The actors of civil proceedings – the expert witness, part 1

Legal proceedings as a theater play

Legal proceedings can be compared to the theater play in which everyone plays their assigned role and acts in accordance with predetermined rules. Just like in a theater stage, the courtroom is filled with actors, fixed to their arranged positions. The judge in the center, the plaintiff to the right, the defendant to the left, and all other participants of the proceeding (such as the expert witness – court appointed witness, the translator or the witness) in front of the judge. And, just like in every other spectacle, the audience takes a seat facing the stage.

The court appointed expert (expert witness) is one of the essential, although seemingly secondary actor of civil proceedings. He is essential because his opinion has a large impact on the final settlement. He is secondary, because he does not take part in all civil proceedings and, if he participates, it is rarely from the beginning of the proceedings.

In this post, as well as in the posts to come, I will, among other things, describe: who the expert witness is, what his role is in civil proceedings, who can become one, what effect his report has on the legal proceeding, and whether his report can be questioned.

I hope that following posts regarding expert witness will help clarify their role in civil proceedings. Most importantly, I hope that they will help to avoid surprises in the courtroom.

The expert witness as an expert

In the civil proceedings, the expert witness plays, as the name suggests, the role of an expert. It is someone with a lot of knowledge in the field – knowledge stemming from either professional experience or conducted scientific research. The Code of Civil Procedure, which in the court proceedings replaces the filmic script and contains descriptions of all the roles, defines the expert witness as someone with special knowledge.

Special knowledge is connected to a specific area – it encompasses special, supplementary information that is not at the disposal of an average intelligent and generally educated person.

An expert witness serves his duty or conducts scientific research on the basis of his skill and knowledge, and benefits from multiple years of first-hand experience in the given field.

It is assumed that the expert witness is a professional, a specialist, an industry expert. The expert knowledge of the expert witness can include multiple and diverse areas of science, technology, art, craftsmanship, and trade.

The Polish law should never be the subject of the report of the expert witness. In this field, the court takes the role of the expert, using its obtained legal knowledge to adjudicate the case. An exception to this rule is knowledge regarding rules of reason and common sense, custom and  foreign law, in regard to which the report of the expert witness can be obtained.

The expert witness comes on stage in the later stages of the proceeding. Ideally, he is brought in after the parties have presented all the evidences at their disposal (including essential documents, witnesses’ testimonies, carrying out of an inspection, etc.). Due to his role in the process, introducing an expert witness to a legal proceeding at an earlier stage would not be reasonable.

The parties to the proceedings are in a conflict of interest (which means that each individual party wants the court to rule in its favor), and, what follows, the argumentation and proof that they both present are one-sided – only beneficial to the party that introduces them to the case.

When the conflict between the parties cannot be solved by a court without additional expert knowledge, the court has to seek support from an expert witness. The expert witness, being, as the name suggests, an expert in the given area, helps the court to evaluate the evidences gathered in the proceedings.

The expert witness presents his stance in the form of a (written or oral) report. The report is not concentrated on the facts presented by the parties, instead it draws conclusions on the basis of said facts. Conclusions that cannot be made without expert knowledge (special information).

The expert witness can only join a court proceeding when he is allowed to do so by the court. The introduction of an expert witness to the proceedings is based on court’s decision to admit expert witness’ report as a proof in said proceedings. The court only issues such decision if it decides that expert knowledge (in other words, special information) is required to adjudicate the case. The decision to introduce an expert witness to the case is, in fact, independently made by the court.  Even a bilateral request to introduce an expert witness to the proceedings from both parties does not oblige the court to do so. However, experience has shown that most requests for admitting the expert witness opinion as a proof, also those filed only by one party of the proceeding, are accepted by the court.

In the decision to admit expert witness’ report as a proof, the court should indicate the specific expert witness, the method, and the deadline for the presentation of the report, as well as indicate the factual circumstances on the basis of which the expert witness research should be conducted. The purpose of this is for the expert witness to not have any doubts as to what the subject of the report should be, and what the boundaries of his obligation are.

Parties represented by an attorney or legal advisor should be especially alert. Most courts are of the opinion that if the facts of the case give rise to possibility that expert witness’ knowledge is necessary to adjudicate the case, it is an obligation of the party to apply for the expert witness’ report to be admitted as a proof. A general rule of civil proceedings is that the party has to prove the facts presented in the proceedings. Hence, judges are of the opinion that accepting an expert witness report into the proceedings ex officio (as an initiative of the court, without filing a request by any party) frees the parties from their obligation to provide evidences and transfers this activity onto the court. A party that wishes to win a dispute must care for its own interests – especially by presenting all the available evidences to back up its claims, including filing a request to accept expert witness’ report as a proof in the proceedings. If a party represented by an attorney or a legal advisor does not issue such a request, it might, as a consequence, lose the dispute.

As the stance described above is taken by most courts, it is advised for the parties to file above discussed  request in all cases that include elements that, in terms of complexity, exceed experience of a regular person. This is especially relevant for disputes regarding construction, overdue payments (in cases where the dispute is more complex than that of a payment pursuant to an invoice), damages claims, where the dispute concerns technical matters (such as the efficiency of specific machinery, quality of delivered goods or technical flaws in a completed task) or financial matters (the evaluation of shares or stocks, the evaluation of disposed company assets), as well as actions concerning medical malpractice.

Knowledge about the role of the expert witness in civil proceedings would, however, not be complete without information who can become an expert witness and in what circumstances an expert witness can refuse to fulfill his duty. This will be the focus of the next post.