It is insufficient to be an expert to become a court-appointed expert – expert witness, part 2

In previous post I focused on the timing of the appointment of an expert and why the lack of an expert witness can lead to losing the case. Now we shall look at who can become an expert witness and on what conditions an expert witness may refuse to fulfil the function.

Appointment of an expert witness

A person may be appointed an expert witness if that person:

• enjoys full civil rights;
• is over 25 years old;
• has theoretical and practical knowledge in given branch of science, technology, art, crafts, as well as other skills, which may be considered expert knowledge. The knowledge of a candidate to the post of expert should be demonstrated with documents or other evidence. The president of the regional court, in which the candidate is to be appointed an expert witness, decides whether the candidate has demonstrated knowledge at an expert level;
• guarantees the due performance of the expert witness’ obligations;
• agrees to be appointed an expert witness.

Different requirements are set for candidates who want to become a sworn translator of sign language. A person who is over 21 years old and holds a “Second certificate – “T2” – sworn-translator of sign language” or title of expert of this language issued by Polish Association of the Deaf may be such an expert.

Before assuming the function, the expert witness is required to swear an oath before the president of the regional court where he is to be appointed, in the wording specified by law. A standing expert witness (in contrast with an expert witness not registered in the register of court experts, who has been appointed only for the purposes of one specific case, a so-called ad hoc expert witness) only swears an oath once before being entered into the register of expert witnesses. A standing expert witness relies on the oath previously sworn in each case.

An expert witness is appointed by the president of the regional court for a term of 5 years ending at the end of the calendar year. Expert witnesses are appointed for specific branches of science, technology, art, crafts or other skills. After all, every expert witness is an expert in a specific area of expertise or specialization.

Every president of the regional court keeps a register of the expert witnesses in accordance with above fields of expertise. The president also keeps a separate register of expert witnesses in the files for each expert; the register and lists present the witness’ address and date until which he has been appointed, as well as other information on his field of expertise.

Registers of expert witnesses are kept at the secretariats of the courts. They are made available, in particular, to parties to proceedings. Registers of expert witnesses are very useful when a party is preparing to launch civil proceedings, as well as during the proceedings. Before the proceedings, each party may establish whether an expert witness, who can help prove the given party’s position, is included in the register. A party may check the experience of the expert witnesses entered into the register and use that information in its motion to appoint an expert witness. This can also be done during the court proceedings.

Some courts post the register of expert witnesses in their websites. This is the case of the Regional Court in Warsaw. The Court has posted the details of the expert witness who have agreed to this (http://bip.warszawa.so.gov.pl/artykuly/237/biegli-sadowi#tabTitle). The data posted by the President of the Regional Court in Warsaw contains the expert witness’ name and specialization, the date of expiry of his appointment, his phone number, e-mail address and whether the expert witness has a website. The President of the Warszawa-Praga District Court has also posted a register of its expert witnesses in its website. It contains similar data to that of the register posted by the President of the Regional Court in Warsaw. Its structure also makes it easier to find an expert witness in a specific field of expertise (http://www.warszawapraga.so.gov.pl/index.php?id=3410&id2=789).

The expert witness appointed by the regional court is only a standing expert witness in the field of knowledge specified in the decision on his appointment.

An expert witness not included in the register of expert witnesses (ad hoc expert witness)

A person who is not included in the register of expert witnesses may also be an expert witness (a so-called ad hoc expert witness). The court appoints an ad hoc expert witness to participate in particular proceedings because of the expert’s special knowledge which is required to settle the case. In this case, the court settling the dispute and appointing the ad hoc expert witness for that case has to verify whether the expert has the appropriate qualifications. This happens differently to the standing expert witness, whose qualifications are only assessed once by the court president before his entry into the register of expert witnesses. Consequently, when a standing expert witness is called in a case, the presiding judge (namely the court) is not required to re-check the expert’s qualifications.

An ad hoc expert witness swears an oath before performing any activities. The wording of the oath is the same as that sworn by standing expert witnesses. If the court commissions an ad hoc expert to prepare an opinion in writing, it is assumed that swearing an oath “before starting any activities” takes place at the hearing at which the expert is called to “orally explain his opinion presented in the written opinion”. An ad hoc expert witness may be released from the obligation to swear an oath if both parties to the proceedings agree to this.

The expert’s refusal to take up his duties

A person who was appointed an expert witness (either standing or ad hoc) may refuse to take up his duties if:

• he is a spouse of one of the parties;
• he is a parent, grandparent, great-grandparent of one of the parties (namely a lineal ascendant);
• he is a child, grandchild or great-grandchild of one of the parties (namely a lineal descendant);
• he is a sibling (this also applies to the stepbrothers and stepsisters);
• he is a relative by affinity in the same line or degree as in cases described above in the second to the fourth points (the affinity arises between one of the spouses and relatives of the other spouse); or
• he is related to one of the parties by adoption.

A person called to be an expert witness may refuse to take up his duties as a result of an obstacle that prevents him from issuing an opinion (for instance, chronic sickness, travel for a long time, a lack of expertise in the given field, a lack of the specialist equipment required for formulating unambiguous conclusions).

The court will not release the expert witness of his duties if he is unable to prove to the court that the above circumstances are applicable. The expert witness cannot appeal against the court’s decision refusing to release him from his duties. Therefore, it is important for the expert witness to convince the court that he is unable to perform his duties for the above reasons.

The court’s discretion in refusing to release an expert witness from taking up his duties is limited. The court cannot deny an expert witness’ request to release him from his duties, among others:

• in cases in which the expert witness is one of the parties to the proceedings or is in such legal relations with one of the parties that the outcome of the case affects his rights or obligations (e.g. he is a co-owner of real property to which that the dispute applies);
• in cases in which one of the parties is the expert witness’ spouse, relative related lineally through consanguinity or affinity or relative related sideways through consanguinity to the fourth degree or a sideways affine to the second degree;
• in cases of people related to the expert witness through adoption, care or custodianship;
• in cases in which the expert witness was or currently is a legal representative of or was a legal counsel or an attorney of one of the parties.

The lack of release of the expert witness from his duties in the cases described in the four points above can constitute grounds for an appeal against an adverse judgement.

For clarification, lineal relatives are people who are ascendants or descendants of the other (e.g. grandfather, father or son). Lateral relatives are people from a joint ancestor not being lineal relatives (e.g. uncle, cousin or nephew). The degree of the relationship is specified by the number of births as a result of which the relationship was created. Consequently, for instance, a son and father are relatives to the first degree, while a grandson and grandfather are relatives to the second degree (both being lineal relatives).

In conclusion, it is insufficient to be an expert in order to be appointed an expert witness. The provisions of the law set a number of requirements of people who want to assume this responsibility. However, even after a person is appointed an expert witness, there are circumstances in which he will not be able to serve the court.

The parties to the proceedings should be especially aware of the situations in which the court is required to exclude an expert witness from a case. This also applies to the party which is expecting a favourable opinion. There is no point in receiving a favourable opinion and a positive outcome of the proceedings if the judgement can be overruled by the court of the second instance. This exposes the party to costs and extends its involvement in the case.