– What is the effect of private expert opinions in criminal defence and civil lawsuits? –
The Chemnitz Regional Court (decision of 3 July 2018, file no. 2 Qs 241/18) decided – after an acquittal – that the costs of an anthropological expert opinion must also be reimbursed by the state treasury at the usual market rates. The private expert had proved that according to the photo in the criminal files, the car owner did not have to be the same driver who had been flashed at 64 km/h excessive speed. The criminal proceedings were therefore discontinued.
Findings of court experts are to be used in the grounds of the judgement
In the event of a conviction, the judge of guilt must explain in the grounds of the judgement “on which matching metric body characteristics the expert relied in his evaluation and in what way he determined these matches” (OLG Hamm, decision of 20.06.2008, Az. 3 Ss OWi 434/08). Also in this case, a human-biological expert opinion had the result that it was probably uncertain that the person on the radar measurement photo agrees with the defendant. The criminal judgment of the lower court was overturned because the reasons for the judgment did not reflect the “underlying connecting fact and the conclusions drawn from it” – from the opinion of a court-appointed expert – in the judgment. However, the defendant who does not submit a private expert opinion cannot demand this if the judge himself thinks he can be identified from the photo in the courtroom.
Different purposes of private expertises in the process
First of all, private expert opinions are not evidence. However, it can be used, for example, to fulfil the primary burden of presentation, and only then to achieve a secondary burden of presentation for the other side. Or even before that: it is only possible to present a conclusive case.
Experts can enable a party for the first time to respond to a primary or secondary statement in such a way that evidence can be gathered in the first place, possibly by means of a court expert opinion.
They are also used to attack evidence such as expert opinions obtained by the court, so that they have to be supplemented, another expert is appointed, or the court simply does not consider them to have been produced because the expert opinion obtained is no longer convincing.
A private expert opinion that is correct in content can be based on the wrong question
It seems to be a questionable idea if specialist lawyers working for liability insurers think that the lawyer commissioned in each case should formulate the questions of evidence for the private expert after all. An expert could possibly – although he knows better – then simply carry out a task that is not target-oriented in the same way. It happens again and again that a private expert had answered the lawyer’s question correctly, but this question was not at all purposeful, but another one. To formulate the terms of reference for expert opinions is at best to be understood as teamwork for experts and lawyer. Finding the right private appraiser may be a challenging task.
A private expert or appraiser can also assist his litigant in informing a court of any doubts about the usefulness of an unambiguous question in the order of evidence. Finally, the court expert will not comment on the matter in order to avoid a conceivable bias claim. It can also be problematic that a judge is not prevented from commissioning an overburdened expert. In some areas, researchers found that up to 50% of the expert opinions were incorrect.
When lawyers want to commission a damage assessment
Some lawyers commission a damage investigation because of wrong advice – but they have not yet answered the first question, what the client would have done differently if he had been advised correctly. Someone auctioned a house for 90,000 EUR, which, according to a faulty appraisal, should have been worth 140,000, but was only worth 110,000. He wanted to have the difference of 30,000 Euros as compensation for damages, and said that if the expert opinion had been correct at 110,000 Euros with mention of the construction defects, he would never have bought the house at auction. Damage is zero, however: Because then he would only have his 90 TEUR, and so a property worth 110 TEUR.
Legal expenses insurance does not provide all-risk cover
With the exception of special cover for managers or, in criminal law, for self-employed persons, the General Legal Expenses Insurance Conditions (ARB) do not provide for the reimbursement of costs for legal assistance by private experts or privately commissioned experts. However, in case of doubt, only a non-legal expert will be able to recognize possible methodical “deadly sins of the expert”. The court may not simply ignore the findings of the private expert as a so-called qualified party presentation – the opposing party and, if necessary, the court expert must therefore be required to respond in an appropriately qualified manner.
Court opinion or statement of the private expert as evidence
In the field of insurance claims, many affected persons are not aware that the state of the damage can change or will certainly not be detectable in the future. This starts with damage caused by fire and (fire-fighting) water, but also affects personal insurance policies such as daily (home) health benefits, private health insurance benefits, occupational disability and reduced earning capacity. In such cases, as well as when purchasing defective materials, it may be obvious or mandatory to initiate an independent judicial procedure of taking evidence (formerly: procedure for the preservation of evidence) in accordance with Section 4.2.1. §§ Sections 485 et seq. of the Code of Civil Procedure (ZPO) – at best accompanied by a private expert.
While an expert opinion from a private expert is not evidence, but at least a qualified party presentation that the judge cannot simply leave aside, it is full evidence. Evidence, however, would also be the testimony of the private expert as an expert witness on what he has factually established during the appraisal.
The assessment can also be accelerated later on in the filing of an action by applying for an order to take evidence and taking evidence before oral proceedings pursuant to Sec. § 358a ZPO, by means of a court expert opinion or a written witness hearing, in some cases also of the private expert on matters which he has taken note of.
Instead of remaining silent when nothing can (yet) be proven, a pre-litigation assessment is recommended. This may already be the case, for example, in the event of defective deliveries, for example if building materials do not hold or if a computer system produces incorrect results. Perhaps the future plaintiff declares that he suffers from “post-traumatic stress disorder” – but the proof of causal cause by a serious accident, or perhaps a violation of occupational health and safety laws, has so far only existed in the mind of the person concerned as an inner conviction.
What is decisive is which judicial evidence the court considers necessary to clarify the facts of the case – for this, however, a professionally well-founded presentation in the written pleading is required; in fact, private experts are often called in, even if the person concerned thinks he is an expert himself.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.komet-pirmasens.de (published in issue 5619, pages 38-39)
www.versicherungsmagazin.de (published on 04.09.2018 under the heading: How private expertises work in criminal defence)
www.experten.de (published on 14.05.2019 under the heading What effect do private expert opinions have in criminal defence and civil lawsuits?)
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About the author
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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