Recommendations from the Working Groups during the Findex II project are presented in this article. They are based on the talks given at the Consensus Conference.
WP2-WG1 – Definition of criteria for legal experts
Experts with “high standards of technical knowledge and practical experience”
Competence
| Initial Professional Qualification/Education | Judicial experts shall possess initial professional qualifications and/or professional education to guarantee a necessary level of theoretical knowledge; according to the specific field of expertise, this can be verified/proved by a vocational or academic education (academic degree) or training. In some cases, many years of a specific professional experience may also be sufficient. |
| Professional experience | Experts shall have professional practical experience of several years in their field of expertise. The position of a judicial expert is, with a few exceptions, considered less suitable for beginners. An approach can be to require a practical experience of minimum three to five years. Membership in a professional association should not be mandatory. |
| Experience in Expertise | To give evidence of expertise experience as judicial expert shall not be mandatory to apply for registration. If this were required, there would be literally no chance for aspiring experts to create a career entry. In case applicants for registration have expertise experience (for example: outside of courts, private assignments) this would be an add-on. |
| Ability to present clearly and intelligibly an expert opinion that may be readily understood by a non-expert or adequate level of linguistic ability, especially in oral and written expression. | Experts shall be able to present the results of their assessment in a comprehensible manner and in a structured way, in writing and orally to a court, i.e., to persons without specific knowledge in this field. |
| Keeping knowledge up to date, Continuous professional education | Experts shall follow continuous professional development (CPD): While knowledge of civil procedures generally has a fairly long half-life, technology and scientific methods develop faster and faster. Experts constantly shall be prepared to adapt their working methods when professional environments are rapidly changing. Lifelong learning is the key to know about new developments and pick up new knowledge on a regular basis. This equals mental flexibility to acknowledge changes in the expert’s field of expertise. For experts, it is therefore important to make sure they have regular learning time built into their schedule. |
Knowledge on procedural rules
Knowledge of the law and proceedings in the applicable legal system is of significant value and shall therefore belong to the knowledge of judicial experts. They should be aware of the requirements of procedural rules in the applicable jurisdiction.
According to the Working Group, experts should have knowledge of procedural aspects at least regarding their rights and obligations and their function within the legal system, since (i) an independent and functioning legal system is the backbone of a constitutional state and of the rule of law and (ii) experts should globally know how the results of their work will be used in order to deliver results that are of use for courts.
Experts shall possess at least basic knowledge about civil / criminal / administrative procedures. This should include:
| Codes and Rules of Practice | Relevant Codes or rules of Practice for experts |
| Justice System | Overview of the relevant Justice System Basic Law to include contract, tort, fees, advertising, and liability. |
| Procedure Rules applicable to experts | Criminal Civil Others, where applicable |
| Role & Responsibilities of experts | Appointment procedures Terms of engagement Conflicts of interest Giving evidence including requirements for reports |
| Alternatives to the Court Process | ADR including methods such as mediation and expert determination. The role of experts in different processes. |
Ethics/Ethical behaviour
Ethical behaviour is fundamental to build the desired level of confidence in any neutrally provided expertise service. Therefore applicable procedure rules or codes shall include the following criteria:
| Impartiality | Judicial Experts shall not do anything, in the course of practising as an expert, in any manner which compromises or impairs or is likely to compromise or impair the expert’s impartiality. Experts shall not include anything in their report which has been suggested to them by anyone, including the lawyers of the parties, without forming their own independent view on the matter, only after adversarial hearing. Experts should also be resilient to any pressure from the parties or political pressure; their opinion must be fact-driven or be based upon their own investigation. |
| Independence | Judicial Experts shall not do anything, in the course of practising as an expert, in any manner which compromises or impairs or is likely to compromise or impair the expert’s independence. |
| Notification of conflicts of interest | The expert’s independence, impartiality, objectivity, and integrity have to be intact. For judicial experts, acting independently means being free of conflicts of interests, which is synonymous with a situation in which, because of other activities or relationships, impartiality in performing expertise services is or could be compromised. Experts should not accept assignments in any matter where there is an actual or potential conflict of interest without full disclosure to the court and parties. If any conflict of interest occurs after the assignment has been accepted, experts shall immediately notify the court and, in appropriate cases, ask for resigning the appointment. |
| Objectivity/Integrity | Judicial Experts shall not do anything in the course of practising as an expert, in any manner which compromises or impairs or is likely to compromise or impair the expert’s objectivity and integrity. |
| Duty to the court | There is an overriding duty to the court to provide truthful, independent and impartial expert evidence. This duty, however, should not be misunderstood as an anticipatory obedience to state authorities or as a recipient of politically driven orders. In common law systems, the duty to the court is stricter than in civil law jurisdictions. |
| Confidentiality | Judicial Experts shall not do anything in the course of practising as an expert, in any manner which compromises or impairs or is likely to compromise or impair the expert’s duty to maintain confidentiality. Judicial experts are subject to professional secrecy. They shall not reveal any relevant information that may come to his knowledge in the course of his work. The information intended for the parties or the judge shall not be disclosed to the public or third parties outside the legal proceedings. |
| Duty for on-Time delivery | Experts shall guarantee a certain level of reliability. This includes timely delivery within the agreed budget (which, of course can only be done at a certain level of experience). Experts should have a realistic overview of their deadlines and commitments in order to meet them. Meeting deadlines set by the court is essential to guarantee an efficient trial. Of course, this requirement can be adapted if the deadlines imposed are excessively short or if the other participants in the proceedings do not allow experts to work effectively (for example, by not providing the documents themselves in time). |
| Transparency of expert opinion | This is meant as a duty to differentiate the facts and assumptions (and, where relevant, any underlying scientific or in any other way acknowledged methodology) on which expert findings are based. The expert shall fully assess the situation. Experts shall conduct an honest intellectual reasoning. In particular, possible existing discussions in the field of expertise must be exposed. Experts should also be capable of identifying and overcoming possible implicit bias. |
| No criminal record | We recommend that experts have not been convicted in criminal cases, or be susceptible to bribes or inducements of a monetary nature due to personal high, disproportionate debts. |
Other
| Age | We do not recommend the introduction of an age limit for judicial experts. |
| Risk management | This should be accompanied by a routine risk identification carried out by judicial experts prior to the acceptance of assignments. In case it is not already mandatory this analysis can include conflict of interest, legal risks, liability as well as accountability. |
