Judicial Expertise and Investigative Measures
Explanation
This presentation is a simplified and illustrative explanation of the rules regulating the work of the judicial expert in the Code of Civil Procedure, and it is not a substitute for the explicit legal texts. The court undertakes the appointment of the expert (l'expert), and possesses full authority in determining the scope of his mission, as it may decide to expand or restrict the mission (l'extension ou la restriction de la mission) depending on what the dispute requires.
The expert must comply with the deadlines set for him (le respect des délais) to accomplish his mission without any delay. To enable him to perform his technical duty, the law allows him to request the litigants (les parties) or third parties (les tiers) to hand over to him any document that helps in executing the mission, and it also authorizes the court to order the handover of these documents when necessary.
The expert establishes the facts he observes in a written report (le rapport d'expertise) which he submits to the court, unless the court decides that such information be presented to it orally. The court may at any time summon the expert to complete or clarify missing or ambiguous information, whether in writing or orally in the hearing, while the expert also has the right to request to be heard by the court at any time.
The legislator was keen to address the cases in which the continuation of the expert is impossible, thus providing for his replacement (le remplacement de l'expert) in the event of the acceptance of the recusal (la récusation), or stepping down (le déport), or refusing the mission, or the impossibility of notifying it to him, or the existence of any legal impediment. The court can also, on its own motion or upon the request of the litigants, replace the expert who fails to perform his duties, after hearing his statements, unless the court decides to disregard hearing him due to futility.
The course of the expertise ends after the completion of the required works, where the court has the jurisdiction to assess the effort exerted and issue its decision determining the expert's fees (les honoraires de l'expert) immediately upon the execution of the mission entrusted to him.
Official legal articles
Think deeper
How does the expert's obligation to comply with the deadlines set for him integrate with the court's authority to replace him upon failure, and why did the legislator allow the court to disregard hearing his statements due to futility?
Flashcards
What are the cases in which the court mandatorily resorts to replacing the expert according to the law?
The court resorts to replacing the expert in the event of the acceptance of the recusal, stepping down, refusal of the mission, impossibility of notifying it to him, or the existence of any legal impediment (Article 318).
How and upon whose request does the court decide to replace the expert who fails to perform his duties?
The court decides to replace him on its own motion or upon the request of the litigants, and after hearing his statements unless it decides to disregard doing so due to futility.
What is the court's authority in modifying the mission entrusted to the expert?
The court that appointed the expert may decide to expand or restrict the mission it entrusted him to perform.
Does the expert have the right to use documents held by third parties, and what is the court's role in this?
Yes, the expert may request the litigants or third parties to hand over to him any document that helps in executing the mission, and the court may order this when necessary.
How does the expert present the results of his observation of the facts to the court?
He establishes what he observes in a report he submits to the court, unless the court decides that the information be presented to it orally.
What are the procedures for completing or clarifying a report marred by deficiency or ambiguity, and what is the expert's right in this regard?
The court may at any time summon him to complete or clarify his report in writing or orally in the hearing, and the expert may request the court to hear him at any time.
When are the expert's fees determined?
The court determines the expert's fees immediately upon the execution of the mission.
Practice questions
The court may replace the expert who fails to perform his duties:
The court may on its own motion or upon the request of the litigants decide to replace the failing expert after hearing his statements, unless it decides to disregard hearing him due to futility (Article 318).
The court that appointed the expert possesses the authority to:
The court that appointed the expert may decide to expand or restrict the mission it entrusted him to perform (Article 319).
If the expert needs a specific document to execute his mission and this document is in the possession of a third party:
The expert may request the litigants or third parties to hand over to him any document that helps in executing the mission, and the court may order this when necessary (Article 324).
If the expert's report submitted to the court contains missing or ambiguous points, the court may:
The court may at any time summon the expert to complete or clarify the missing or ambiguous information in his report either in writing or orally in the hearing (Article 326).
What is the rule and the exception in the method of the expert presenting his observation according to the law?
The expert establishes the facts he observes in a report he submits to the court, unless the latter decides that the information be presented to it orally (Article 332).
When does the court determine the fees of the expert entrusted with a mission?
The court determines the expert's fees immediately upon the execution of the mission (Article 335).
Case problems
The court appointed an expert to inspect a building threatened with collapse and set a one-month deadline for him to submit his report. A two-month period elapsed without the expert initiating the inspection or complying with the deadline, and he ignored the court registry's follow-ups. The plaintiff submitted a request to the court to replace the expert due to his failure to perform his duties, and requested to disregard hearing his statements, justifying this by the fact that the expert had left the country permanently and there was no benefit expected from summoning him. The defendant objected, arguing that the law always requires hearing the expert's statements before replacing him.
Model answer
The expert must comply with the deadlines set for him, and therefore his failure to initiate the inspection and exceeding the deadlines constitutes a breach of his duties (Article 321).
The court may on its own motion or upon the request of the litigants decide to replace the expert who fails to perform his duties (Article 318).
The general rule requires hearing the expert's statements before replacing him, but there is an explicit exception allowing the court to disregard hearing his statements due to futility (Article 318).
Accordingly, the court has the right to grant the plaintiff's request and decide to replace the failing expert while disregarding hearing his statements once it verifies the futility, and to appoint another expert to pursue the mission.
Self-grading rubric
The court entrusted an expert with determining the causes of water leakage in the plaintiff's apartment. During the inspection, it became apparent to the expert that uncovering the source of the leakage requires reviewing the insulation blueprints kept by the building contractor, who is a third party outside the litigation, and the contractor refused to hand them over to him. The expert also noticed that the leakage had extended to the building's common foundations, a matter not covered by the initial commissioning decision. The expert submitted his report with what he observed, and it became apparent to the court that there was ambiguity in a fundamental point, so the expert requested the determination of his fees immediately before any other procedure.
Model answer
Regarding the documents withheld from being handed over: The expert may request the litigants or third parties to hand over to him any document that helps in executing the mission, and the court possesses the authority to order the contractor to hand over the blueprints when necessary (Article 324).
Regarding the additional facts: The court that appointed the expert possesses the authority to decide to expand the mission it entrusted him to perform to include the building's foundations (Article 319).
Regarding the ambiguity in the report: The court may at any time summon the expert to complete or clarify the ambiguous information in his report in writing or orally in the hearing, and the expert himself has the right to request to be heard at any time (Article 326).
Regarding the fees: The court determines the expert's fees immediately upon the execution of the mission, and therefore the fees are not determined until after the complete conclusion of the execution of the mission with all its elements and required clarifications (Article 335).