The use of expert evidence in the German courts
This time we head off to northern Europe, looking at the expert witness (Sachverständiger) in Germany. Although the system shares many common factors with other European jurisdictions, the German procedure – set out in §402-414 of the Zivilprozessordnung (Code of Civil Procedure) (ZPO) – has its own particularities.
When can expert evidence be used?
German courts will admit expert evidence where they consider the proof of facts or circumstances requires a special expertise or knowledge: §414 ZPO. Expert evidence is not limited to that produced for the present case. The court has a discretion to rely on relevant expert evidence presented in other cases: §411 ZPO.
The use of expert evidence is generally governed by the rules on other witness evidence, subject to §403-414 ZPO: see §402 ZPO. The expert’s report has the status of formal evidence but does not bind the court. Its purpose is to assist the court in reaching its decision and the court retains full discretion as to the weight to be placed on it.
How is the expert appointed?
§ZPO provides for the appointment and number of experts, the court retaining discretion to appoint more, as the case demands. The trial court normally delegates the appointment to the judge responsible for supervising expert investigations who assumes the powers and duties of the trial court: §405 ZPO.
Initially, the judge invites the parties to propose the names of potential experts, but may limit the number of choices. If the parties agree a choice, the court will appoint that expert.
The expert will, if possible, be appointed from publicly-maintained lists. Such experts are not subjected to the same qualification rigours as, for example, in France. Others may be appointed if special circumstances require it. The expert will usually have an academic degree in the relevant field. In most cases, they will be a professor at a German university or higher technical college or a member of a relevant institute or public body.
The appointment of a court expert does not prevent the parties from presenting their own expert evidence. However, this only has the status of submissions by the parties.
On appointment, experts must ensure the assignment falls within their expertise without the involvement of other experts. Otherwise, they must inform the court immediately: §407a ZPO. The expert cannot delegate their appointment but may employ staff to assist them.
How do experts carry out their function?
A court-appointed expert must be independent and impartial.
The evidence is produced in response to issues designated by the court for assessment: §403 ZPO. Depending on the specifics of the case, the court may:
- Hear the expert evidence before designating the issues to be addressed §404a(2) ZPO)
- If the facts are disputed, state the assumed facts on which the investigation will be based §404a(3) ZPO)
- Instruct the expert to involve the parties and determine the extent of their participation, including the calling of meetings with the parties §404a(4),(5) ZPO)
If the expert is unsure about the content and scope of the appointment – or anticipates that the investigation costs are disproportionate to the value of the dispute or advance on the expert’s fees the court’s clarification must be sought immediately: §407a(3) ZPO.
Although the court directs the expert’s activities, the expert decides without restriction how these will be carried out. For example, the expert may:
- Carry out any inspections of (and tests on) the disputed subject matter that are necessary to help form conclusions
- Interrogate witnesses
- Demand further information and documentation
If the parties retain their own experts, these effectively shadow the investigation and can avail themselves of the same rights as the court expert. Additionally, the parties (either through their own experts or their lawyers) can make representations to the court-appointed expert.
The court will stipulate a period within which the expert must complete their investigation §407 ZPO or – if they submit a written report (the more common requirement) – when they must file their signed report (see §411 ZPO). A written opinion must be in German and state that it is compiled impartially and to the expert’s best knowledge and belief. The expert can make this declaration to the court at the outset of the investigation: §410 ZPO.
On completing the investigation, the expert must return any documents, records or test results provided to them. Failure to file a report or return evidence can expose the expert to an order for costs and a fine: §409 ZPO. This is subject to a right of appeal.
The court may summon the expert to explain the contents of their report. The court sends a copy of the report to the parties and sets a deadline for the parties to file objections – or raise any supplementary questions – arising from the document. It will also usually fix a hearing for the expert to attend for cross-examination by the parties on his or her report.
In practice, the courts will rarely depart from the expert’s opinion when reaching its decision.
How can the expert be challenged?
An expert can be removed from office on the same grounds as a judge: §406 ZPO. The application can be made within two weeks of service of the order for the appointment. A later application can only be made if the applicant can prove that they were prevented, for reasons other than their own fault, from making an earlier application.
The grounds for removal §41 and 42 ZPO are that the expert either:
- Is (or represents) a party in the proceedings, or their spouse or life partner (even if the relationship has ended) is a party in the case, or they are related by blood or marriage (within certain degrees) to one of the disputants
- Has participated in a previous action or arbitration proceedings about the same subject matter, other than as an expert
- Is suspected of partiality or bias
The fact that the expert has been questioned as a witness is not grounds for removal.
How is the expert remunerated?
Experts are paid on a scale according to the Judicial Remuneration and Compensation Act. Their fees as treated as court expenses.
Where a party is completely successful in its claim, the fees are met by the losing party. If the claim is only partially successful, the fees will be apportioned by the court between the parties.