Opinion as a result of the work of a court-appointed expert’s work – expert witness, part 3

In my previous posts, I wrote, among other things, about when an expert witness should be appointed, why a lack of an expert witness can result in losing the case, who can become an expert witness and in which circumstances an expert witness can refuse to take up his duties. The time has now come for slightly more information about which elements an opinion should contain and how the opinion should be criticized.

Expert witness’ opinion as evidence in a case

The expert witness plays a role in civil proceedings by presenting an opinion to the court on the matter specified in the order admitting evidence from an expert’s opinion. In accordance with the provisions of the Civil Procedures Code, it is not the expert witness who is evidence in the case, but the opinion he prepares.

The opinion may be presented in writing or orally. The court decides on the form of the opinion. In the vast majority of cases, the court commissions opinions in writing.

The expert witness’ opinion should consist of four parts:

• the introduction;
• reports on the activities performed and the observations;
• the expert witness’ observations and responses to the questions set for the expert witness; and
• a justification.

Documents, on the basis of which the expert reached the conclusions presented in the opinion or the responses provided to the questions set by the court should be attached to the opinion.

The introduction to the opinion should contain its title, the legal basis of the opinion and its scope, which arises from the wording of the court order on the admission of evidence from the opinion of the expert witness. The expert witness should also indicate whether he is a standing expert witness or an ad hoc expert witness appointed for the particular case. It is also important for the expert witness’ specialization to be indicated.

The report on the activities performed and the observations should include, inter alia: a description of the facts on the basis of which the opinion was issued, a description of the actions taken by the expert, a description of the method and the way in which the studies were conducted, including the identification of the scientific materials used by the expert witness. If the expert used one of several available methods (as is often the case when valuing an enterprise or shares / stocks), he should indicate why the method he selected is appropriate in this case.

The expert should then present his conclusions and responses to the questions set for him by the court. The expert witness’ position should be presented in an unambiguous, categorical manner and must be a logical consequence of the circumstances specified in the earlier parts of the opinion.

The justification of the opinion, namely the conclusions and responses, should be formulated in an organized, transparent manner, which is also understandable to people who do not have expert knowledge. It should indicate and explain the reasons that led the expert to the conclusions presented in the opinion. The analysis of the justification of the opinion should lead to the conclusion that the expert’s statements are consistent, logical and based on the materials available in the case files, as well as the materials attached to the opinion. Depending on the subject, the opinion should refer to scientific materials showing that the expert’s position is not detached from the current state of knowledge.

If the order was for the preparation of a written opinion, the expert witness should provide several copies. Copies of opinions are usually served to the parties.

Relax … the expert witness’ opinion can be criticized, sometimes even effectively

In the case of evidence from an expert witness’ opinion, it should be remembered that the addressee of the opinion is the court that acts as an impartial arbitrator in the proceedings. It is the court that assesses the suitability of the opinion from the point of view of the procedural objectives that it is to satisfy, namely to enable the court to resolve issues that require expert knowledge.

The court takes into account the level of the expert witness’ knowledge, the way in which he justifies his position expressed in the opinion, the compliance of the content of the opinion with the principles of logic and general knowledge, the theoretical grounds of the opinion, as well as the extent of firmness of the conclusions expressed in it. The court accepts the opinion if it considers that the conclusions contained in it have been presented in a categorical, clear and convincing manner. In such a situation, the court sees no need for the opinion to be supplemented or for a new opinion to be prepared by another expert witness. Since it is accepted that the court is not required to aim towards a situation in which the parties are also convinced of the conclusions presented in the opinion, it is sufficient for the expert witness to convince the court with his opinion.

However, a party is not defenceless if it considers the expert witness’ opinion to be unacceptable because of substantive or logical errors or a lack of coherence or logic in the conclusions contained in it.

The expert witness’ opinion may be contested by the parties who may challenge it with all available evidence provided for by the Civil Procedures Code. Acts intended to challenge the opinion must be taken as soon as possible, so that the court does not have the time to become convinced of the conclusions presented by in the expert witness’ opinion. The party needs to demonstrate that the expert witness’ opinion is unsuitable for explaining the circumstances of importance to the case. The consequence of the unsuitability of the opinion is the need to take additional evidence from opinions of other experts or for the same expert witness to prepare a supplementary opinion, which the party should request by raising arguments against the opinion that is submitted to the case files.

