Is expert evidence permitted and how is it dealt with? Is the expert appointed by the court or the parties and what duties do they owe?
Litigation & Dispute Resolution
Expert witnesses are permitted. The purpose of an expert witness is to provide the court with observations based on the particular experience that the expert witness possesses. It is only the parties that can invoke expert witnesses in commercial disputes although they are formally appointed by the court, which may also suggest to the parties that an expert witness should be heard. Prior to the main hearing, an expert witness shall file a written statement to the court. An expert witness shall give oral testimony under the same conditions as a witness of fact, if any of the parties request it or if the court deems it necessary.
Expert evidence is allowed and can be requested by any of the parties or required by the court.
The expert is appointed by the court, and must perform his/her functions with diligence and impartiality.
However, if both parties agree to a certain expert, the court should appoint this specific expert unless there are reasonable grounds to believe that the expert in question is not capable.
Expert evidence may be carried out by one single expert or - by request of the parties or when the court reaches the decision that expert evidence is required due to the complexity of the matter - by a team of up to three experts. In this situation each party appoints one expert and the court appoints the third.
Expert evidence is permitted and it is even very common for a court to refer the matter to an expert to examine and submit his findings on.
Experts can be appointed by the court pursuant to a preliminary judgment where the court refers the matter to an expert from the list of its registered expert. The court highlights the tasks/mission of the expert, his fees and the party bearing the same in the preliminary judgment. The parties can also agree on a certain expert to be appointed.
When the court decides to refer a matter to an expert and he is duly appointed, he then schedules the first meeting with the parties for them to submit their documents and memos. The expert can schedule several meetings with the parties and may request to visit their offices and examine their records. Each meeting is recorded and the parties sign the minutes of the meeting.
Once the expert concludes his mission, he submits his report with his final findings to the court along with all documents and minutes of meetings. Thereafter, the parties comment on the report.
The court may then call in the expert for clarifying certain matters, or order the expert to further examine the parties’ comments and submit a final report. The court may also refer the matter to a different expert/s.
The Court is not bound by the expert’s opinion, and if it issues a judgment contrary to the expert’s opinion, it shall state the reasons for doing so in the judgment.
The parties may also submit independent expert reports as evidence to support their claims.
Where technical or complex financial issues are raised, it is common for judges to appoint an expert or experts as advisors to the tribunal. It is within the tribunal's discretion whom it appoints as an expert, and to accept or disregard all or part of the expert's findings, but, ordinarily, the determination of technical or complex financial issues falls to the expert. The normal procedure is for the court to ask the parties to each put forward three experts, and if one appears on both parties’ lists, that expert is chosen. If the parties cannot agree on the choice of expert, the court will select the expert from a list of approved experts.
Expert witnesses are permitted. They can either be appointed by the court or relied on as an expert witness by a party. Expert witnesses usually present a written report before the main hearing. They also usually give testimony and may be asked questions by both parties’ attorneys and the court. Before giving evidence to the court, the expert witness will be asked to confirm by way of affirmation upon his or her honour and conscience that the expert assignment has been performed and will be performed conscientiously and to the best of his or her convictions.
Expert evidence is permitted in both federal and state jurisdictions.
In federal jurisdictions, expert witnesses can be hired by parties or appointed by the court. Court-appointed experts must advise the parties of any findings that the expert makes, may be deposed by any party, may be called to testify by the court or any party and may be cross-examined by any party. If a party hires an expert witness, that party must disclose the expert’s identity to the other parties at least 90 days before trial or, if the evidence is intended solely to contradict evidence on the same subject matter identified by another party, within 30 days after the other party’s disclosure. The party must also accompany its disclosure with a written report signed and prepared by the expert, unless otherwise ordered by the court. The report must include a complete statement of all opinions the expert will express and the basis for them, the facts or data considered by the expert in forming them, any exhibits that will be used to summarize or support them, the expert’s qualifications, a list of other cases in which the expert testified as an expert and a statement of the compensation the expert will be paid for the study and testimony. The trial court is then charged with determining whether an expert’s testimony is admissible, which requires an assessment of the scientific validity of the expert’s work.
Expert witnesses are handled similarly in state courts, but the rules governing disclosures and admissibility may differ by jurisdiction. For example, in New York, parties must make expert disclosures, but they are not subject to the same stringent disclosure deadlines as in federal jurisdictions.
Expert evidence plays a crucial role in Austrian litigation. It is for the court to decide whether expert evidence is required and to select and appoint a suited person as expert. But the parties have an opportunity to state their views regarding the appointment of an expert. Opinions rendered by court-appointed experts are considered to be a specific kind of evidence under Austrian law. Reports submitted by party-appointed experts are permitted as well, but do not have the same status as opinions rendered by court-appointed experts. According to most recent case law, opinions by party-appointed experts are insofar relevant as court-appointed experts have to deal with their findings in their own reports.
Court-appointed experts function as assistants to the judge. They primarily owe a duty to the court and need to be impartial. Moreover, court-appointed experts can be rejected on the same grounds as judges (e.g. because of a lack of impartiality). The judge poses a set of questions to the appointed expert and instructs him or her with the delivery of an opinion within a certain time. Usually, experts render their reports in writing and the parties are entitled to question the expert at a hearing. In practice, judges tend to rely (too) heavily on expert opinions, especially in complex litigation.