The year 2020 is special in many ways. Expert reports are often used to gather evidence for future litigation. It’s a useful, even recommended, procedure for preparing for a trial on the merits, but it’s also an approach that can lead to effective, rapid problem-solving solutions. So, even for a defendant who has been taken to court, it’s possible to come out on top by choosing the right advice and strategy.
While the firm’s main area of expertise is real estate, and in particular construction, it is often called upon to intervene in summary expert appraisals in the medical, automotive, IT and other fields. In an eventful year such as the one we have just experienced, the hearings of the juges des référés are well attended, and there was a certain continuity of service. Health regulations did not stand in the way of site visits and expert appraisal meetings. The construction sector has been hard hit, not only by the crisis, but also by the weather and other structural and cyclical factors. In the real estate sector, the stakes are generally so high that recourse to the référé-expertise procedure is essential, but certain specific features should not be overlooked, as outlined below.
In short, whenever there is a need to have the facts established by an expert in the field, a referral for expert appraisal may be an option worth considering. Recourse to an expert thus makes it possible to obtain the opinion of a neutral third party who can not only make observations, but also carry out investigations, for example to determine the origin of the problem and propose remedies. We are also accustomed to giving it a conciliatory role, which enables rapid and effective solutions to be found to problems, provided that the parties have the will to achieve them. If this is not the case, the claimant can hope to use the expert report to assert his or her rights in a subsequent trial on the merits, or during post-examination negotiations. The defendant can already position his pawns in the hope of exonerating himself from possible liability.
It is often in the parties’ best interests to reach an agreement during the summary expert appraisal procedure, so as to avoid a long and costly trial.
There are certain areas in which agreement can be reached at the expert appraisal stage. This is particularly true in the construction sector, where the companies involved often have long-standing business relationships. As a result, they may choose to join forces to resolve the problem, rather than sticking to their positions and risking damage to their image and commercial relations, or the risk of having to pay damages by equivalent amounts, rather than seizing the opportunity to offer less costly reparation in kind.
In the medical field, it is often more difficult to find a solution, either because the damage is irreversible and difficult to assess, or because there are external factors preventing agreement. In our practice, we have observed that insurance companies can be reluctant to reach a swift conclusion, as they hope to obtain a better result at the end of the trial, while knowing that time and cost factors can play in favor of continuing the proceedings. On the other hand, we also had the opportunity to assist insurance companies and policyholders who were able to seize the opportunity to close claims satisfactorily and definitively. Insurance companies or other institutional clients may also adopt a reluctant attitude towards conciliation, hoping to create precedents and contribute to shaping jurisprudence in order to consolidate their position and better assess or anticipate future risks.
KAUFHOLD & REVEILLAUD has the advantage of having assisted customers from all walks of life, and can therefore explain certain issues to customers and anticipate adverse reactions. Always ready to listen to our customers, as a team we determine our strategy on a case-by-case basis, adapting it to circumstances as events and expertise dictate. To find out more: Civil & Commercial Law.
But before the expert is appointed, it’s crucial to ask the right questions and analyze the facts, documents and certain hypotheses. Although legal representation is not compulsory, it is strongly recommended, as there are many variables to take into account. These variables depend on the species, so it’s best to consult beforehand, as prevention is better than cure.
Among the various legal bases for appointing an expert is article 350 of the New Code of Civil Procedure, which states:
“If there is a legitimate reason to preserve or establish, prior to any trial, proof of facts on which the outcome of a dispute may depend, legally admissible investigative measures may be ordered at the request of any interested party, by petition or in summary proceedings.
The conditions of application are fairly easy to meet, and the majority of expert appointments are made on this basis.
For the claimant, this legal basis means that there is a high probability that the claim is well-founded. For the defendant, however, this does not mean that he has to passively undergo the expertise process.
There are still circumstances which do not allow an expert to be appointed on the basis of article 350 of the New Code of Civil Procedure, and other legal bases are frequently invoked. These include articles 932 and 933 of the New French Code of Civil Procedure. In such cases, the onus is on the claimant to establish the existence of special circumstances that underpin the claim. At the same time, the defendant will have more opportunities to contest.
Regardless of the legal basis chosen, it may be that certain points of the mission are open to criticism, or need to be adapted to the context, or, on the contrary, it is often the case that important points crucial to the further proceedings have been deliberately omitted by the opposing party. It is therefore advisable to seek advice in good time, and to adopt an attitude that enables you to anticipate events.
The person of the expert to be proposed is an element not to be neglected. Among the experts, there are those who have specialties or ancillary skills, such as a command of languages like German, or training in conflict resolution, for example, which could be of interest in certain subjects. Depending on the contract, the technical documentation or the customer’s preference, it is important that the expert has the particular skills required. It’s also important to bear in mind that some experts have busier schedules than others, which has repercussions on the flow of operations. Nor should we forget that the expert’s personality can have repercussions.
All these elements, and many more, need to be considered in the context of a summary expert appraisal, and it is important to be aware of these examples of thinking that can be done in the context of a summary expert appraisal.
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