The new Spanish Regulation on Civil Procedure, (which came into force on 8 January 2001), made some important changes in relation to the use of expert evidence. Evidence is regulated as that of an expert in those cases where opinion is offered by a person with special scientific knowledge, or technical skill not common to the layman. This expert’s contribution helps the judge to understand complex technical subjects so that the court may appreciate and/or evaluate the relevant facts in the dispute.
The expert can be nominated either by a party/the parties themselves or by the judge. Where the parties nominate their own experts, these are referred to as expert witnesses. Where they are nominated by the judge they are known as judicial experts. There are some important legal differences between the two types of experts, the most important of which are the processes by which they are nominated, and their respective participation in the judicial process.
A) Nomination: Both parties can nominate an expert that, in their opinion, has the special scientific knowledge or technical skill needed to assist the judge in understanding complex facts inherent to a matter in dispute. This expert does not need to have any academic degree or formal qualification relevant to the matter upon which his opinion is sought. However, if he does have one, the judge may well consider his opinions more credible than those of an expert unqualified in the area or field in which an opinion is sought. For this reason, the parties will be interested in choosing an expert with recognised experience and knowledge in evaluating complex matters of the relevant kind to the trial.
An expert witness can be disqualified or discredited on a legal basis. This means that one party can formulate an opposition to the opinion of the expert called by the other party. This can only occur in certain circumstances where the neutrality of the proceedings, the parties and the representatives is in question. This may include the situations, for example, where the expert is the spouse of one of the parties in the dispute; has a personal interest in the dispute; or perhaps is, or has been, in any dependent situation with anyone involved in the dispute.
Any opposition to the use of a particular expert has to be presented before the preliminary hearing of the dispute. The opposing party should declare his disagreement with the choice of expert and can present some evidence in support of any allegations made in respect of the expert.
B) Participation in the process: It is necessary to file the written opinion of the expert at the same time that the preliminary documents (the particulars of claim and defence) are filed. Only in certain qualified circumstances is it possible to file the expert evidence after the respective service of these forms. In such a case it is necessary for a party to inform the judge of its intention to present expert evidence at a later date in the proceedings. Where an expert opinion becomes necessary as a result of the contents of a claim/defence served by the other party, it is permissible to file the expert opinion up until at latest, 5 days before the commencement of the trial (Query: when the term “present” is used do we mean disclosed, or do we mean actually served on the other side for inspection etc? The term “present” is used with the same meaning than “to file” or “to lodge”).
The expert witnesses can participate in the trial if the parties make an application in their preliminary documents for their participation and the judge accepts such requests. During the trial the parties can ask the expert(s) to make a complete explanation of their opinions; can ask for an explanation on one issue alone; can ask some questions or raise objections in order to clarify and explain their opinion. The parties can also ask for an expansion in their opinions, and can make a critique of them. The judge can also ask questions, but he can not ask for an expansion in the content of the document filed.
The law does not contemplate that each party´s expert will be allowed to be cross-examined. As the law is silent on the issue, the cross examination is a possibility depending on the parties’ requests and practice.
The expert´s professional fees are assumed to be initially covered by the party instructing the expert for the purposes of gaining his opinion. However, these fees are included in the judge’s assessment of costs so that the losing party will have to pay the costs relating to the successful party’s expert unless the judge makes a different order. This is a recent amendment to the law.
A) Nomination: The parties can ask the judge to nominate an expert. If this is required, the parties must file the request with the preliminary documents (Claim form/defence). Where this procedure is followed, the judge must nominate an expert within five days of the request by the parties to do so.
The parties can agree on an expert taken from a range of suggested persons or institutions. It is also possible for the parties to draw straws to determine the choice of expert. In this case, the expert will be elected from a list composed of various names from professional groups, official academies and relevant institutions. In the case of judicial experts, and in contrast with the legal regulation for expert witnesses called by the parties, the expert must possess an official degree or a recognised special knowledge in the matter upon which his opinion is sought. For this reason a judicial expert’s opinion often has greater credibility in the eyes of the judge than that of an expert witness called directly by a party.
It is not possible for the parties to exercise any control over the expert. For this reason it is important to be very diligent in electing the appropriate person from any possible list, particularly when the expert’s role is to assist in the understanding of what are often complex issues. So, we can affirm that the decision of asking for a judicial expert is a strategic decision that the party will have to make considering his current situation in the dispute.
In terms of nomination by the judge, the parties can object to the expert - this means that a request for objection/rejection has to be made against him. It is possible to request for objection if there is a professional relationship between the expert and one party or one of the disqualifying criteria (mentioned above) applies to the expert witness. It is possible to object the expert during the trial.
B) Participation in the process: The judicial expert will file a written opinion within a period determined by the judge. In practice, it is very common for the expert not to file his opinion within the established time frame and, often necessary to change the trial date.
The judicial expert will appear at the trial when the parties request or when the judge decides. It is possible for the judge to ask for an expansion of the expert’s opinion at trial.
The judicial expert´s professional fees will be included in the court’s assessment of costs, and the losing party will have to pay these if the judge does not make a different order.
If the judge says nothing in relation to the costs and both parties made the request for the expert, the costs payable in relation to him will be divided between them.