1. Questions to which my opinion tries to answer:
I. Who will benefit from the Expert directories?
II. What type of data Expert directories should have?
III. What organizational form the Expert directories could have?
IV. Who should be in charge of the Expert directories?
2. Premises for my opinion:
In order to issue an opinion on the matter of discussion, I have founded my arguments starting from the following premises that the Expert directories should meet:
1) Be transparent;
2) Be easily accessed;
3) Be easily understood;
4) Be permanent available;
5) To address the needs of the beneficiary;
6) Be regulated (should benefit from the protection of national/EU laws).
Although the majority of the premises are reasonable, the most debatable premises would be the 6th one, namely that the Expert directories should be regulated.
In my opinion the Expert directories should be regulated for the following reasons:
a. The activity exerted by the expert witness is an activity specific to a public functionary (public servant)
Please note that we are referring to experts appointed by the courts, which excludes experts appointed by the parties – as such, once an expert was appointed by the public court, he starts a mission of expertise in the public interest, so that the act of justice to be fulfilled.
The implications of the above mentioned far exceeds the present opinion, however, what I would like to emphasize is that the activity of the expert witness is of public interest, and, as such, due to its public importance, a form of regulation should be embraced.
Although there should be made a difference between the inherent activity of an expert (technically) and the way the evidence of the expert witnesses is kept, we cannot ignore the need for a regulated mechanism for the experts to:
• access the profession of expert witness,
• to exert the activity of expert witness,
• to establish the financial circuit of the fees specific to the expert witness activity,
• to develop and perform in the profession,
• to establish the rules and limits by which they act,
• to establish the procedural conditions for deregistration.
All the above aspects, due to their complexity, importance and relevance for the judicial system, cannot be left outside of Expert directories and regulation.
As a consequence, regulation is a must in order to protect on one side the fulfilment of the act of justice, and on the other side to assure a transparent form of organization of the expert witnesses.
Either the form of organization of expert witnesses is subject to association or approval by a state institution, in either case Expert directories, in my opinion, should benefit of state regulation (and protection).
b. By their simple admittance, Expert directories, implies a set of rules and conditions to be admitted in such registries
Please note that, in my opinion, the activity of expert witness cannot be exerted by itself, without being recognized by an institution. Expert witness implies an appointment by a jurisdictional court, as such, a form of regulation must be met in order to be appointed by such a court, assuring thus objectivity, transparency, uniform and predefined rules for all litigant parties.
c. Any Expert directories should assure the protection of the expert witnesses
Please note that exerting the activity of expert witness is an act of will of the expert, which:
• starts from the application to be part of this profession,
• evolves in the profession,
• exits from the profession if conditions are met (disciplinary, voluntary, etc).
Having in mind the above, the willingness to be an expert witness is a consequence of attendance to judicial predefined set of rules and professional standards – otherwise, admittance to be an expert witness will be no different than that to the extrajudicial profession.
For all of the above, my conclusion is:
1) Expert directories should benefit from the protection of national/EU laws;
2) Expert directories have to be a consequence of a set of regulations (national/EU laws – depending on type of Directory – national or transnational) in what regards the intrinsic activity of the expert witnesses, as public servants (admittance in the profession, evolving in the profession, deregistering from the profession).
3. Analysis for each of my challenged question:
I. Who will benefit from the Expert directories?
Identification of the beneficiaries is an essential component of the analysis, as by identifying them I understand: the levels of complexity that I should address, manage and find solutions accordingly.
In my opinion, the following are the Beneficiaries of the Expert directories:
1. European Union
2. National governments
3. Institutional national bodies (Judicial system)
4. Expert witnesses
5. Litigating parties
The implementation of the Expert directories should have in mind first and foremost the needs of the judicial system of each state, secondly the litigating parties.
The mentioned institutions (a. & b) are in my view more of support bodies which facilitate the easily access to the expert witness domain and bodies that contributes to the consolidation to the credibility of the act of justice.
Expert directories, by collecting and processing data related to the specificity and to the activity of the experts witnesses at national and transnational level could bring added value to each of the beneficiaries.
A short analysis on each of the beneficiaries:
1. European Union
1) A fundamental question must not be ignored: Are the Expert directories feasible only at national levels or could be feasible at transnational level (EU level)?
As mentioned above, in my opinion any Expert directory should have some sort of regulation (a predefined set of rules), case in which, admitting an Expert directory at transnational level (EU), there should be a mandatory regulation at EU level in this regard. As there is no regulation in this field at the present moment and is not intended to develop such unitary set of rules (as of what I am aware), an Expert directory at EU level cannot be enforced and, as such, the feasibility is not supported due to absence of regulation.
However, at present, an Expert directory at EU level can be (partially) feasible by voluntary registration – either personal (by expert witnesses), either institutional (by institutional bodies specific to each EU country) – case in which, a predefined set of rules must also be available for membership attendance.
2) What will be the role of such Expert directory at EU level?
The role of such Expert directory at EU level in my opinion consists in:
i. a source for appointing expert witnesses for European institutions (e.g. European Public Prosecutor’s Office, European Court of Justice etc);
ii. a source which brings added value in the field of expert witness profession: by issuing best practice standards in the field of judicial expertise, guidance in aspects to the expert witness activity (as example: avoiding conflict of interest, defining a set of values as objectivity, transparency, impartiality etc);
iii. a source of selecting expert witnesses by third parties.
2. National governments
At the national government level, understanding the complexity of the activity of the experts, helps the state to better regulate or address matters that improve the activities of the institutional bodies or of the experts.
