Expert opinions in litigation cases

According to the applicable civil law procedure, if the court appoints an expert or a committee of experts, the parties in the file are entitled to appoint a counsel expert to assist them when drawing up the expert report and to draft a separate opinion if needed.

Based on these provisions, a practice that once was unique to arbitration is now being imported into litigation cases: cooperation between attorneys and the relevant experts in construction, accounting, auditing, valuation and so on.

Advantages

The novelty of the approach is that the cooperation with the counsel expert starts much earlier, before the statement of claim or the statement of defence is drafted. Thus, the strategy and arguments in the file are prepared by working together with the expert.

Working with the expert helps the attorney better understand the technical aspects of the case and formulate clearer arguments. It also allows evidence to be submitted to the court early. Often it is difficult to present evidence of certain allegations, such as faulty execution of construction works, the value of damages, the value of certain assets, the impact of accounting policies, the economic and financial ramifications of certain contractual clauses, the effect of certain conduct from the point of view of competition law, and so on.

In such cases, the parties usually make their own allegations and then the court orders the expert report at the request of the party attempting to prove its claims or defence. Now, a preliminary expert report may be prepared and submitted to the court together with the first procedural act submitted in the file. Though such a report may be biased, having been prepared at the request of the party, it still puts the party in a better position than if it had not submitted any evidence at all. Romanian procedural law recognises the value of documentary evidence to such expert reports prepared at the request of a party.

Party-appointed vs. court-appointed experts

An expert report prepared at the request of a party will offer guidelines to the court-appointed expert. If the court decides to appoint an expert or a committee of experts, these experts will unconsciously be guided by the opinion of the party-appointed expert, as they usually refer first to the expert opinion already submitted to the file.

Cooperation with an expert from the early stages of the case will give the expert more time to study the file, form an opinion and present it convincingly. Compare this to a scenario in which the party-appointed expert is designated when the court orders an expert report. In that case the expert report must be quickly drafted before the hearing and the party-appointed expert may not have enough time to fully grasp the specificities of the case.

Given that litigation cases are becoming increasingly complex, entailing more and more specialised technical issues, involving an expert who can clarify these issues is certainly helpful for courts of law. Cooperating with an expert from the early stages of the procedure has also proved helpful for the attorneys working on the case to better understand, argue and prove their legal arguments in court.

authors: Iustin Armașu, Rebeca Dan