The Technical Consultant, generally referred to as Court Appointed Expert Witness (CTU in Italy), is a professional with specific technical expertise that acts as the assistant to the judge during the civil trial. Instead (referring only to Italy) if he acts in a criminal trial he is referred as Perito tecnico d’ufficio (PTU).
The activities of the Expert Witness are governed by art. 61 of the Code of Civil Procedure:
“When it is necessary, the court may be assisted, for the accomplishment of specific tasks or for the entire process, from one or more advisers in particular technical expertise“.
Competency of the Expert Witness
The industrial expert is a professional who, thanks to his specialist technical skills, has always contributed significantly to fulfill the role of CTU. In fact, a CTU can be defined as a professional with specific technical knowledge, instructed by the judge to assist him to carry out all activities appropriate to verify, detect and analyze facts relating to the emerging controversy.
In this area, the specialized knowledge plays a fundamental role and obviously, we are talking about a competence which should be documented and certified, and this is the reason why the CTU must be enrolled in special registers of the court (register civil and/or criminal register) divided by categories of specialization by rules that vary on the disposal of the president of the court.
The professional register is held by the president of the court and is made by a committee chaired by himself. This committee is also composed by the prosecutor’s office and a professional designated by the Board of of the category to which the applicant belongs. The committee of the court carries out only administrative functions. In fact, it is possible to obtain the registration for technical consultants to all those who request them via the enclosed application and who meet the following requirements:
- specific expertise in particular subjects documented by certificates and/or curriculum vitae;
- proper moral conduct attested by a special certificate;
- enrollment in their respective professional orders attested by the certificate of registration.
Unfortunately, whenever a professional technician walks through the door of a courthouse, he comes into contact with a reality where rules and behaviors are often unknown. In fact, a specific training in the judicial sector is not required to a CTU and this is a serious lack in the current system, since a good technician may not necessarily be a good CTU.
The Technical Consultant, in fact, must also have knowledge of the rules of civil procedure that affect in an essential way the quality and especially the legality of the expert’s work. It follows that the technical expert, often through no fault of his own, is not adequately trained in the procedures involving him in the course of the assignment. Actually, no legislator ever bothered to prescribe a specific training for all technicians which are called to play the role of espert witness (CTU) to the judge. In fact, if on the one hand it is required a particular expertise in the subject matter of the case, on the other hand, it is not required any knowledge about how to perform its mandate as expert witness. This is the main reason why the judges generally refer to a small group of technical experts. This is sometimes interpreted as a behavior not exactly transparent but that actually is just based on the fact that, unfortunately, not all technicians enrolled in the court also ensure the necessary legal requirements.
The provisions of the new reform of the civil trial with the law n°69 of 18 June 2009, plans to equitably distribute the tasks among the registered consultants so that none of them may receive more than 10% of those assigned to the office. Unfortunately, it follows that, contrary to the provisions the judges almost always call the same technicians and in many, too many cases, the preference is given to the representatives of various institutions, including colleges and orders.
For example, in about 35 years of membership in the college of industrial experts (25 of which registered in two different courts) as well as numerous attendances as a technical consultant to civil lawsuits, and with several refresher courses for expert witness recognized by the college, I was called only a dozen times. Furthermore I got to know about many colleagues registered to the court from more years than me, were never called.
The court may entrust the technical consultant also the task of carrying out an attempt at conciliation of the dispute. This leads to another new responsibility on the part of CTU: to provide the parties with an attempt at conciliation concrete and professional.
