EXPERT EVIDENCE IN A CIVIL LAW JURISDICTION

1. EXPERT EVIDENCE IN A CIVIL LAW JURISDICTION THE SITUATION IN FRANCE Louis B. BUCHMAN Paris, France WORLD BANK April 20, 2005

2. Introduction • Evidence is the cornerstone of any successful cause of action, in any jurisdiction. • However, the manner in which it is adduced and presented to the court may vary greatly from one jurisdiction to the other. • Reliance on parties’ expert witnesses has never been the norm in civil law jurisdiction, where greater confidence has long been given to court-appointed experts.

3. Why call on expert evidence, and when? • Parties’ experts are known and are used in France, most of the time before any litigation. • Parties’ experts, or their insurers’ experts, may also take part, alongside the parties, in proceedings before a court-appointed expert, akin to a Special Master, once litigation has been initiated. • The real expert in that context will be the court-appointed expert, who will have the final say on findings of fact.

4. Why call on expert evidence, and when? • When some evidence is • beyond the reach or the knowledge of the party alleging it, • or the latter alleges that it may be destroyed • or will evaporate and must therefore be preserved for the course of the oncoming litigation, • or findings of fact should be established before litigation on the merits is initiated, • the alleging party may apply for the appointment by the court of an expert, in summary proceedings. • In summary proceedings, it is almost impossible for a defendant to avert such appointment.

5. Why call on expert evidence, and when? • The primary reason to grant the application is • the matter at hand is too technical for the judge to get involved in all its details, • justice shall be better and more economically served if findings of facts are presented to the judge in a logical fashion, enabling him to concentrate on findings of law only. • Judges have no time and little inclination to investigate facts in person.

6. Why call on expert evidence, and when? • The expert cannot opine on the issue of liability, as this would be a finding of law. • The findings of fact in the expert’s final report shall weigh heavily in the judge’s decision. • In our court practice, • although the parties are afforded the possibility to discuss and challenge the expert’s final report in their pleadings before the court in proceedings on the merits of the case, • in 99% of all cases, the judge will adopt wholesale the findings of fact of the court-appointed expert.

7. By whom is the expert survey conducted? • The judge may appoint any person of his choice to inform him through findings, an opinion or a survey on an issue of fact which requires the lights of a technician (Article 232 New Civil Procedure Code). • However, in actual practice, surveys are carried out, before civil, commercial, administrative and penal jurisdictions alike, by experts drawn from lists established by the Courts of Appeal and the Supreme Court.

8. By whom is the expert survey conducted? • The judge may appoint one or several experts, and will do so when expertise is required in different fields. • The mission is personal to the appointed expert, and cannot be delegated. • However, the expert may call upon the particular knowledge of another technician, as he shall deem fit, as long as such consultant has a specialty differing from his own. • The result of such consultancy must be attached to the final report of the expert.

9. By whom is the expert survey conducted? • The experts whose names are on the courts’ lists have undergone a screening process and have been sworn in. • They are temporary court officers, bound by the same duty of impartiality as judges. • An expert may only be removed “for the same reasons as judges”. • The violation of the duty of impartiality of the expert may be invoked at any point during the proceedings, including for the first time before the Supreme Court.

10. By whom is the expert survey conducted? • Some academics hold however that such violation of the duty of impartiality could be sanctioned only by the nullity of the expert’s report. • The Civil Court of Paris (Tribunal de Grande Instance) has on 27 April 2001 removed an expert on the basis of Article 6.1 of the European Convention to Saveguard Human Rights and Fundamental Freedoms, holding that it sufficed that one of the parties could conceive "a doubt about the objective and apparent impartiality of the expert". • However, removals and challenges of court-appointed experts remain extremely rare, as there are lesser pitfalls in criticising post facto the work and the report of the expert than the expert himself!

11. How is the expert survey conducted? • Similar principles are applied in civil, commercial, administrative and penal court-ordered surveys (with however one major difference regarding penal proceedings). • The terms of the mission imparted to the expert by the judge are of the essence. • Therefore, a discussion on the exact wording of the mission often takes place at the hearing in summary proceedings, and the defendant may suggest a different, more restrictive or more precise wording than the one requested by the claimant.

