Provisions concerning the presentation of evidence in Finland were reformed, effective 1 January 2016, by an amendment to the Code of Judicial Procedure. One of the most significant changes was to the regulation related to expert witnesses. Previously, only a court could appoint an expert, but the courts rarely used this option. If a party wanted to hear an expert, the expert’s role would be that of a witness. There was no formal distinction made between whether the testimony to be heard was based on empirical rules requiring special knowledge or on observations related to the disputed events.
Always an advance written statement from the expert
In accordance with the new regulation, the person to be heard concerning empirical rules requiring special knowledge is always an expert, regardless of whether that person is appointed by the court or the party. The expert must be known to be honest, competent in his or her field, and impartial. The most significant practical difference between an expert and a witness is that an expert always presents a written expert statement in advance, whereas a witness does not. An expert is heard orally only in exceptional cases, whereas a witness is heard orally as a main rule.
An expert is heard orally usually when a party requests such, and the hearing is not manifestly irrelevant. The courts typically will grant the request. However, a hearing should not be held solely for the purpose of having the expert explain the content of the statement he/she has already given; rather, the hearing must bring some added value to the written statement. Then, for example, how the case might be illustrated in the hearing is relevant. The expert’s personal characteristics may also be relevant to whether or not to request an oral hearing.
Likewise, the opposing party of the party appointing an expert may request an oral hearing of the expert. This is worthwhile e.g. when a written statement seems to be one-sided, and the opponent evaluates that their own view would emerge in the cross-examination of the expert. If multiple parties have appointed experts in the same topic and these experts have opposing views, the experts can also be heard opposite one another.
As a rule, an expert is present only when he/she is being heard. However, the court can allow, when needed, the expert’s presence also during the other parts of the proceedings. The expert’s presence may be needed in, e.g., a judicial view. The possibility to be present is not related to the possible need by the attorney to gain e.g. technical advice during the proceedings. For this kind of need, it should be noted that using a technical assistant in legal proceedings is not forbidden.
A witness might have become an expert
A transitional provision with regard to the presentation of expert evidence was not attached to the reform of the regulation. This means that the position of the individual to be heard may have changed during the ongoing legal proceedings. If a party had appointed in 2015 person “A” as (an expert) witness under a testimonial theme, which in practice meant applying empirical rules requiring special knowledge, person “A” was, as of the beginning of 2016, an expert rather than a witness. This caused urgent situations in early 2016, as a written expert statement had to be obtained quickly if the matter hadn’t been prepared for prior to the law reform. In these cases, it also had to be considered whether there is still a need for an oral hearing. There are still many ongoing legal proceedings that started before the beginning of this year. If the role of the appointed witnesses to be heard has not yet been reassessed, it should be done well ahead of the preparatory session.
The same applies to disputes that were initiated in a district court before the start of this year and being presented in an appellate court after 31 December 2015. Since a transitional provision wasn’t enacted for these kinds of situations either, the role of the person to be heard in the appellate court can differ from that in district court. In these situations, it is advisable to be in contact with a preparatory member of the appellate court about the procedure to be followed.
Overall, the new regulation about expert witnesses has, however, clarified legal proceedings. In particular, evidence involving complex technical details can be easier to understand when there is always a written expert statement supporting it. A more precise definition of the role of the person to be heard has also clarified the process of the main hearing.