Comparative Aspects of Expert Evidence in Civil Litigation
| Author | Remme Verkerk |
| Published date | 01 July 2009 |
| Date | 01 July 2009 |
| DOI | http://doi.org/10.1350/ijep.2009.13.3.321 |
| Subject Matter | Article |
EXPERT EVIDENCE IN CIVIL LITIGATION
Comparative aspects of
expert evidence in civil
litigation
By Remme Verkerk*
University of Maastricht, The Netherlands
Abstract To resolve factual questions that require specialist knowledge in civil
cases, European Continental jurisdictions have traditionally used only
court-appointed experts. Common law jurisdictions have almost exclusively
resorted to experts retained by the parties. This article discusses the legal rules
on court-appointed experts in different Continental jurisdictions and contrasts
US and Continental rules on experts retained by the parties. These comparisons
aim to provide insight into the different methods to regulate the use of experts
in civil cases. In recent times, legislators in common law jurisdictions have
encouraged the use of court-appointed experts while Continental jurisdictions
gradually recognise the merits of hearing party-appointed experts. It is argued
that legal rules that have been used and tested in one jurisdiction may serve as a
source of inspiration for amending and improving rules in other legal systems.
Keywords Civil litigation; Expert witness; Comparative law; Court-appointed
experts; Reform
ften judges and lawyers are faced with scientific questions which cannot
be resolved without the help of specialists. At the non-adversarial end of
the spectrum, courts, most notably those on the European Continent,
are traditionally informed directly by an expert. At the adversarial end of the
spectrum, such as in North American jurisdictions, both parties each hire an
expert witness that subsequently informs the court or jury.1This article focuses on
doi:1350/ijep.2009.13.3.321
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2009) 13 E&P 167–197 167
O
1 See J. A. Jolowicz, On Civil Procedure (Cambridge University Press: Cambridge, 2000) 226 who
discusses the differences between English law (before 1999) and French law. Also see J. Langbein,
‘The German Advantage in Civil Procedure’ (1985) 52 University of Chicago Law Review 823 at 835 who
discusses the distinction between US and German law.
* Email: Remme.Verkerk@metajur.unimaas.nl. The author is employed as a researcher at the
University of Maastricht. He would like to thank the reviewers of this journal, Deirdre M. Dwyer
and Remco van Rhee, for their valuable comments on an earlier draft of this article.
Continental jurisdictions, most notably Austrian law, and contrasts them to some
of the practices in common law jurisdictions to highlight the differences that flow
from these structural and philosophical positions. This article further examines
the recent developments whereby procedural models that either only resort to
court-appointed experts, or exclusively turn to experts retained by the parties, are
increasingly replaced by ‘mixed’ procedural models.
The Continental expert as an auxiliary of the court
Expertise and its relation to judicial case management
Procedural codes on the European Continent have empowered judges to appoint
experts. These codes consider the expert to be a neutral and impartial auxiliary of
the court. Although there are similarities between Continental jurisdictions, the
court-centred approach to expertise is most rigorously applied in Austrian law.
In Austria, the relationship between the expert and the court should be under-
stood in the light of the duty of the court to manage the process of fact-gathering
and fact-finding actively (materielle Prozessleitung).2The influential 1895 Austrian
Code of Civil Procedure was based on a utilitarian doctrine that held that the civil
justice system served to safeguard the welfare of society as a whole.3Franz Klein,
who drafted the Austrian Code, believed society was best served if substantive law
was enforced; which in turn required that facts would be established in accor-
dance with the truth.4Klein had little faith in the adversary system that had
prevailed in 19th century Austria and argued it had led to excessive costs, made
the civil justice system ‘inaccessible to the larger part of society and too easily
abused by others’5and had turned litigation into ‘a war without a red cross’6. Klein
hence refuted the adversarial system and had proposed to empower the judge, as a
representative of the state, to guard the public interest in civil litigation.7In line
with Klein’s views, the 1895 Code of Civil Procedure, which is still in force today,
168 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
EXPERT EVIDENCE IN CIVIL LITIGATION
2 A. Zechner, ‘Der gerichtliche Sachverständige—Privater oder Beweisorgan’, Juristische Blätter,
108/13/14 (1986) 415 at 419.
3 F. Klein and F. Engel, Der Zivilprozess Oesterreichs (J. Bensheimer: Mannheim, 1927) 188.
4 Ibid. at 200.
5 F. Klein, Pro Futuro, betrachtungen über probleme der Civilprocessreform in Österreich (Franz Deuticke:
Leipzig und Wien, 1891) 22.
6 Ibid. at 39.
7 Klein and Engel, above n. 3 at 204. See for a historic perspective of the demise of adversarialism
in Austria: P. Böhm, ‘Der Streit um die Verhandlungsmaxime’ in H. Coing (ed.), Ius
Commune, Veröffentlichen des Max-Planck-Instituts für Europäische Rechtsgeschichte (Vittorio Klostermann:
Frankfurt am Main, 1978) VII, 136–59; P. Oberhammer, ‘Richtermacht, Wahrheitspflicht und
Parteienvertretung, Gesichtspunkte der “Arbeitsgemeinschaft Zivilprozess”’ in W. H. Rechberger
and P. Oberhammer (eds), Konfliktvermeidung und Konfliktregelung (Manzsche Verlags- und
Universitätbuchhandlung: Wien, 1993).
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