International Association of Judges

2^nd Study Commission

Civil Law and Procedure

Replies of the Italian Delegation to the

Questionnaire for the 2015 meeting

(Barcelona – Spain, 4-8 October, 2015)

EXPERT EVIDENCE

Introduction A. – The role of expert evidence in the Italian legal system.

In the Italian civil legal system, technical expert advice can be provided by an expert during the part of the proceedings that deals with evidence. Its purpose is to provide technical support to the judge or to the parties. In civil proceedings, there are two different kinds of expert: the court technical expert appointed by the judge (“Consulente Tecnico d’Ufficio,” or “CTU”) and the expert appointed by the parties (“Consulente Tecnico di Parte,” or “CTP”).

The court decides on its own motion whether (or not) to appoint an expert, at what stage of the procedure and on what questions; a party may make suggestions, but the court is free to determine such issues. The CTU is an assistant of the judge, who performs his or her activity at the judge’s request, when the lawsuit requires specific technical skills. The expert becomes therefore an officer of the court. He or she is not a witness, is in no way linked to a party, and is assumed to provide the court with independent technical and scientific knowledge.

As a general rule, the expert’s report is not considered to be proper evidence, as it is required to supplement the activity of the parties, upon which falls the burden of the proof (according to their position in the case, whether plaintiff or defendant: see article 2697 of the Italian Civil Code) and provide the judge with technical information through a non-binding report. Before giving evidence, the CTU takes an oath. The judge then outlines the questions which the CTU must, in strict terms, answer through his or her expert report. The judge sets as well the deadline within which the CTU has to deliver his/her report.

The expert then holds inquiries, which the judge has commissioned. He or she provides the judge with any clarifications that the court may need. If necessary, the expert can be examined by the court in order to clarify the report, but oral examination is not the usual method of obtaining the expert’s answers. If the court is satisfied with the expert’s report, it will be used as a basis for the final decision. However, the court is not bound by the expert’s opinion; it is free to decide the case differently. When a court expert is appointed, the parties may require the assistance of CTPs. The CTPs have the right to attend all sessions and activities performed by the CTU, can comment on the CTU’s work and file a report, which supports or criticises the court expert’s report.

Therefore, if the judge deems necessary to have technical assistance on specific issues or for the entire proceedings, he or she must issue an order to appoint an expert and also fix the hearing for his appearance. In this order the judge also gives leave for the parties to appoint a CTP. According to article 61 of the Italian Code of Civil Procedure, the CTU must be chosen from the “Albo dei consulenti tecnici d’ufficio.” This is a register which is divided into categories, each of them includes people with specific professional and technical skills. Each court has such a register and it is managed by the President of the court. The CTU must be neutral and impartial and cannot be connected to one of the parties (e.g. husband, wife or relative, etc.). This also means that the CTU must not have any interest relating to the proceedings or in another proceeding, which is pending on the same issue.

When appointed, the expert is obliged to accept his/her own appointment and may only reject it for well-grounded reasons, which the judge shall evaluate. Therefore, although the expert has the right to abstain from giving advice to the court, the judge must also comply with the second paragraph of art. 61, according to which the choice has “normally” to be done within the above-mentioned register (which means that, in some exceptional cases, the judge can also appoint an expert whose name does not appear in the register). The parties may also object to an expert’s appointment if there is a conflict of interest or he/she is not impartial.

Both kinds of experts are paid by the parties. When the judge appoints a court expert, he/she issues a decree ordering all parties to pay fees and costs of the expert. Usually such amounts of money are shared in equal parts by parties, but the expert has the right to be paid in full by each of them, as parties are jointly liable towards the court expert. At the end of the proceedings the judge decides what party has to bear the costs of the process (usually the loser). This party will have to reimburse other party/parties (usually the winner/s) all sums they have already spent for legal fees, court’s and parties’ fees and expenses.

Expert evidence in the Italian civil legal system is ruled by some articles of the Code of Civil Procedure (see articles 61-64, 191-201 of the Code of Civil Procedure; articles 13-23 of the provisions for the implementation of the Code of Civil Procedure), as well as by special laws (e.g. Act 8^th July, 1980, No. 319 and Ministerial Decree 30^th May, 2002, on the calculation of court experts’ fees).

Information on ways and methods to be officially registered as technician court expert are available on the Internet (see, for an example, the following web page of the Turin Civil Court: http://www.tribunale.torino.giustizia.it/it/Content/Index/28820; the official register of the Civil Court of Turin is available at the following web page: http://www.tribunale.torino.giustizia.it/it/Content/CTU/25775).

Introduction B. – The role of the Council of Europe in the field of expert evidence and the international scenario.

