marilena Rizzo, magistrate presiding over the Court of Florence.
Abstract
The scope of this experiment was the keeping of registers of judicial experts. It involved institutional players and the main professional associations and led to the drafting of no fewer than three protocols (general rules applicable to the register of experts, specific features of experts in medical liability matters, specific features of experts before the Commercial Court) signed over a 15-month period (December 2017 and March 2019).
These protocols were then applied by the Court of Florence both for the management of the register (new entries and revisions). The number of registered experts fell from 5,700 to around 2,000. At the same time, there has been a sharp reduction in the volume of cases pending, either because of delays on the part of experts, or because of the need to repeat expert assessments following invalidity due to experts’ failure to comply with procedural rules. This also suggests a reduction in the length of trials and a better quality of decisions in cases where the judge has used the support of an expert.
In the light of this experience, in July 2020 the Italian Ministry of Justice identified the Court of Florence as the pilot jurisdiction for the ministerial portal of the register of experts. In February 2023, the Court of Florence set up a permanent technical round table on the requirements deemed relevant for the conduct of technical consultations and the exercise of the functions of judicial expert. This round table involves the courts of Florence and Treviso, the bar associations of Florence and Treviso, the association of experts of Tuscany (APET), the civil chamber of Florence, the federation of civil chambers of Tuscany, the national confederation of experts and court officers (CONFGIUSTIZIA), the Innovation and Justice Association and the national civil justice observatory of the confederations of professional associations.
Findings and action plan
The current Italian law (in force until the Minister of Justice in agreement with the Ministers of Economy and Finance and Economic Development issues the decree provided for by the Cartabia Law) provides that the consultants registered in the Register of the Office Technical Consultants are in possession, among other things, of the requirement of “special technical competence”. It also provides that the Committee in charge of the Register will carry out a four-year review of the same “to eliminate the consultants for whom any of the requirements have been missing” by law. There is at the national level in the Bar and in the Judiciary a general dissatisfaction with the work of the consultants enrolled in the Register, whose activity does not express the necessary “special competence” provided for by law.
During the National Assembly of the National Union of Civil Chambers of Lawyers held in Florence on 28-30 October 2016 on the theme “the entry of expert knowledge into the civil process. The judge’s technical consultant and other auxiliaries. Critical aspects and reform proposals” the question of the quality of the services offered by the professionals appointed as auxiliaries of the judge was highlighted by the lawyers and the President of the Court of Florence, Marilena Rizzo, has indicated, as possible contrast action against the decline in quality, actions aimed at the shared interpretation of the notion of “special competence” with consequent reflections on the rules to be followed to allow experts to submit and enter the CTU’s Register and to keep their registration in the same on the occasion of periodic reviews.
The problem was and is serious, given that statistical surveys say that about 65% of civil cases in Italy is decided upon after the adoption of an office technical advice and in 90% of cases the judge decides according to what is established by the CTU.
Gathering of the stakeholders
At the request of the lawyers, a table was then set up at the Court of Florence at which 19 professional orders and associations, the Chamber of Commerce and the President of the Court of Appeal (as an institutional reference body and as the Office competent to decide on complaints against the Committee’s measures) were invited to participate, the Bar Association and the Public Prosecutor’s Office (as members of the Committee provided for by the law), the Civil Chamber of Florence and the APET (as qualified stakeholders) and from 6 December 2016 to 8 November 2017, 6 meetings were held to draft a regulation (6 December, 28 February, 24 May, 27 July, 16 October, 8 November) then signed by the General Prosecutor’s Office and transposed into a protocol on 14 December 2017.
The protocol was then joined by associations representing various professions that had not participated in the work, such as the Tuscan Board of Expert Experts Consultants, Confassociazioni and Confprofessioni Firenze, demonstrating the interest of civil society in this innovation project.
Requirements established by the protocol
The regulation consists of four sections (registration in the register, revision of the register, discipline of the register, final rules) for a total of 18 articles.
The most qualifying part of the protocol is that of articles 2, 3, 4 on special competence, which does not end with the mere possession of the specialization’s qualification but is substantiated in the concrete theoretical and practical knowledge of the discipline, which must emerge both from the curriculum vitae in European format and from the professional experience. It is also necessary to know the rules of the PCT (Telematic Civil Process).
