An Important Innovation Brought By The New Civil Procedure Law: Expert Opinion
The New Civil Procedure Law (“New CPL”) numbered 6100 which shall enter into force on 01.10.2011 by repealing the current Civil Procedure Law (“CPL”) provides numerous innovations through its entry into force.
One of these innovations is the concept of “Expert Opinion” set forth under Article 293 of the New CPL.
The aforesaid article is as follows:
(1) The parties may seek scientific opinions from experts, in connection with the subject matter. The parties may not demand additional time for this purpose.
(2) The judge may, upon demand or ex officio, decide the expert who submitted his report, to be summoned and heard. The judge and the parties may ask questions at the hearing in which the expert assists.
(3) In the event that the expert does not appear in the hearing in which he is summoned without a justified reason, the judge shall not take the report drafted by the expert into consideration.
In the legal ground of the Article, it is stated that the concept of “party expert” or “expert witness”, which are the concepts of Anglo-Saxon legal system, has been regulated and the aforesaid Article is similar to the dispositions of the Criminal Procedure Law.
As is stated in the justification, the expert opinion differs from the concept of expert appointed by the judge, and the court may appoint an expert ex officio, or upon demand of the parties. In addition, the parties may benefit from the opinions of experts which have not been appointed by the judge. Therefore, the parties may provide expert opinions with regards to special and technical matters, and support their claims with these opinions.
Under civil procedure, the parties frequently submit to the court the opinions with regards to technical matters, including legal issues, provided from the experts, in order to support their claims or defenses. Therefore, the New CPL regulated a practice which was applied, even though it was controversial.
The aforesaid article regulates that the parties may not demand additional time in order to provide an expert opinion, the judgment may not be delayed, and that the judge shall evaluate the expert opinion submitted to the file in his own discretion. This disposition aims to prevent the claims which are submitted in order to delay and extend the trial period in bad faith. It should be emphasized that the expert opinion is not binding upon the judge.
In the second paragraph of the Article, it is clearly stipulated that the expert whose opinion is consulted may be heard in the court. The expert whose opinion is needed by the party in order to support its claims or defense may be summoned by the court ex officio or upon request of the other party. During the hearing, the parties or the judge may interrogate the expert. It is stated in the legal ground of the Article that the aim of the disposition is to clarify the issues requiring a special expertise and to prevent the judgment to be adversely affected by contradictory or imperfect knowledge or misinformation.
Summoning the expert to the hearing is widely exercised in several law systems. By this way, the difficulties for the court resulting from abstract or incomprehensible technical issues shall be removed in order to clarify the subject matter.
In the last paragraph of the Article, it is emphasized that the judge shall not take the report drafted by the expert into consideration in order to prevent delay of the judgment in the event that the expert does not appear without a justified reason in the hearing in which he is summoned. Since the hearing of the expert aimed to clarify the doubts resulting from the report and the report causing doubts may not be taken as a basis for a fair judgment, the absence of the expert in the hearing may cause such sanction for the report.