In 2008 the CEPEJ (acronym for: Commission Européenne pour l’efficacité de la justice – European Commission for the efficiency of justice) of the Council of Europe approved a document called “SATURN Guidelines for Judicial time Management.” The paper had been prepared by the Steering Group of the SATURN Centre for judicial time management (CEPEJ-SATURN) of the Council of Europe. In its current version, adopted by the CEPEJ in its 24^th plenary meeting (Strasbourg, 11-12 December 2014), such guidelines have a chapter whose title is “C. Co-operation and monitoring of other actors (experts, witnesses etc.).”

CEPEJ is aware that many of the questions related to expert evidence have a close link to the theme of judicial efficiency and time management. Therefore the related rules provide for that “1. All participants in the process have the duty to co-operate with the court in the observance of set targets and time limits. 2. In the process, the judge has the right to monitor the observance of time limits by all participants, in particular those invited or engaged by the court, such as witnesses or experts.” (see: https://wcd.coe.int/ViewDoc.jsp?Ref=CEPEJ(2008)8Rev&Language=lanEnglish&Ver=original&BackColorInternet=eff2fa&BackColorIntranet=eff2fa&BackColorLogged=c1cbe6).

The issue of expert evidence has also formed the object of another important CEPEJ document.

I am referring to the “Guidelines on the role of court-appointed experts in judicial proceedings of Council of Europe’s Member States,” text adopted by CEPEJ at its 24^th Plenary meeting (Strasbourg, 11 – 12 December 2014). The paper had been drafted by the Working Group on quality of justice (CEPEJ-GT-QUAL) (see: https://wcd.coe.int/ViewDoc.jsp?Ref=CEPEJ(2014)14&Language=lanEnglish&Ver=original&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864).

The purpose of this document is to provide a reference framework for the legislator, the judge and all parties to a lawsuit as regards the role of a technical expert, in cases where the expert is instructed by the court, during the judicial decision process.

It addresses many crucial subjects such as: the “nature” of the expert (only natural person or also body of persons); the role of staff/employees of experts; the number of experts for a single case; selection criteria; selection procedure and guarantee of quality standard; duty of the parties to hear the expert and right to decline him/her; instruction of the expert by judicial appointment; legal remedies against the appointment for the parties; the court’s means of control after the appointment and during the selection procedure; requirements for the preparation of the expert opinion (assessment); form of the expert opinion; fact-finding by experts themselves; preparation by local on-site inspection or examinations; obtaining additional and supplementary reports or assessments; requirements concerning the content of the expert opinion; verbal or written expert opinion; interim report or final report; production of the expert opinion within a reasonable time; instructions of the court and of the parties; expert’s (personal and procedural) duties; expert’s (personal and procedural) rights; possibilities for follow-up to the expertise and sanction in cases of breaches of duty; effects of the expert opinion in the lawsuit or trial.

With a view to judicial efficiency and case management, it is important to underline some duties of the judge vis-à-vis expert evidence.

In this framework—and in line with the Council of Europe’s documents which I have just mentioned—we can consider some recommendations of the so-called “Strasbourg Programme” drafted in 2001 by the President of my Court. Actually, this initiative, which was the first experiment of case management tested in Italy, aiming at obtaining a significant reduction of judicial backlogs and the acceleration of the treatment of civil cases, dedicated a special attention to the monitoring, by the judge, of some relevant “players” of the civil proceedings.

So, article 14 of the list of recommendations to Turin Court’s judges, enshrined in the mentioned “Strasbourg Programme,” provided, among other things, as follows: “Judges should periodically and systematically check all cases in which they are waiting for an expert to draw and submit an expertise, in order to ensure that deadlines for the submissions of such expertises are met. Deadlines for the submission of expertises should not exceed 40/50 days. In case of not compliance Judges should replace the expert with another one. Prorogations of such deadlines should be awarded only in exceptional cases and upon motivated requests (e.g. because parties, under the assistance of the expert, are trying to reach a friendly settlement of the dispute). Judges should always empower experts to try to find an amicable solution of the case. Among the vast number of experts available, judges should prefer those who have proved to be able to help parties to find a friendly a friendly settlement. Before appointing an expert, Judges should invite parties to submit suggestions on the questions to be asked.”

1. Is training and accreditation of experts required in your jurisdiction?

Accreditation of court experts is required for the inscription in the court’s official register of court experts. Accreditation is decided by a special committee presided over by the court’s President. In order to be accredited, the expert has to submit curriculum vitae, showing high school/university degrees, the training he/she received as well as a record of previous activities.

