EXPERT TESTIMONY ABROAD

Transcription

1 EXPERT TESTIMONY ABROAD Pablo A. GRILLO CIOCCHINI Grillo Pavan, Abogados Av. De Mayo 749, 2nd. Floor, Of. 6, Buenos Aires ARGENTINA Phone : Fax : pgrillo@grillopavan.com.ar

2 EXPERT TESTIMONY ABROAD 1. About Argentina s legal system 1.1. General Argentina s law system shows some peculiarities. Argentina s National Constitution is almost a copy of United States Constitution. However, we don t follow the common law system but the civil law system, mostly based on Roman principles, with a lot of laws inherited from Spain and France. Additionally, Civil Procedure Laws are drafted on ancient Spanish procedural laws with a touch of Italian influence in the middle of twentieth century. All this considered, we have a peculiar system in which a National Constitution similar to the US Constitution struggles with civil law system codes. Additionally, as a federal system, each province has the right to pass its own set of procedural rules. We will only refer to National Civil Procedure Rules as they are used by Federal Courts and are usually followed by several local jurisdictions No pretrial discovery Additionally, in Argentina there s no pre-trial discovery in the way it is known in the US. Parties have no obligation to disclose or reveal each other any documents or data. Prior to the trial, the Judge might order to disclose a specific document or data but only if the requesting party shows that there is some risk of this information being suppressed or manipulated by the other party. These cases are relatively rare. If the requested party fails to provide such document or data, the judge based on this fact can take an adverse presumption 1. However, no Civil or Commercial judge can order a non-litigating party to show or disclose any document or data if the holder of the documents formally refuses to produce the document because disclosure may be injurious to him. 1 Civil Procedure Rules, Section 388.

3 1.3. In writing proceedings Finally, all proceedings take place in writing. There s no jury trial and, furthermore, usually the judge is not present when parties and witnesses present their depositions or expert witnesses produce their reports. The complaint has to be filed in writing, with fully detailed description of facts and the relief sought by the plaintiff. All relevant documents must be filed with the court together with the complaint (unless they re not available). All the evidence has to be offered to the court at this moment (witnesses names, expert witnesses who may be needed, information to be requested to third parties, etc.) 2. Answer to the complaint also has to be filed in writing, with the burden of admitting or denying all relevant facts alleged by the plaintiff. The defendant also has to attach to his answer all relevant documents and to offer all the evidence he intended to produce 3. Due to preclusive system followed by Argentine procedural legislation, no opportunity is given to the parties to amend or modify the complaint or the answer or to offer new evidence (unless new facts arise before the ruling). So, all the allegations and claims have to be included in the complaint and its answer, as well as all the relevant facts and law arguments and the evidence. Witnesses shall make depositions in Court. Parties may present questionnaires to the other parties and witnesses and cross-examine the other party witnesses. Expert witnesses shall also present their depositions in writing. Further explanations and/or details requested by the parties and/or the judge shall be requested and presented also in writing. Once evidence production is completed parties may present their final arguments to the Court. These final arguments about the evidence and the merits of the case shall be presented also in writing. So, there s no such thing as a judge hearing the parties, the witnesses and the expert witnesses in an open hearing. The judge will read, after written final arguments were presented, the complaint and its answer, the records of witnesses depositions, and the expert witnesses reports. 2. Expert witnesses 2 Civil Procedure Rules, Sections 330 and Civil Procedure Rules, Section 354.