12. How is the expert survey conducted? Survey meetings • Parties are convened by registered letter with notice of receipt, with copies to their counsels. • An attendance sheet is signed. • The person assisting or representing a party can formulate observations and present requests, even in the absence of the party. • The court-appointed expert generally starts the first meeting by reading his mission and outlining in broad terms the manner he intends to proceed. • For instance, in the event of an industrial accident, the first meeting shall mainly be devoted to on site factual observations by visiting the premises, noting deteriorations, and suggesting the taking of remedial action to end or mitigate certain disorders.

13. How is the expert survey conducted? Costs • Before the first meeting with the parties and within the time prescribed in the Order appointing the expert, under penalty of his appointment becoming null, the amount of funds fixed in the Order must be deposited with the clerk of the court. • If the expert establishes that the amount deposited becomes insufficient to cover the costs, the judge may order an additional amount to be deposited, and if it is not paid within the time prescribed, the expert may file his report. • If for instance an analysis entailing expenses is to be carried out by a third party, the expert may suggest to the party which may derive from it the most benefit to pay the third party directly, after having submitted an estimate of the related costs to the parties.

14. How is the expert survey conducted? Production and communication of supporting documents • The communication of supporting documents to the expert must be spontaneous. • In order to ascertain that the principle of due process has been abided, counsels are well advised to invite the expert, if he does not take that initiative, to recap in writing the complete list of supporting documents, correspondences and statements which he received since the last meeting.

15. How is the expert survey conducted? Formal party statements • After a survey meeting, it often becomes necessary to reorient the expert and/or to alert him on any given aspect touched upon during the preceding meeting. • It should be done in writing, so that this serves as a record and those formal statements must be attached by the expert to the final report if the parties so request. • He must also address in his report the issues raised in such statements. • These formal statements are similar in nature to pleadings, and it is part of the game to pick the right time to file them with the expert and to carefully weigh their contents, avoiding the disclosure of any argument prematurely and unnecessarily.

16. How is the expert survey conducted? Draft report • The expert enjoys a great discretion as to how to carry out the survey operations. • More often than not, the expert will circulate a draft report in order to give the parties the opportunity to comment on it and this exercise may result in profound changes being made by the expert in the final report. • There is however no strict obligation to proceed in that manner. • Even in the absence of a draft report, the expert must constantly invite the parties to express their point of view in particular following the reception of new information. • In particular, no finding of fact should be reached without it having been offered for discussion to the parties.

17. How is the expert survey conducted? Final report • If a draft report has preceded the final report, the latter will usually comprise few new elements. • Filing it with the clerk of the court shall conclude the expert’s mission. • If the parties have settled their dispute, the expert is dispensed with such filing. • After such filing has occurred, the party which finds it advantageous may initiate an action on the merits and claim an award of damages. • In the course of such proceedings, the findings of fact in the final report shall naturally be attacked by the defendant, but almost always to no avail, due to the weight generally given by courts to such findings.

18. How is the expert survey conducted? Due process throughout the survey • The expert must make sure that due process is abided by. • Our Supreme Court has ruled that a court-appointed medical expert committed a serious professional misconduct by caucusing at the end of the survey with the medical expert from the insurance company of the person having caused a car injury, without the claimant being in attendance (Cour de Cassation Civil 1st, 1 June 1999).

19. How is the expert survey conducted? However, such due process requirement does not exist in penal surveys: • Unlike in civil, commercial and administrative settings, the victim-plaintiff is convened and heard alone, and the expert’s final report filed only with the judge having ordered the mission. • The expert does not have to await the deposit of the amount of costs as in no case shall the plaintiff have to deposit funds for the survey.

20. Conclusion • In terms of litigation techniques, there is convergence at work between non-common law and common-law systems. • An example of such convergence may be found in the 1999 IBA Rules for the Taking of Evidence in International Commercial Arbitration, which are commonly used to the satisfaction of parties in arbitration and of practitioners alike. • The public cannot withstand over the long term litigation systems which are inherently enormously expensive when carried through to the bitter end. • Therefore, simplification of procedural rules and efforts to contain and reduce costs for litigants will remain the order of the day in every jurisdiction.