New applications have been subject to the requirement of registration with the Order or the enrolment in the Professional Register for at least five years (the special competence has been presumed lacking in those who have been registered in the respective professional register for less than 5 years) and the certification of having completed a judicial technical training course lasting at least 20 hours, which also shows that they are aware of the informatic tools connected to the PCT, on the premise that the activity of the office technical consultant cannot be well carried out without knowing the basic rules of the process and the rules governing the activity of the expert.
At the time of the revision of the Register, the professionals that were interested at remaining in the Register were asked the proof of having participated in the previous four years in a course having the same characteristics (judicial technical course on the Civil process and concerning the rules that govern the CTU) or to have carried out at least four technical consultancies of office or alternately eight consultancies of part (with the criterion that two technical consultancies of part are equivalent to one office technical consultancy) and to expressly indicate the specialization for which it is requested to maintain the registration.
It was considered that the special competence cannot be inferred from the mere fact of practising the profession for a long time or from having participated as a learner in professional refresher courses. It is in fact necessary to demonstrate specific professional experience in the subjects for which registration is requested in the Register or to be the author of scientific productions.
Another requirement considered essential by law is the “mirrored morality”, which in the protocol was considered not to be identified only with uncensoredness, but consisting of a professional and life conduct, correct and honest.
It has been agreed that the absence of mirrored morality is presumed, until proven otherwise, in those who are subject to criminal prosecution for a crime, with preclusion from registration for those sentenced to criminal sanction of imprisonment for a non-culpable crime and not rehabilitated.
Revisions of the registry
The systematic revision of the Register cured by the Committee has been scheduled every four years and the permanence of the requirements is ascertained there.
On 17 July 2018, the revision phase of the CTU register established at the Court of Florence, which at the time had 5707 members, began.
For this purpose, specific forms and instructions have been prepared and published on the Court’s website, communicated to the Orders and professional colleges and sent individually to the consultants who appeared to have a certified e-mail box.
The revision operations involved as many as twelve meetings of the Committee at the end of which, in 2019, only 1517 professionals (equal to 28%) were enrolled in the Register, to which 124 new members were added, for a total of 1641 professionals. The data demonstrate the accuracy of the initial intuition and achieve the dual objective of providing the Magistrate with the help of experienced and qualified professionals and of guaranteeing the principle of rotation provided by the judicial system.
The massive amount of work that involved the Court of Florence to proceed with the revision was carried out thanks to the activity of the staff of the President of the Court, with the help of volunteers of APET (Association of Experts and Experts of Tuscany) and to the collaboration of the professional associations that have helped the Office in the preliminary activity of each practice.
During the work of the Table, Law no. 24 of 8 March 2017 intervened, which introduced innovations regarding the appointment of consultants and experts in civil and criminal proceedings concerning health liability. The CSM issued circular 18695 of 27 October 2017 regarding the criteria for the selection of consultants in the aforementioned procedures with particular reference to training, revision, registration and keeping of the registers of CTUs and experts established at the Courts.
The achieved results
The regulatory framework outlined above has made it appropriate to deepen the application of the new legislation and a separate and structured discussion table was then launched with the President and the judges of the civil section competent in matters of health liability, the Bars and the professional associations concerned, as well as with the Prosecutor of the Republic and the President of Bar Association, as members of the Committee for the keeping of the Register of the CTUs, which defined its work also taking into account the memorandum of understanding signed by the CSM, by the National Federation of Orders of Doctors and Dentists and by the National Forensic Council in which recommendations for the harmonization of the procedures for the formation of Registers are contained.
Rules were therefore shared which were transfused into a protocol signed on 22 October 2019 which takes into account, as regards the special competence, in addition to the specializations communicated by each professional association, also the need for the professional to have training in mediation.
The experience gained during the work for the drafting of the CTUs Protocol has made it possible to set up a table with the Order of Chartered Accountants and allowed the signing on 7 March 2019 of a Protocol with ODEC Florence, Florence Bar Association, Conference of the ODCEC of Tuscany, Union district of the Councils of the Bars of Tuscany, with regard to the rules for registering in the list of professionals enrolled in CTUs registers of the Courts of the Tuscany Region available to accept assignments conferred by the judges of the Companies Court of Florence (section of the Court having regional jurisdiction).
With regard to the requirements for obtaining registration in the list, in addition to the necessary registration in the CTU register of the competent Court, rules similar to those provided for the registration and revision of the CTUs register have been reproduced with the addition of an express declaration of commitment to accept the assignments.
[1] CTU = Consulente Tecnico di Ufficio, technical consultant to the judge.
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