Use experts French proceedings

17 November 2006

Christian Curtil

The French courts make wide use of expert’s reports as a form of evidence. This is true across all areas of litigation including commercial and civil, defence of corporate crimes and administrative law.

All the French procedural codes anticipate that experts might need to give oral testimony in court. This could either be after submission of a written expert’s report or stand-alone testimony. However, except in criminal cases, it is very rare for experts to give oral testimony in court. In general, judges rely on written evidence and consider oral testimony to be redundant.

Expert evidence can be requested by either party or ordered directly by the judge when a technical question arises. It is up to the judge to designate an expert who he deems competent. A judge will usually select a name from a list of individuals that have been appointed by the various Courts of Appeal because of their renowned independence and expertise. The courts have created lists of experts in a wide range of medical categories, in addition to other professional disciplines such as architecture, interpreting, accountancy and engineering.

The job of the expert is to carry out his assigned task in writing within a set time frame and in accordance with the rules of procedure. This means that all documents used by the expert in creating his report must be given to all parties or to their lawyers. The parties and their lawyers will also be invited to attend any hearings or recording sessions. Furthermore, once the expert has completed his task, he will usually write a provisional report which is then sent out to the parties for comment. The final report will therefore contain the expert’s opinion, as amended in the light of any legal or factual comments which have been made.

In addition to any judge-appointed expert, parties may sometimes wish to use a “private document” as a piece of evidence. Even testimony written by a judicial expert who was not appointed by the judge will be considered a “private document.” This kind of testimony is considered private because, as it was not drafted in accordance with procedural rules, it may not be impartial. Recent case law indicates that any such evidence that is lawfully obtained will be admissible, provided it can be discussed in court in a manner that enables the parties to adduce other conflicting documents.

The main difference between a private expert’s report and a report drafted by a judge-appointed expert is that a private expert’s report may be contested by other evidence, whereas a judge-appointed expert’s report is considered to be conclusive.
Where expert reports contradict each other, a second expert’s report may be requested. However, both reports will have the same legal value. Judges are not bound by expert opinion or, indeed, by any kind of testimony. Therefore, in the end, it is the judge who decides the matter as it is presented to the court.