Expert Legal Opinions on French law

Judicial expertise, rather than amicable expertise, is a procedural measure commonly used in France before legal proceedings for technical aspects (investigation of the causes and extent of a claim) and financial aspects (drawing up accounts between the parties).

When a dispute raises technical issues that require in-depth examination, the judge can appoint a person of his choice to provide him with conclusions, consultation, or an expert report. The judge can order judicial expertise if findings or consultation are insufficient to assist him or her (article 263 of the CPC).

Judicial expertise is an investigative measure delegated by a judge to a judicial specialist before the Courts of Appeal or the High Court (Cour de Cassation) to conduct complicated inquiries and provide the judge with technical explanations on the matter, allowing him or her to resolve the dispute.

Legal specialists are available in a wide range of fields (medicine, accidentology, chemistry, mechanics, and so on.)

The French legal system is similar to that of Belgium. It is, however, somewhat different from the Dutch scheme, which favours the parties' personal presence before the judge, who will then challenge them.

Even if the judge with jurisdiction on the merits is not a French judge, the latter would retain jurisdiction in summary proceedings for judicial competence. The European Union has acknowledged that the French judge has the authority to order interim steps, regardless of whether the judge has jurisdiction on the merits (Article 35 of Regulation n° 1215/2012 of December 12, 2012).

1. The court decision ordering the experts

Expertise proceedings may be ordered either before or during a trial. In most cases, summary hearings are required and ordered prior to the trial to retain proof of facts that the defendant wishes to create.

The judge determines the circumstances that require the expert, appoints the expert, states his or her mandate, and specifies the time frame during which the expert must provide his or her opinion in his or her decision ordering the expert (Article 265 of the CPC).

The summons for summary proceedings suspends the claimant's action's limitation time until the expert's final report is filed (Article 2241 CC). The other parties should also take the requisite precautions to avoid any ongoing limitation period.

When ordering the expert, the court must determine the value of the expert's fees (Article 269 CPC), which must be paid by the Claimant in principle.

Active involvement in the summary proceedings, especially during the hearing, is critical in ensuring the expert's mandate and, if possible, the expert's competence.

2. Parties participating in the expertise

Expertise, despite its technical existence, is a judicial act subject to civil procedure law. It must, in particular, adhere to the concept of adversarial proceedings (Article 16 CPC). In fact, this means that all competence operations and exchanges with the judicial specialist must be performed in the presence of all disputants.

The complainant may include all parties whose involvement he believes is required for the case (e.g., all parties in a contractual chain) so that the expert report can be challenged by them as well.

The defendant, for his part, must ensure that all parties against which he might have a claim are included. If he doesn't, he won't be able to use the expert's technical findings against the parties that weren't involved in the expertise. This may be very troublesome for the legal debate that follows the report's submission.

Parties also request to participate freely in the expertise so that they can submit requests for technical and/or financial verifications and/or defend their position.

3. Expertise operations

The court specialist usually starts his mission by calling all of the parties and their attorneys to the claim site.

The specialist would determine the magnitude of the harm claimed by the complainant at the first meeting. They will then be able to form tentative theories about the damage's potential causes. The parties present may also use their voices to attract the expert's attention to specific points or to make preliminary suggestions or reservations.

Our french expert lawyers can convene as many expert meetings as he considers appropriate in order to obtain additional information, to enlist the help of a sapiteur (an expert in a different field), and to conduct technical tests on the premises. All parties, as well as their lawyers, will be summoned systematically.

The court expert interacts with the lawyers of the parties through "Notes," which outline all of the issues posed and addressed. He also transcribes the opinions and submissions of the parties.

The attorneys for the parties interact with the court expert via "Dires," in which they state their client's position, request a clarification from the court-appointed expert, request further inquiries, and request that a party provide information. The Dires can be accompanied by documentation or technical notes, which are typically prepared by independent technical experts who help each party.

4. The opinion of the court appointed expert

Before sending their final report to the court, the court-appointed expert usually shares a pre-report in which he provides his opinion on the different points of his mandate and seeks the parties' final observations (Article 282 CPC).

It is worth noting that if the mandate does not specify one, a pre-report isn't required, which may contribute to the (unwelcome) disappointment of getting a final report after the parties believe they haven't covered all. It will be too late by then, because the judicial specialist is excluded from the case as soon as he submits his analysis.

The parties will no longer be able to make observations or raise any objections to the expert's opinion. They will be able to raise objections to the expert's findings in court, but they will no longer be able to seek further inquiries.

While the expert's findings are not binding on judges, they would always value the expert's opinion in practise. As a result, having a lawyer represent you during the competence procedure is important.

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