A party may contest the professionalism, reliability or logic of the opinion, level of the expert witness’ knowledge, the theoretical basis of the opinion, the method of justifying the position, the degree of firmness of the assessments expressed in it, compliance with the principles of logic and general knowledge. A party may also contest the methodology used by the expert, the way in which he conducts his study, as well as the order of activities he performs, if this affected the conclusions contained in the opinion. Finally, the party may claim that the subject matter of the opinion exceeded the scope of the expert witness’ specialization.

It should be remembered that the arguments raised are to the point and specific. A party’s position as to the unsuitability of the opinion must be supported by a reliable argument indicating all the errors and inaccuracies of the opinion, which, according to the party, make the opinion unacceptable to the court. The court will accept the party’s request for a new opinion or supplementary opinion only if the party’s arguments convince him of the need to take such action.

Objections to the opinions are usually presented in a pleading prepared after the party has read the expert witness’ opinion. These same allegations may be presented at a hearing set by the court in order to allow the parties to question the expert.

A good procedural strategy is to consult an external specialist at the stage of the written position regarding the opinion. This applies, in particular, to exceptionally complicated commercial proceedings, where the expert’s opinion applies, for instance, to the valuation of the company, a reduction in the value of the shares / stocks, an estimate of the amount of damage suffered or the principles of operation of specialized machines.

The specialist engaged by the party can specify additional shortcomings, ambiguities, gaps or internal contradictions in the expert witness’ opinion. Such consultation enables the party to prepare more detailed and justified arguments and therefore increases the probability of achieving its intended purpose, i.e. the court orders the preparation of a new opinion.

During the hearing, it should be remembered that the questions asked of the expert must be related to the case, be within the scope of the expert opinion requested and only apply to the area in which the expert is a specialist.

In some cases, the Supreme Court considers it irrational to obtain an additional (third) opinion from the same expert witness. This applies to the situation in which the content or form of the additional opinion of the expert witness indicates that he is not trying to justify the correctness of his conclusions by broadening or deepening his arguments, but feels affected by the doubts reported or reservations raised and makes his position to date “rigid”, while he would like to treat the matter of its legitimacy as a matter of faith or trust instead of at the level of knowledge. In such a situation, the court is required to obtain the opinion of another expert witness.

If the opinion is not beneficial for the party, it is worth considering whether there are any grounds for excluding the expert witness.

The circumstance justifying the motion to rule out an expert witness may be the content of the opinion itself. The expert cannot be interested in settling the case. The expert only has to make it easier for the court to settle matters of importance to the proceedings, for which expert knowledge is required. Therefore, non-substantive comments expressing negative emotions contained in the expert witness’ opinion targeted at a party or its proxy may justify doubts as to his impartiality in the case and constitute grounds for his exclusion by the court. The same doubts justifying the exclusion of the expert witness will arise in a situation where the expert witness prepared an opinion for one of the parties before the proceedings were opened encompassing the same subject matter as the opinion ordered by the court.

The circumstances indicated here will also be grounds for excluding the expert.

It should be remembered that the expert witness may be financially liable for the improper performance of his function. The court will fine the expert witness up to three thousand zlotys for the unjustified failure to appear at the hearing, for the unreasonable refusal to swear an oath (more about the oath made by an expert witness can be found here), for the groundless refusal to submit an opinion or for an unexcused delay in submitting the opinion. The expert may also be required to reimburse the costs of the proceedings caused through his fault.

The expert can also be held criminally liable for making false statements in a situation where he makes false statements despite being instructed by the court about criminal liability.

The expert plays one of the key roles in the proceedings. However, it should be remembered that there are no infallible expert witnesses, while the party has the tools to undermine unreliably prepared opinions.

In the next post, I shall focus on the influence of the court-appointed expert’s opinion on the fate of the proceedings. Please continue reading.