The Expert Valuation Witness and the Different Procedural Models in European Court Proceedings . Associate Prof. (Dr. hab. Magdalena Habdas

Agenda The role of the expert witness The American adversarial litigation model The English adversarial litigation model The inquisitorial litigation model (continental Europe) Challenges in both litigation models Conclusions

The expert witnesses and his/her role UNIVERSAL ASSUMPTIONS A person with a high degree of skill and knowledge in a particular subject, exceeding the layman’s level of knowledge in that field Assist the decision maker/fact finder (judge or jury) in understanding the presented evidence, in assessing the facts, in understanding the truth, in determining causal links among occurrences the fact finder is not bound by the expert opinion

THE EXPERT IN VARIOUS LITIGATION MODELS ADVERSARIAL vs. INQUISITORIAL MODELS ADVERSERIAL: -judge as a referee of the proceedings -important managerial role in pre-trial stage (discovery/disclosure) -gatekeeper: admissibility of evidence (USA, Canada, not England) -more passive in trial stage than civil law counterparts INQUISITORIAL: -judge as manager and fact finder -no evident distinction between the pre-trial phase (discovery) and the actual trial -the parties must prove their case and produce evidence -active role of the judge (order of addressing issues, examination of witnesses, selection of experts, etc.)

THE ADVERSARIAL MODEL USA: - pre-trial stage – each party hires an expert witness, the expert essentially is hired to support the party’s view by providing a possible scientific explanation, no express requirement for the expert to be objective gatekeeping (jury trials!): judge evaluates whether the expert witness may be admitted in trial (the Daubert standard: can/has the method been tested, known or potential error rate, peer review and publication, general acceptance within the scientific community) presentation of testimony subject to cross examination by other party

THE ADVERSARIAL MODEL ENGLAND: - most trials are bench trials (no juries),the judge is the factfinder, pre-trial: parties select their own experts express legal requirement of objectivity: the expert owes a duty to the court to provide an independent opinion that overrides the instructions of the commissioning party low admissibility standard – does the expert have necessary qualifications and is his opinion relevant to the case judicial decisions contain detailed review of expert evidence (the judge thus assesses if the claim was proven) single joint experts may be appointed by court in routine cases (but party experts also allowed)

THE INQUISITORIAL MODEL the expert is appointed by the court the expert is not in fact a witness but a separate source of evidence the motion to appoint an expert usually comes from the litigants the judge may independently decide that an expert is needed reports are usually written and are the basis for further questions – the experts is asked to testify and answer questions of the court and the parties if the expert opinion is discredited, causes serious doubts, the court may appoint a different expert the court may also ask to supplement or correct the report if new or more precise issues arise at time of examination

THE INQUISITORIAL MODEL – party experts in German and Polish law party experts are not formally recognized in procedural law, similar in other continental European jurisdictions no formal role in the proceedings, unless a given expert can also be treated as a witness of a fact in practice parties do commission expert opinions and submit them to court problematic: what is the evidentiary value of a report prepared by a party expert? Germany: if a party expert’s opinion contradicts the court’s expert’s opinion, the judge must take this into consideration (reasoning of judgment) Poland: a contradictory party expert report may convince the judge to appoint another court expert slow progression towards acknowledging the role of party experts

Challenges ADVERSARIAL – USA expert shopping problems with objectivity (biased experts) juries swayed by experts who withstand cross-examination better (more confident, persuasive rather than professionally competent) cases not decided on merit: juries unable to grasp complex expert testimonies ADVERSARIAL – England low admissibility standards – junk science in court, appointment of single court experts – danger of inaccuracy as no adversarial debate

Challenges INQUISITORIAL the judge’s over-reliance on the court expert’s opinion – court’s expert as the de facto decision maker problematic findings: often only one scientific theory is presented/supported extending the length of proceedings (time necessary to appoint an expert and receive the opinion) unclear status of increasingly employed party experts

CONCLUSIONS the American litigation model and expert witness approach seems most extreme and controversial A balancing act: efficiency of proceedings vs. pursuit of the truth; objectivity of experts vs. over-reliance on single experts adversarial cross-examination vs. actual merits of the opinion a visible move towards a mix of party appointed experts and court experts in both litigation models a need to clearly define the role of both types of experts in litigation the requirement of all experts to be objective and have a duty to the court importance of professional standards and liability (exclusion of „junk” professionals) – ensuring EXPERTS are in fact professionals with adequate knowledge, skills and training