The jurisdiction of the Expert Witness
The Technical Consultant intervenes in the following areas:
– PRECAUTIONARY PROCESS is a particular form of the process that allows to the parties be able to collect evidence in all those cases in which it will be difficult if not impossible to collect them in the course of the future process. In this case, the expert witness activity is expressed in the precautionary technical assessment. Such counseling is requested by the applicant and ordered by the court, when there is a urgent need to check, before judgment, the state of the places or the quality or state of the things. This happens when it is a matter of urgency;
– COGNITIVE PROCESS is a process through which the court establishes a legal situation based on the facts presented by the parties, resolving the dispute by means of a judgment. In this case, the task that is assigned to a CTU. It has an integrative purpose, that is, the survey is intended to supplement the knowledge of the judge with specialist, technical and scientific knowledges. The other purpose is investigation, that is, when the CTU is assigned the task of acquiring facts relevant to the decision of the case. In this case the use of the CTU is not left to the discretion of the parties but at the discretion of the judge, for which technical consultancy is considered a measure of inquiry and not an actual test;
– EXECUTIVE PROCESS is represented by what the creditor undertakes against the debitor,by virtue of a writ of execution. In this case, the CTU is defined as “assistant to the judge” which is commissioned to undertake an evaluation of the debtor’s assets as an indication of transcripts, any real property, compliance with building standards and urban planning.
Responsibilities of the CTU
The Technical Consultant, during the course of their duties, assume the following responsibilities:
– CIVIL: It is the responsibility that obliges the technical consultant to pay compensation for any damage caused to the parties as a result of its conduct, established by Article 64 of the Code of Civil Procedure, “He is also obliged to pay compensation for damage caused to the parties”. The delay in the submission of its report without justification, the excessive cost of technical consultancies to demonstrate the inaccuracy of the findings of the expert’s report, omission of unique investigations are examples of this kind.
– PENAL: The Technical Consultant, as assistant to the judge, holds the position as a public official, consistent with the definition given by Art.357 of the Penal Code. “For the purposes of criminal law, we refer as public officials: employees of the state or another public body, exercising permanently or temporarily, a public legislative, administrative or judicial role; any other person who exercises permanently or temporarily, for free or for pay,whether voluntarily or compulsorily, a public legislative, administrative or judicial role.”. Thus, they are applied to the types of offenses connected to this qualification as embezzlement, extortion, bribery, abuse of office. For example, the CTU, providing false justifications to be replaced, is punishable under Art.366 of the Criminal Code (Refusal of office legally due) with imprisonment up to six months or with a fine ranging from € 30 to € 516. In addition, the CTU, providing an opinion untrue or affirming the existence of facts not true, is punishable under Art.373 of the Criminal Code (False expertise or interpretation) with imprisonment from six months to three years; moreover the gross negligence involves, as a corollary, the suspension of the exercise of the profession;
– DISCIPLINARY: the activities of technical consultants are subject to the supervision of the presiding judge, who ex officio or at the request of the public prosecutor or the president of the order or college can promote professional disciplinary proceedings (warning, suspension from the register for a period not more than one year, removal from the register). This occurs whenever the activities of a technical consultant are not handled according to strict rules, or failing to take a proper moral conduct. Before the president of the court promotes the disciplinary proceedings, he must notify the technical consultant to the subject of the dispute in order to receive a written report with the justifications. In case this is not deemed sufficiently comprehensive, the consultant shall be convened before the disciplinary committee.Against the disciplinary action, the action may be brought within 15 days of the notification. It must be filed before a committee of the Court of Appeal consists of the Public Prosecutor at the Court of Appeal, the President of the Bar Association and the president of the college to which the person belongs.
The key role of the CTU
Often when the dispute is limited solely to technical aspects, the expert report of the Technical Consultant becomes virtually the judge’s decision; Therefore, the statements of the technical consultant end up being decisive for the outcome of the dispute. It is also for this reason that the primary task of a good expert witness is to answer the questions asked by the judge in a clear and simple as possible; using only the documents filed, differentiating between facts and opinions, avoiding to express subjective opinions.
Based on the above description, it is clear that to carry out the activities of the court counselor, a technician must possess special knowledge and quality in addition to the scientific and professional skills. In fact, the Technical Consultant must ensure knowledge and qualities that are defined generically to “know” but in reality become legal “knowledge, know how, know how to be,” ie, he must have both a technical and legal competence.
In a few words, if on the one hand it can be said that technical competency is an obvious component to the figure of the CTU, the same can not be said for the legal competence. In fact the preparation of most of the technical professionals
in the matter of court procedures is absolutely inadequate and in many cases totally absent. As a designer of electrical equipment or a building designer should define and present a project knowing full well the relevant technical standards and in particular the zoning regulations for the area, in the same way, a professional technician should not undertake the CTU activity without knowing in depth and in detail the rules of civil procedure governing such activities.