2. What powers do you have as a judge to control the use of expert evidence?

As already said, the use of expert evidence is decided by the judge, when he/she appoints a court expert. In this case the judge submits to the expert one or more technical questions the expert has to reply to; e.g.: describe how that particular accident took place; what was the speed of the car at the moment in which the accident occurred; whether that surgeon followed criteria of due diligence of that particular profession in that particular case; assess damages suffered by a given person as a consequence of a certain event; describe what situations caused water leaks and stains on a wall, etc.

Apart from the possibility to appoint parties’ experts to support activities of a court experts, parties are also free to submit to the judge expert evidence from reports done by technicians appointed by them. Of course it is up to the judge to decide what weigh he/she has to give to such evidence. The same is true also for court experts evidence, as the judge is always considered, in our legal system, as “peritus peritorum” (“the expert of experts”): so the conclusions of courts experts are never binding on the judge.

3. How can the tendency towards relying on excessive numbers of experts be prevented or managed?

In a relevant number of cases there is no way to replace expert evidence. The growing importance of technologies in modern life, as well as the “complexification” of social, economical, political and cultural aspects of human relations, make it impossible for a judge to decide an increasing number of crucial questions without the help of an expert. Moreover, the tendency (at least in my country) to provide for more and more strict and “punitive” legislation on civil and disciplinary liability of judges compel courts to rely more and more on experts, in order to reduce the range of possible mistakes in court decisions.

If the question refers to the number of experts in a case, than we have to point out that normally the Italian civil judge will appoint no more than one court expert for a given case. Each party can appoint no more than one party expert to attend the court expert’s working sessions (see article 201 of the Code of Civil Procedure). Of course no legal provision prevents parties from depositing in their files and submitting to the judge as many technical expertises as they wish, but the judge can disregard them, simply remarking they have not been made by an expert “super partes,” such as the court expert appointed by the court in that case.

4. Are there means of avoiding expert bias, and if so, how?

According to article 63 of the Italian Code of Civil Procedure, court experts can be challenged for the same reasons for which judges can be recused. It is up to the judge who appointed the expert to decide on the application of the concerned party to dismiss the expert. If experts’ position is such that their neutrality and impartiality are not ensured, they must withdraw or may be challenged by the concerned party. Situations to be taken into account in this framework are those described by article 51 of the same Code: mainly, if the expert has some kind of personal interest in the case, if he/she is a relative or a close friend of one of the parties, or of their lawyers; if he/she has grave personal enmity with one of the parties, or is creditor/debtor of one of the parties, or of their lawyers; if he/she has given advice in that case, or has been heard as witness; if he/she is guardian, employer, agent or representative of one the parties.

These rules do not apply, of course, to parties’ experts (CTPs), whose duty is to give an interpretation which is favourable to parties who appointed (and are going to pay…) them. We could even say that such experts have a sort of contractual “duty” to be “biased.” Parties’ experts are not considered a source of evidence. They are the technical longa manus of the parties, and therefore they are neither neutral nor impartial. Correspondingly, they cannot provide the court with reliable independent knowledge. Of course the judge has to take into consideration this particular situation and cannot base his/her final decision on opinions of experts appointed by parties, without giving specific, detailed and circumstantial reasons for this kind of decision (e.g. the report by one of the parties’ experts has been supported by witness or other factual evidence, whereas the conclusions of the court expert are at odds with such evidence and there is no logical explanation which can explain this).

5. How are experts to be prevented from usurping the role of the primary finder of fact in civil matters?

For the reasons given while replying to question No. 4, very often we must recognize that court experts do happen to be the primary finders of fact in civil matters. Just to give an example among the many possible cases, it happens quite often that a person claims damages from a car accident that never occurred (sometimes with the complicity of the alleged “author” of the crash): in this situation only the court expert, comparing kinds and depths of marks on the cars and on the tarmac, can explain whether or not the accident actually took place.

Apart from this, I have already pointed out that the judge is the “peritus peritorum.” It is therefore up to the judge, with the help of technical advice provided by parties’ experts, to verify that findings of the court expert’s report are true and reliable.

Furthermore, we have to take into consideration that questions related to legal issues cannot be addressed by the expert (the only field in which an expert can be asked to provide a legal solution is the one related to foreign law, when an Italian court is called to apply legal principles of a foreign country, as an effect of conflict law). So it happens many times that the judge, knowing that the battle between lawyers will be on two or more possible legal options (depending, for instance, on the interpretation of a certain provision of the law), can ask the expert to prepare different technical solutions, according to the possible different legal scenarios. At the moment of the final judgement the judge will chose the legal solution he/she deems appropriate, and consequently will use the part of the court expert’s report which presupposes that legal solution, while discarding the others.

Turin, 8^th April, 2015.

Giacomo Oberto

Judge – Court of Turin (Italy)

Secretary-General of the IAJ