New act on experts: a view through the eyes of an expert, lawyer and businessperson
In January 2021, a new law on experts, expert offices and expert institutes will enter into force (Act No. 254/2019 Coll.).
Unfortunately, the state has given up on changing the expert legislation as a whole and is only dealing with the law on experts and implementing decrees. The law imposes many formal obligations. These obligations should also contribute to better expert opinions. So, what are the fundamental changes compared to the previous legislation?
The view of an expert
Expert institutes are newly divided into expert offices (business corporations) and expert institutes (mostly public corporations). The difference in the participation of experts is important. An expert who works in an expert's office cannot perform activities independently. However, the expert may carry out the activity independently and, in addition, be involved in an unlimited number of expert institutes. The law therefore favours expert institutes. Although the court evaluates evidence (and expert opinions) freely, the law places institutes in a more qualified role. There must be two experts in an expert office and only one in an institute. Therefore, not even the law requires greater quality from an expert institute.
Expert activity will now be more expensive and face much greater administrative demands. Experts, offices and institutes must be insured. The entrance exam (the exam that an applicant for an expert stamp will have to pass) will cost at least CZK 8,000. The law places greater demands on the administration of the expert. The expert fills in the expert journal online. A central record of expert opinions has been created; this means that there is one large database in which all experts enter their opinions online. Data on the opinions are recorded at least three times (on the day the opinion is assigned, on the day the opinion is drawn up, on the day of the expert's testimony). The expert opinion has many formal requirements, which are specified in the law and in the implementing decree. The expert must meet the deadlines and non-compliance is penalised, even if unintentional. The expert must be insured and can now commit 15 offences. Only one of the 15 offences concerns the inaccuracy of the expert opinion.
The view of a lawyer
The definition of expert activity does not guarantee the confidentiality of the expert if the expert does not agree with the contracting authority to prepare an opinion. The wording of the law allows for an interpretation in which an opinion ordered by a lawyer from an expert may be used in court, against the will of the lawyer. At the request of a public authority, the expert will be obliged to personally confirm (Section 28 (6)) the opinion he has prepared. The law no longer says that this only applies to opinions prepared for public authorities. Experts will keep an electronic record of their opinions, which will be centrally administered by the Ministry of Justice, and the Ministry may allow the records to be inspected by state administration bodies. The records contain information on prepared or already drafted opinions. Even when the lawyer does not want to use the opinion. If the authority finds that the expert has issued an opinion that is not based on the file from these records, the expert can go defend the opinion. I see the risk here for lawyers and their clients mainly in criminal proceedings.
It is strange, but the positives are in what the bill ultimately does not contain: Section 127a of the Code of Civil Procedure should have been repealed. An expert opinion in civil proceedings provided by the party to the dispute was to be only documentary evidence. This would be easier for the courts to deal with. He must explain in this way in the judgment which of the several competing assessments he will ultimately use as support for his decisions. It is more difficult for the judge. But its repeal will certainly be proposed further under other laws. I see this as a reduction in the rights of the parties.
For judges I expect additional work when they must report the offences of experts to the Ministry. Because the opinion will be very structured (it will contain about eight parts), it will be easier for judges to compare opinions and therefore assess their quality. Judges often must judge two or more competing opinions. And here he sees a tool to help him make an assessment.
The view of a businessperson
An expert is not only an expert but also a businessperson. He must support himself, his team, his office, and his professional education. At the same time, the hourly rate has not increased in the last 17 years, and after the increase, it should now be between CZK 500 - 700. Unfortunately, as at the end of November there are still no implementing regulations. The law was published in the Collection of Laws in October 2019, and the Ministry of Justice has yet to issue implementing decrees.
The law now imposes many obligations on experts and penalises non-compliance with these obligations as a misdemeanour. In total, an expert can commit 15 offences, while only one (!) imposes a penalty on him for a false opinion. Other offences are not related to the veracity of the opinion. Experts will argue harder. There will be more intense haggling over the expert's fee. If the expert bills the expert fee and the court does not award it in full (e.g. at the request of a party to the dispute), then the expert commits an offence. If the expert bills the expert fee incorrectly twice, then he commits the offence repeatedly. This may constitute a reason for the loss of expert authorisation. In addition, the fines for the offence are considerable and amount to up to CZK 500,000. The punishment of experts is draconian. Prices for expert opinions will increase. Producing them will be harder, as well as formally more demanding. According to the old regulation, the opinion was to have two main parts: the finding and the opinion itself. Now it should have a formally modified main page, assignment, list of documents, finding, opinion, justification and conclusion. As mentioned above, the more detailed structure of the expert opinion is intended to make it easier to review.
Newly, a public authority (such as a court) is obliged to report facts indicating a violation of the Act on Experts to the Ministry. And if the expert is involved in a case where there is a lot of emotion and makes a formal mistake, the lawyer will tell the court that he suspects a violation of the law. The judge will not take any chances and will notify the Ministry, so that he does not face problems himself. I expect an increase in administration here, because the Ministry will have to deal with it. And the expert poisons it, and if he writes opinions, so to speak, out of passion and interest in the field, then he can return his stamp.
From my point of view, the law imposes many obligations on experts (mostly formal) under unnecessarily large sanctions. It tries to compel quality expert activity by force - a threat of punishment. It does not help them in any way in their expert activities. Procedural problems associated with expertise (procurement of evidence by an expert, evaluation of evidence by an expert and resolution of legal issues by an expert) are not legally resolved.
Experts can be divided into two groups. Experts whose main livelihood is writing opinions and experts from marginal disciplines, who write, for example, two opinions a year, I would rather call "fanatics". Even such experts will have to abide by the new formalist rules. The law does not distinguish between professional experts and "fanatics". It is in the second group that I perceive a great risk of experts leaving. And a problem arises when experts from marginal disciplines leave. This will not matter in cases where the expert works in major fields (e.g. real estate valuation). But it will be very problematic in cases where the expert works in marginal fields (e.g. the causes of parachute accidents) and there will be no replacement for him.