In recent years, we have seen an increasing demand for expert opinions for litigation purposes. Practice has shown that a well-prepared expert opinion that the expert can defend in the proceedings constitutes a material basis for claiming damages and for the court’s decision.
A major change in the practice of expert opinions prepared for lawsuits was introduced by Section 127a of the Rules of Civil Procedure, which took effect in 2011. This section provides that if an expert attaches to his/her expert opinion a clause – a statement – that s/he is aware of the consequences of an intentionally false expert opinion, the expert opinion will be considered commissioned by the court. In such a case, the expert opinion obtained by a party to proceedings will be on a par with an opinion requested by the court. This gives the party an opportunity to assign a high-quality expert opinion itself and not to rely on the quality of a court-appointed expert.
It is no secret that the quality of experts or expert institutes in the market is very diverse. The courts are forced to request review expert opinions on poor-quality expert opinions (commissioned either directly by the court or submitted by one of the parties). The review opinions may challenge or reject the conclusions of such unsatisfactory expert opinions altogether. Ultimately, the proceedings become an endless battle of expert opinions.
A high-quality expert opinion presented by a party can be a prerequisite for success in the proceedings. The courts should not refuse an expert opinion only for reasons such as that the other party presents an opinion with diametrically opposing conclusions (which in fact is a standard practice). Instead, they should make a proper assessment of the expert opinion as to whether its conclusions are adequately justified, whether the opinion is reviewable, sufficiently substantiated, relevant to the case and in compliance with the rules of logical reasoning, and whether the expert has analysed all facts that should have been analysed. The court should attempt to resolve any doubts it may have or any discrepancies between the expert opinions by questioning the expert/experts. On this basis, the court should be able to form its own opinion as to the relevancy and quality of the expert opinion.
In preparing their opinions, experts often make a mistake by venturing into areas that do not fall within their remit in terms of expertise. They analyse issues of a legal nature, do not give reasons for their conclusions, and do not provide sources of their information. As a result, such expert opinions contain factual as well as technical errors in calculations. Therefore, when selecting the expert to prepare an opinion for a lawsuit, it is more important than in any other cases to choose an expert experienced in this area who has an adequate expert licence (this information is available at the Ministry of Justice’s website). The key is to select an expert who is familiar (or will become familiar) with the issues analysed. Such an expert will prepare an opinion that will rely on documents and information available. The information will be provided in the expert opinion. The expert will be able to prepare a technically and factually correct opinion that will be properly justified and will be able to confirm his allegations in an examination. In our experience, an examination of an expert is required in the absolute majority of opinions prepared for litigation purposes.
Besides other matters, RSM CZ Valuation prepares expert opinions for litigation purposes as an expert institute included in the list of expert institutes qualified for Economics with the Ministry of Justice of the Czech Republic.
Please contact us for more information. We would be happy to advise you.
Radka Svobodová, Head of RSM CZ Valuation
Mobile: +420731411 263
E-mail: radka.svobodova@rsm.cz
