Article 336 of the Spanish Code of Civil Procedure establishes that expert opinions provided by litigants should correspond to the complaint or the answer (without prejudice to the right in Article 339 of the Civil Act Procedure to request the court to appoint an expert).
Logically, the expert hired by each party is in support of their claims and/or in demerit to the expert report of the opposing party. Hence, the rationale behind the suspicion that Spanish tribunals of such expert evidence and its conclusions is not so much the contents of the report of each expert, but the participation that these experts have in judicial proceedings, whose proper preparation is therefore essential.
The issue is prominently summarized in the recent judgment of the Court of First Instance No. 7 Malaga of 26 June 2014, as the Second Law Foundation states:
We find ourselves before the typical proceeding for which expert evidence is necessary for its resolution. There is specific technical knowledge needed that the judge does not possess, even though, in this particular case, as often happens in this type of case, we have differing technical reports, one which benefits the plaintiff and the other the defendants. Both reports are made at the request of the parties and at their expense, which warrants little credit for this judging since those who hire and pay usually send biased reports that are complacent with the theory of each party. Therefore, based on the confidence that the expert witness raises (an assessment of the expert evidence which corresponds to the Judge) and according to reasoned judgment (a hypothesis that rests on another equally unquestionable proposition), it must be decided what the judge’s capacity to criticize is. Ordinarily, a judge’s capacity is limited in technical issues (or better said, extremely limited) and is a limitation that, in principle, should lead the judge to accept the conclusions of one of the experts. For these reasons, it is reasonable to conclude that the force of conviction of expertise rests only, or almost exclusively, on the trust of the expert that can awaken in the court.
Applying the above doctrine to this case, and for those reasons, the only expert who deserves real credit to the Court is Mr. ——-. Taking into account the priorities established by the TS in the event of divergent expert opinions, careful consideration must be paid to factors such as the professional or technical qualifications of the experts, the quantitative magnitude, class and importance or qualitative dimension of the data collected and observed by them. Therefore, based on these criteria, and given the operations performed and technical means used by that expert, particularly the detail, accuracy, connection and resolution of the arguments that they supported in their presentation, and the strength of their statements despite the detailed examination that was submitted by counsel for the defendant, I consider Mr. ——- more credible given the completeness, consistency and basis of his report and his testimony.
Needless to say, the decision was favourable to the party that appealed to the expert that had a better performance in the judicial proceeding, which shows that a good expert report is only the starting point of the activity that the expert must develop in judicial proceedings for which their services are hired.
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