3. Institutional national bodies (Judicial system)
At the level of the Institutional national bodies (justice system), by directly working with expert witnesses and litigant parties, could propose at the governmental level better ways to improve the activity of the expert witnesses.
4. Expert witnesses
Expert witnesses, by offering specific data related to their activity could have multiple benefits:
i. Visibility;
ii. Self-improving;
iii. Self-monitoring;
iv. Competitive advantages;
v. Transparency.
5. Litigating parties
For the Litigant parties as well as for the Judicial system, it is evident that by having access to multiple institutional data, confirmed at national and transnational level, they can only make informed decisions and obtain professional assurances in relation to the activity of an expert witness.
II. What type of data Expert directories should have?
As noted previously, the activity of the expert witness:
• reflects an act of will, in the sense that the expert accepts to be appointed by courts in various cases,
• the activity the expert exerts is assimilated to a public servant activity,
as such, extended public data related to the expert’s activity must be available in the Experts directories.
Consistency matters in our case, because it brings professionalism and quality, as a consequence the Expert directories should provide sufficient information to the judges and litigant parties in such a manner that the information should go beyond the traditional data:
o Field of expertise
o Name
o Contact data
o Area of territorial practice
The Expert directories should provide sufficient information to the judges and litigant parties in such a manner that the information should include additional data, at least as follows:
a. If the expert witness follows a yearly process of continuing professional development (CPD) – formal (attending specialized courses in the field of practice) or informal (e.g. personal study),
b. If the expert is a member of a professional body which regulates the field of practice,
c. If the expert witness applies the professional body standards and which ones – there could be (many) national, transnational or international standards,
d. Background professional data,
e. Specialization in particular type of expertise,
f. Eventual opinions/articles of the expert witness on frequent cases,
g. Efficiency on issuing the expert witness report once all data has been collected by the expert
or
h. A system of monitoring and evidencing the number of the expert witness reports under work (there is no sense to allocate an expertise to an expert which has 100 reports under work, while others have none).
III. What organizational form the Expert directories could have?
1) Analysis and thoughts on the subject on matter:
The form of the organizational institution which manages the Expert directories is essential, in this regard some premises must be clarified in order to identify possible organizational forms:
1. Expert directory is a list which comprises only expert witnesses who have been certified to practice in the field of judicial system;
2. Expert witness activity starts once a court or jurisdictional institution appointed a member from the Expert directory;
3. Once an expert witness was appointed by the court, an activity in the public interest has begun, so that the act of justice to be fulfilled;
4. Fulfilling the act of justice is an attribute of the state;
5. During the mission to materialize the professional opinion in a report, the expert witness exerts a work as a public servant.
Having said the above, I would start to consider which organizational form can assure the fulfillment of the act of justice, having in mind:
a. The law, in the sense that the activity of the expert witness is performed according to the law, to its specific procedures and best practices,
b. The litigant parties, in the sense that the expert activity must be objective, impartial and transparent,
c. The expert witness, in the sense that the expert witness must be protected and responsible while he exerts his mission as an expert witness.
Another conclusion that I deduct from the above is that the organizational form which manages the Expert directory has attributes beyond simple evidence of its expert witness members. Such an organizational form would have also attributes in what regards:
i. Admission in the field of expert witness;
ii. Proper activity monitoring of the expert witness;
iii. Proper system to develop the profession of expert witness;
iv. Proper mechanism to compensate and sanction the activity of expert witnesses;
v. Proper rules to deregister an expert witness form the Expert directory.
2) In my opinion there are two viable organizational forms:
1. An institution under the state’s Ministry of Justice
Due to the importance of the activity of the experts, an Expert directories being under the organization of a state ministry, could provide credibility, impartiality, efficiency in managing flow of information between courts and the state ministry.
Although the above are important factors for the current activity of the expert witnesses, there are also some other factors needed to make performance in the profession of expert witness.
The factors to which I refer correspond to:
a. managing continuous professional development;
In my opinion expert witness development is not limited only to the technical side of the specialization, but also to argumentation, oratory, law knowledge and applicability, legal concepts and interpretation, specific case studies etc;
b. managing and adapting to the real challenges confronted in day-to-day activity by expert witnesses;
c. proper understanding and guidance in case of disciplinary sanctions,
d. proper monitoring the activity (at least by quality and volume) of the expert witnesses.
2. An associative organization of the expert witnesses
Assuring an independent and autonomous institution which belongs to the expert witnesses could bring more added value to their activity. An associative organization may address much better than a state ministry aspects which could improve the activity of the experts (see point 1. a-d above).
Having said the above, I consider that any of the above organizational forms may assure the fulfillment of the act of justice, if proper regulated.
Personally, I would be more inclined on an organized form under a state Ministry of Justice due to the fact that the expert witness exerts a work as a public servant.
IV. Who should be in charge of the Expert directories?
1) The bodies in charge of the Expert directories depend on the type of the organization form which is adopted at state level. Either the organizational form is specific to a public institution or an associative one, any of such institution should have an organizational structure to cover at least:
1. Admittance in the profession of expert witness;
2. Monitoring the evidence of the expert witness;
3. Assuring continuous professional development;
4. Implementing guidance;
5. Analyzing and applying disciplinary sanctions;
6. Identifying if conditions for deregistration are met.
Please note that all activities mentioned above are specific to some sort of an organizational body, being irrelevant their name, but more important being their specific activity which have to be seen intercorrelated in order to assure a proper management of the Expert directories.
