The significance of the evidence from the court-appointed expert’s opinion on the outcome of the proceedings – expert witness, part 4

After discussing the role of an expert witness in civil proceedings, who can be an expert witness and the ability to challenge the opinion of an expert witness, the time has come to explain what significance a court-appointed expert opinion has on civil proceedings.

Although no hierarchy of evidence has been provided for in civil proceedings and, in theory, all the evidence should be given the same importance, it should be emphasized that the opinion of a court-appointed expert can affect the outcome of the proceedings. First of all, this is because the court cannot make findings which are in conflict with the court-appointed expert’s opinion submitted to the case files if it is correct and different arrangements are not supported by other evidence gathered in the case.

Clients frequently ask if they can submit an expert’s opinion prepared on contract to them before the start of the proceedings or during the proceedings (a so-called private opinion).

The answer to this question is affirmative – yes, such an opinion can be presented to the court. However, the impact of such an opinion on the outcome of the proceedings differs to what it seems to clients. The disadvantage of a private opinion is that the court cannot treat it as being on par with an opinion prepared by a court-appointed expert. Likewise, a private opinion cannot replace evidence from the opinion of a court-appointed expert.

In the meaning of the provisions of the Civil Procedures Code, the expert’s opinion constituting evidence from an expert witness, in the meaning of these provisions, is only an opinion submitted to the case files by a person appointed by the court (i.e. a standing court-appointed expert or an ad hoc court-appointed expert). Under no circumstances will the court consider an opinion prepared for a party as an opinion of a court-appointed expert, even if it has been prepared by the country’s greatest authority.

The position of the Supreme Court remains unchanged. According to this position, even an opinion prepared by a standing court expert witness prepared on contract to a party and submitted to the case files cannot be treated as evidence from an opinion in a case.

Private opinions prepared on contract to the parties, either during the proceedings or before their initiation, are private documents. If they are accepted by the adjudicating court as evidence, they should be treated as an explanation of the party submitting that opinion, constituting support of the position of the party, taking into account expert knowledge. A private opinion may, however, be an argument in favour of the court’s admission of evidence from an expert opinion.

Therefore, the party should not withdraw from submitting a request to take evidence from the opinion of a court expert, even if it attaches the expert opinion to the case files. The withdrawal from submitting an application can lead to losing the case (more in part 1 here).

In summary, I do not recommend counting on the fact that a private opinion presented to the case files can replace evidence from an expert witness’ opinion. The lack of request to admit evidence from an expert opinion may result in the loss of the case and may be considered a lack of due diligence of the attorney-at-law or legal counsel in representing the client’s interests.