EXPERT EVIDENCE IN THE CIVIL PROCEDURE LAW.

Abstract

After a decade of practical application and several changes to the rules governing this type of evidence, particularly Law 13/2009, of November 3, reforming procedural legislation for the establishment of the new judicial office, due regard must be paid to the present situation of  expert witness evidence. The expert evidence is governed by a somehow confusing number of rules that this paper attempts to clarify through a complete analyses thereof, taking as the starting point the general aspects concerning its concept, as well as its legal nature. It shall be considered as an actual type of evidence, with its own essence, different from that of the documentary evidence, excluding the idea of the expert as an assistant of the Judge. The paper exhaustively analyses one of the most meaningful issues from a practical point view, examination of expert evidence in the proceedings. This analyses starts with a classification that allows to provide a more didactic and simple exposition, drawing the difference between expert reports called by the parties to the proceeding and those requested by the Court. This classification shall allow to approach the ordinary cases in which an expert report is submitted, i.e. together with the claim and the defence forms, as well as the possibility of stating in the mentioned documents the intention of the parties to provide an expert report within the period of 5 days set out in Section 337 LEC after modification of Law 13/2009. Further, the paper outlines the particularities of the submission of expert reports as a consequence of the statements included in the defence by the defendant or the amendments to the statements of case by the plaintiff made in the preliminary hearing phase.  The paper also deals with how this type of evidence shall be construed and submitted, especially regarding oral hearings. Finally, the paper examines those cases where the expert has to ratify the report in the hearing, and the possible causes of report dismissal or expert removal, depending on whether the report is called by the parties or requested by the Court. Also it contains some reflections about the value given by the Court to this kind of evidence. Some significant court rulings with regard to this issue are provided in order to facilitate a better understanding of the practical application of expert witness testimony.

Keywords: Evidence. Expert report called by the party. Expert report called by the Court. Submission. Ratification. Dismissal. Removal. Free valuation.