OFTEN YOU DECIDE TO REGISTER AS A TECHNICAL CONSULTANT OFFICE OF THE COURT INSPIRED BY THE MERE FACT THAT IS ALWAYS A GOOD JOB OPPORTUNITY. AN OPPORTUNITY TO TAKE IMMEDIATELY WITHOUT THINKING TWICE.
SIMPLY BECAUSE YOU HAVE PASSED AN EXAMINATION OF PROFESSIONAL QUALIFICATION, YOU (WRONGLY) BELIEVE YOU HAVE FINALLY REACHED A “STATUS”, THANKS TO WHICH EVERYTHING IS DUE AND ESPECIALLY YOU FEEL ENTITLED TO BE ABLE TO DO ANYTHING..
Appointment of a CTU
The expert is appointed by the court, so even when the nomination is proposed by the parties, as almost always happens as each party tries to bring grist to their mill, this appointment is still subject to the exclusive and discretionary assessment of the judge. During the order of appointment, the court shall report the reasons that have inspired the use of this means of examination and the reason for the choice of that particular technical consultant.
The judge, in the absence of skilled technicians among those enrolled in the court regarding the matter of the cause entrusted to him, he may appeal to the identification of a consultant even among those not enrolled in the proper court or even in any register, of course, that choice must necessarily be accompanied by a prior authorization of the president of the court. The Technical Consultant is chosen according to a particular and specific competence, so that the prevalence is not given to the simple recognition of educational qualifications or registration on professional colleges, but rather the proven training and experience and the particular specialization in the specific field of the dispute.
It follows that in the event of a lawsuit relating to a high voltage processing plant, the choice is not simply a electrician consultant registered to the professional college, but it will be a technician who, though not registered to the relative order or college, possesses a specific and documented competence in high voltage processing plants.
That’s why at the time of enrollment of Technical Consultants, it is a good practice to attach a detailed list of its specific expertise in the documentation pertain to their technical competence (certificates and curriculum vitae). For example, if you are a graduate engineer in electrical engineering, it is not enough that you claim to have expertise in electrical and electronic systems, but it is preferable to document and list much more in detail the various sectors of the real and actual competence as:
- electrical systems for single and multi-family residential units,
- industrial electrical systems,
- electrical systems in hospitals and/or places of public entertainment,
- video intercom systems,
- alarm systems and video surveillance systems,
- lightning protection systems,
- home and building automation systems specifying photovoltaic power systems,
- digital TV
- engines gates, doors and barriers,
- etc..
The more skills are documented and detailed, the better the chance is to receive any assignments. Obviously, you have to keep in mind that declaring competences for which you do not have an effective preparation and enough experience may result in the assignment of positions to which then you may not be able to comply (especially then you can not refuse them), incurring heavy disciplinary action, including criminal penalties, both by the court and by the parties to the dispute. The Technical Consultant, in fact, once appointed, can not refuse the appointment except in cases where the grounds for abstention are covered by Art.51 of the Code of Civil Procedure (eg relationship with one of the parties involved, function of CTU already carried out in a lower court in the same case, etc.). Pursuant to Article 192 of the Code of Civil Procedure, the Technical Consultant who falls where can refuse the assignment, shall submit an application to the court at least three days before the hearing, in the same period, the parties must propose their possible instances of disqualification of the technical consultant appointed by the court. In the hearing of the appointment of the Technical Consultant on the basis of Article 193 of the Code of Civil Procedure, he shall take an oath before the judge pronouncing the ritual phrase “I swear to well and faithfully fulfill the duties assigned to me for the sole purpose to make known to the court the truth”
By Act No. 69 of 18 June 2009 ‘Provisions for economic development, simplification, competitiveness as well as in civil proceedings” with paragraph 4 of Art.46, it was amended the first paragraph of Art.191 of the Code of civil Procedure. This introduces the obligation of the communication of the questions put by the magistrate to the consultant at the time of appointment of the expert. Therefore, upon oath, the CTU is already aware of the assignment, bur remaining, however, the possibility both for parties and for the consultant to formulate alternatives to the court if the questions asked are not sufficiently concrete to produce a result exhaustive.
