Experts, Use in Civil Courts

Within court systems, expertise is defined as the recourse by a judge or one of the parties to an expert who provides a specialized viewpoint and is knowledgeable on technical and scientific issues that emerge in litigation. Expertise integrates scientific and technical knowledge into legal decision making. The expert can belong to any professional group insofar as she is not acting as a legal professional. Indeed, the expert's legitimacy rests on her technical and scientific competence, which should not encroach on the judge's role in the courtroom.

Experts are regulated by the law of evidence and proof, as well as procedure rules. In comparative law studies, the main division of expertise is that existing in common law countries contrasted with that in civil law nations. One could object that this traditional distinction between autonomous legal traditions is less applicable, because of a process of convergence between both systems. Indeed, there is a trend toward a hybridization of legal systems through an international circulation of ideas and public policies, with France importing U.S.-derived procedures such as plea bargaining, or with the United Kingdom borrowing some French elements for its civil procedure reforms. Nevertheless, these two different ways of conceptualizing the procedural organization of expertise were structured historically, and they gave birth to two distinct models.

In the French judicial system and within some limits in other continental systems, procedure is not accusatory in nature but based on investigation and [Page 544]enquiry. It gives a prominent place to the judge who passes judgment and discovers and establishes the truth. “Where the Roman judicial culture searches for the substance of truth by attempting to establish an official discourse through the judgment of a magistrate, common law judicial culture tends to organize the confrontation of two versions so as to make public the most believable discourse” (Garapon and Papadopoulos 2003: 123). It is this search for truth rather than for what is believable that characterizes the civil law system, where the expert cannot play the same role as that found in the common law, which permits the expert to be recruited by the party who requests it. One needs to specify, however, that parties can always use other experts for trial preparation, but they do so in a private manner, in the form of consultation, and thus, this does not implicate judicial expertise as that term is used here.

The judicial expert is primarily the tribunal's expert, even if the party asking for the expert's services advances her fee, later to be paid by the losing party. Since the judge can consult the parties and can attempt to reach consensus, the judge is the final and ultimate decision maker over the expert, her control in the process, the range of specialty permitted, and the testimony or report's content.

To make her choice, the magistrate can call upon her own experience and network of sources, but she can also use more institutional tools such as a list of experts. Indeed, in France, the Cour de cassation (Supreme Court) at the national level, and all local courts and regional courts of appeal, establish such a list of experts with the title of “court expert.” However, this title does not guarantee that an expert will be necessarily called, because magistrates are entirely free, in civil cases, to choose whomever they want.

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