Differences between evidence systems and their impact on litigation strategy

Any experienced lawyer or solicitor knows and understands the importance of evidence to succeed in a court case. However, the approach to evidence and its fundamental requirements in order to be valid and credible fundamentally differs from the Anglo-Saxon system in many jurisdictions in continental Europe. Experience teaches us that these differences are not often well-known and understood and, therefore, may lead to mistakes in strategy at the very start of a case, which cannot be corrected or remedied afterwards during the court proceedings.

Contradictory experts

A typical example of this is so-called contradictory expert proceedings that are used in France, Belgium and Italy, among others. The idea behind such proceedings is that only so-called neutral, independent and impartial experts may, after an important loss (product liability and product recall, a fire or explosion, etc), deliver to the court a report that will have evidential value. These contradictory experts are usually appointed by courts or arbitration panels and sometimes by the parties themselves by way of mutual agreement. The work of so-called unilateral experts, appointed and paid by only one of the parties, will in practice often be ignored by the courts. Usually, contradictory experts are appointed by the courts, often in summary proceedings or even ex parte proceedings, in the days immediately after the occurrence or the discovery of a loss or the filing of a financial claim.

Although unilateral experts at that moment will probably also have been appointed by the parties (especially when insurers are involved), their reports and findings will only be relevant to convince the court of the necessity to appoint a court expert with a particular mission to fulfil. Hence, in systems like the Belgian, French or Italian system, the parties should not view those unilateral expert reports as credible and reliable evidence to prove effective liability and quantum, but rather as a starting point to obtain the appointment of a court expert with a well-defined mission to accomplish. This means that the repair or reconstruction works after a loss will not be able to be started until the court-appointed expert has formally ‘released’ the loss site after their further analysis and findings process is complete. Often one will see, because the system is not well-understood, that important modifications to the loss site are made by one or more parties, rendering further contradictory findings by a court expert technically impossible and depriving that party of the ability to fulfil its burden of proof.

The word ‘contradictory’ in all this is crucial. It means that the court-appointed expert basically cannot do anything without all of the parties being informed, advised, aware of, and participating at the same moment and in the same manner in the process. This ensures not only respect for the rights of defence, but also contributes significantly to the evidence value and credibility of the expert’s report. Respect for the contradictory debate is, for the court, necessary to guarantee that the conclusions reached by the court-appointed expert are credible. This does not prevent that confidential information disclosed in contradictory expert proceedings from being legally protected, either through the signing of an NDA or through a court decision.