This provision is intended to encourage a more rapid course of the dispute, avoiding the frequent conflicts among the defenders when the questions are assigned to the Technical Consultant. The bailiff shall notify the order of appointment along with the questions to the technical consultant chosen and to the defenders of the parties.
In the hearing of the oath and appointment of the consultant, in addition to the oath, must comply with the following duties and requests a formal approval to the judge:
- communication of the beginning of the expert consulting operations;
- any authorization for access to public offices and/or places;
- consent to the withdrawal of the files of the parties;
- authorization to use expert auxiliaries;
- authorization for use of own vehicle and/or other types of media;
- eventual appointment of expert witnesses from the parties;
- the term for submission of the report to the parties;
- the term for parties to submit their comments to the report of the expert witness;
- the end of the filing of the report of the expert witness;
- provision of a fund expenses on account of their entitlements;
- signing of the minutes of the hearing by the CTU and the present persons.
The activities of the CTU
Another important change introduced by Article 46 paragraph 5 of Law 69/2009 amending the third paragraph of Article 195 of the Code of Civil Procedure, is the cross-examination to the report of the Technical Consultant, that the parties have the power to produce observations to the expert’s report before it is filed at the Court by the Technical Consultant.
Therefore, the performance of the expert is divided into the following phases:
- the CTU sends to the parties the full report in all its parts, as a result of surveying operations and within the period fixed by the court.
- the parties shall consider the report of the expert witness and then pass their observations on this report to the consultant within the deadline. Remember that according to the principle of the cross-examination, comments should be exchanged among the defenders of the parties;
- the further period for the filing of the final report, the expert completes its report, taking into account the comments submitted by the parties, accepting them or reject them with motivation or with answers and/or explanations. At the end, he shall deposit the report in the Registry with attached comments received by the parties.
The form of the report is written and must be laid on stamped paper for legal documents, must not contain erasures and abrasions; Any deletions and/or additions may be added with footnotes that are an integral part of the text. Attachments (photos, drawings, documents) can be presented together with the report to make it more easily understandable. Attachments are not subject to stamp duty for judicial acts unless any special requests of the various registries.
Together with the technical report, the Technical Consultant must also deliver your parcel stating clearly and in detail the skills and related expenses, asking the court settlement by “decree of liquidation”.
With the filing of the technical report with the clerk of the court within the time fixed by the court, the status of a public official CTU ceases. However, this does not subtract him from the obligation of confidentiality of investigations and he must remain available to the judge for any clarifications that may be necessary in relation to their own work.
During the performance of his duties, the Technical Consultant is also aware of the personal data of individuals involved in various capacities in the legal case relating to his appointment, for this purpose, with Resolution 46 of June 26, 2008, the Guarantor for the protection of personal data issued the ‘Guidelines regarding the processing of personal data by the technical consultant and experts auxiliaries of the judge and the public prosecutor‘ particularly aimed at technical consultants, experts for judges and prosecutors in criminal law.
A situation that often occurs during the engagement of the Technical Consultant, caused mainly by an exaggerated conflict between the parties, is preventing access to the CTU or one of the parties to the places subject to audit and inspection. In this case it is necessary to keep in mind that even at this stage it is necessary to give effect to the institution of adversarial. In fact, the opportunity to attend the various activities must be guaranteed to the parties, in order they can learn useful information, exercise the functions of control and if appropriate, make requests and comments.
It should also be noted that the Technical Consultant has no power of forced entry in the absence of consent of the owners of the property subject to verification, especially since Article 14 of the Constitution of the Republic establishes the inviolability of the home “The home is inviolable. He can not perform inspections, searches or seizures, except in the cases and manner prescribed by law in accordance with the guarantees prescribed for safeguarding personal freedom. The investigations and inspections for reasons of public health and safety or for economic and taxation are governed by special laws. “In this case it is good that the CTU suspend the activities verbalizing the reasons and submitting the enclosed application to the court by which to explain what happened, then asking that the appropriate decisions are taken.
Another situation that occurs frequently is the participation during his investigation of unauthorized persons, especially as expert witnesses.