4 2.1. The experts If special knowledge is required to properly interpretation or analysis of the facts, parties might require expert s opinion. If the Court considers said expert s opinion is needed, one expert will be appointed by the Court. In certain special situations law imposes expert s opinion 4. Number of experts in each required field of knowledge is one. However, three experts may be appointed if the Court finds it convenient that because of the complexity of the case 5. Experts are free-lance professionals who are included into special registers the Court uses to appoint them by draw. However, in criminal cases, a special team of experts takes intervention, which depends on the judiciary. Court appointed experts are required to be impartial. They main purpose is not to advice parties but the Court 6 and to provide the special knowledge it might not have. Parties can also hire experts to provide technical assistance for the lawyer. These technical consultants are allowed to present reports to the Court, but they are not expected to be impartial since they advice only hiring party and not the Court Issues to be addressed by the experts When requiring the production of expert s reports, each party should indicate (i) the special knowledge required, (ii) the profession or academic grade required, if applicable, and (iii) the precise points or issues to be addressed by the expert on which the report should inform the Court. The other party has the right to challenge either the knowledge required or the issues proposed. The Court has the power to eliminate or add points to the lists suggested by the parties even if they have agreed on such points. 4 If no other proof of somebody s age, medical opinion is required (Section 87, Civil Code); also to declare somebody s incapacity due to mental insanity three experts should inform (Section 142, Civil Code). 5 When mental capacity is at stake three experts appointment is mandatory (Section 626, inc. 6, Civil Procedure Rules). 6 Section 458 of Civil Procedure Rules indicate that experts should be admitted whenever special knowledge of sciences, arts or crafts are needed in order to inform the Court. However, National Supreme Court has stated that they are both, the Court and the parties, who should be illustrated by the experts (in re Altieri, Antonio Carlos, decision dated Oct. 22, 1985).

5 2.3. Examination of persons, places or things If experts are required to personally exam persons, things or places, parties are allowed to assist to such examination. Parties technical consultants are also allowed to assist and to make observations or suggestions to the expert. In any case parties and/or technical consultant s presence is not mandatory and the expert can conduct the examinations by his own Expert witnesses reports As indicated above, experts should present their reports in writing by the date indicated by the Court. Failure to timely produce said report will result in loss of right to collect fees and/or the expert being removed from Court s register. Parties technical consultants may also produce their own reports. The report should include expert s conclusions and full description of their scientific or technical background in order to properly support the findings. Once produced, parties can make observations to expert s report within five days. Parties can also request further information or clarifications that the expert should evacuate if the Court has admitted said request. These clarifications should be made also in writing by submitting to the Court complementary reports. Further explanations and clarifications might be required by parties and the Court may allow them if deemed necessary to un-veal the truth. The Court has the power to require explanations, clarifications, and new reports or even to appoint new experts if the reports already produced are deemed un-sufficient or un-complete Explanations and cross-examination As indicated, expert witnesses should provide explanations and/or further details every time the Court requires them to do so. Said explanations are usually produced in writing as well as parties challenges to the report. The Court has the power to ask the expert witness to appear at Court and provide explanations or clarifications in an open hearing (mostly in damages and labor law claims). During such hearing the Court and the parties (with Court s permission) may ask the expert witness to clarify, provide scientific background or to answer to 7 Palacio, Lino E., Civil Procedure, Abeledo-Perrot, Buenos Aires, page 431

6 complementary questions in order to reveal the truth. No special form is required for the questions or interrogatory. Parties and their lawyers can also be assisted by their technical consultants or written sheets. However, such procedure is highly unusual and judges often strongly prefer to conduct proceedings in written Evaluation of expert s reports Courts are not supposed to follow expert witnesses reports every time disregarding their technical background, scientific sufficiency and accuracy. On the contrary, the judge has the power to set aside said reports if they appear to be wrong or if they oppose to relevant evidence or experience rules. Modern technologies such as DNA analysis- are challenging these rules on evidence analysis and appreciation Costs Costs of expert witness evidence (expenses and fees) shall be born by losing party, including fees corresponding to opposing party s technical consultant Summarizing Expert witnesses intervention is mandatory if special knowledge is required to appreciate the facts. Parties should offer such testimony by precisely indicating the issues to be addressed by the expert and the field of his specialty. Questions to be answered by the expert witnesses can be modified or deleted by the judge, who can also add new questions if necessary. Experts reports, clarification requests by parties or by judge and complementary reports are usually filed in written. Even if appearance of experts at an open hearing to answer questions is admitted, it is also a very unusual proceeding. 8 Section 68, Civil Procedure Rules.