In this regard it should be noted that participation in surveying operations is permitted only to the lawyers and expert witnesses who have been appointed in the manner laid down in Article 201 of the Code of Civil Procedure, for which the Technical Consultant is required to verify to means of control document, the identities of the persons present, in order to avoid irregularities. In this case, problems could arise regarding the validity of the advice.
The expert operations must be carried out exclusively by evaluating documents filed at the Court, but the parties are given the opportunity to propose:
– ISTANCES are requests made at CTU so that he takes into account the particular investigation or specific surveys. For example, to not take into account the demands of the other party because they are not pertinent with the questions submitted by the court. Another request could be for further checks regarding the building rights in a specific area.
– OBSERVATIONS are technical scientific assessments such as memories and/or reports which, in most cases, are generally prepared by other expert witnesses.
At this stage, the Technical Consultant must pay close attention to the documentation that is delivered on the occasion of the necessary surveying operations. For example, he can accept a color photo to replace the one filed in black and white or copies of plans can also be consulted at the Land Agency office that may be acquired by the same technical advisor.
The CTU must surely reject all those documents whose innovative nature and/or non-exclusive deposited to acts that may significantly affect the outcome of the consultation. For example, new photographic evidence showing the condition of the premises of the subject of the expert, questions of application of electrical supplies or payment of bills and invoices for miscellaneous supplies and, in general, all those documents which are not available through official channels and the technical consultant will have to acquire along with the observation of the parties.
According to Article 194 of the Code of Civil Procedure, the CTU can get news undetectable by official acts through the intake of information by third parties or by the parties, only if authorized by the court.
It’s important to remember that the technical consultant responds with its own responsibility (civil, criminal, disciplinary) of accepting any irrituale documentation. Although the procedure does not require the mandatory it is advisable that the Technical Consultant shall always conduct the minutes of all surveying operations, attaching it to its final report. He must also make sure that all the presents sign the document, indicating in a specific note any refusal to sign.
The Minutes of operations turns out to be a public document drawn up by a public official and therefore subject to possible lawsuit for false statements. It should be noted that the error of many Technical Consultants, mainly due to inexperience and / or as a result of constant pressure from the expert witnessesof the parties, is to exchange the minutes of the appraisals with the conclusions of the final report, anticipating already here the technical conclusions with regard to the questions posed by the judge.
A good technical expert’s report must keep strictly separate the minutes (description of all the operations carried out) from the following conclusions aimed at responding to the questions posed by the judge. As a result of the foregoing, the record must contain only the following:
- time, date and place of the conduct of operations;
- persons present;
- any judicial authorization for access to the sites;
- all activities carried out and the results obtained;
- scanned documents and/or delivered by the parties;
- requests and/or comments of the parties;
- any determination of the date of the continuation of surveying operations.
Conclusions
In conclusion, remember that with the new reform of the civil process essentially aimed at reducing the time of the case, the question, and therefore, the adversarial on the report of Technical Consultantof the parties, is the fundamental element that determines the purposes and limits of the expert himself.
More generic the question is the higher the possibility that disputes may arise in the course of counseling of the parties, conflict of the parties, and unnecessary disputes by their consultants. For this reason it is essential that the Technical Consultant, upon oath, should highlight any deficiencies and/or discrepancies in the questions to the judge. These discrepancies do not allow a clear and objective answer, and especially do not allow the CTU to carry out of any conciliation between the parties.
As regards the attempt at conciliation between the parties should be noted that the Technical Consultant shall have no obligation to implement it, only the court has the power to authorize the CTU in such an attempt, in this case the consultant in his expert report will describe all those points of agreement and disagreement.If as a result of surveying operations, even if the court has not expressly authorized, the parties based on the results of surveys and activities carried out by the CTU for the fulfillment of its mandate, reach a position of conciliation, the expert witness must prepare the minutes of reconciliation which must be signed by the expert and the parties and attached to the expert’s report. It should be noted that the minutes of the conciliation is enforceable so it must contain:
- an indication of the persons present;
- an indication of the circumstances of place and time in which the documented acts are made;
- the description of the activities and surveys carried out;
- the description of all declarations received and the agreements reached by the parties.