Lawyer Baris Erkan Celebi
I. INTRODUCTION
Expert opinion (also known as scientific opinion or special opinion) has been regulated for the first time by Article 293 of the Code of Civil Procedure No. 6100 (“CCP”). According to Article 293, each party may obtain a scientific opinion from an expert on the subject matter of the lawsuit and submit it to the court, and may request that this expert be heard at the hearing.
Expert opinion is one of the evidences to be appreciated by the court, just like the expert report. However, unlike the expert report, expert opinion may be taken not only on technical issues, but also on any matter subject to the lawsuit, including legal issues.
With the amendment to Article 266 of the CCP regulating expert examination, which entered into force in November 2016, the amendments made to the Regulation on Expert Witnesses in August 2017, and finally some administrative practices put into force as of 01.01.2018, the appointment of legal expert witnesses to the case files and the issuance of expert reports on the legal aspect of the dispute have been effectively and definitively prevented. Preventing the appointment of so-called legal expert witnesses, who are graduates of law faculties and appointed as legal experts, has made the institution of expert opinion, which can provide opinions on legal issues, much more critical.
II. OVERVIEW OF EXPERT OPINION
The concept of “expert opinion” or “scientific opinion” in procedural law was regulated for the first time in 2011 with the CCP No. 6100. Article 293 titled “Expert Opinion” stipulates that each party may obtain a scientific opinion from an expert regarding the case. Although the regulation is new, since expert opinions were submitted to the file under the name of “Special Report” during the Law No. 1086, this regulation is not unfamiliar[1] .
When the justification of the article is examined, it is stated that the regulation is based on the Anglo-Saxon institution of “partisan expert” or “expert witness” and is in parallel with the regulation in the Criminal Procedure Code.
Indeed, unlike Continental European law, in Anglo-Saxon law, the expert witness process is generally conducted through “party experts” or “expert witnesses” found and paid for by the parties themselves. To give an example from the United States of America law, in matters requiring special and technical examination, each party is free to have an expert of its own finding and expense heard as a witness in court[2] . The court may, however, appoint experts in addition to the experts chosen by the parties and at its discretion, if it deems it necessary, for example, if it is necessary to establish a fact that cannot be proved by the parties’ experts, or if it is necessary to resolve a significant conflict between the opinions of the parties’ experts3 . However, this power is rarely used by American judges[3][4][5] and according to statistics, 81% of judges have never used this power in their professional life and only 8% have used this power more than once[6] . Therefore, in general, it can be said that the parties freely appoint their own experts in American procedural law.
Likewise, in English Law, until 1999, the parties appointed their own experts, as in American Law. However, as a result of the Woolf Reform introduced by the new procedural law in 1999, it is regulated that the parties shall agree on a single and joint expert, this expert shall be impartial and his/her liability shall be to the court and not to the parties[7] . Therefore, despite the reform, the procedure of appointing the expert witness by the parties has been preserved.
When we look at continental Europe, special expertise is not specifically regulated in the Swiss and German procedural laws, and the reason for this is the opinion that expert opinion cannot be accepted as evidence[8] . However, even though it is not regulated in the law, it is seen that in German and Swiss law, just like in Turkish Law during the HUMK period, the parties submit special reports as a declaration to the file and special expertise is applied in practice.
Consequently, the expert opinion regulation is inspired by the Anglo-Saxon system of party expert witnesses, in which the judge plays a more passive role and the party lawyers play a more active role. Although the explanation for the reference to the Anglo-Saxon system is not specified in the preamble, in my opinion, the legislator aimed to give the parties and their counsel a free hand to direct the proceedings by departing, to some extent, from the restrictive style of Continental European law, where the proceedings are mostly managed by the judge. In my opinion, this regulation is appropriate, and in cases that require special and technical examination and especially in cases with a high dispute value, the parties can now facilitate access to information by obtaining qualified opinions from experts in their field by paying their expenses and submitting them to the file. The resulting wealth of information undoubtedly serves to increase the quality of the proceedings and the accuracy of the judgment. Although expert opinions are sometimes criticized with the term “paid opinion”, claiming that the opinions received are biased and always in favor of the party providing the opinion, in my opinion, this discussion is unwarranted. Because discussing and negotiating as many different opinions and information as possible together will always lead us to the most accurate decision, and it is meaningless to discuss whether these opinions are biased or neutral.
III. EXPERT OPINION IN TERMS OF PROCEDURAL LAW
A. Subject of the Opinion
Expert opinion is defined in the first paragraph of Article 293 of the CCP as “The parties may obtain a scientific opinion from an expert in relation to the case”. Unlike Art. 266 et seq. regulating the expert witness, the subject matter of the expert opinion is not limited to technical examinations, and legal interpretations and evaluations are not prohibited. Therefore, it is inferred from the wording of the provision that the subject matter of the expert opinion is free, provided that it is related to the subject matter of the lawsuit, and that legal examinations and opinions may be stated in addition to technical examinations[9] .
B. Responsibility of the Opinion Provider
Unlike an expert witness, the person providing an expert opinion has no criminal liability and no legal liability to the other party[10] . The only liability of the expert is contractual liability against the party benefiting from the opinion in accordance with the provisions of the Law of Obligations on the contract of work[11] .
C. Appointment of the Opinion Provider
The expert is selected by the party to be consulted on the basis of his/her expertise and reliability in the matter on which he/she is to render an opinion, and an agreement is reached on the drafting of the opinion. Undoubtedly, the fee to be charged by the expert shall be paid by the party who will benefit from the opinion. As to whether this fee can be collected from the other party at the end of the trial, it is generally accepted in the doctrine that even if the case is won, this expense will be borne by the party benefiting from the opinion and cannot be requested within the trial expenses[12] .
D. Submission of Opinion Phase
The expert does not directly submit his/her opinion to the court. The opinion may either be submitted to the court in writing as an annex to the petition by the party who will benefit from the opinion, or the comments and examinations stated in this opinion may be prepared as a declaration petition and submitted to the court. Pursuant to Article 293/1 of the CCP, no additional time may be requested from the court for the submission of the expert opinion.
While the expert report is consulted at the investigation stage, the expert opinion, unlike the expert report, can be prepared even before the lawsuit is filed and submitted as an annex to the lawsuit petition, the expert opinion can be used in the preparation of the lawsuit petition, or it can be submitted to the file at or before the investigation stage[13] .
When one of the parties applies for an expert opinion, it is obligatory to give the other party a reasonable time to make a statement against the expert report[14] , and the failure to give a reasonable time is accepted as a reason for reversal by the Court of Cassation.[15] .
E. Questioning the Opinion Provider
Pursuant to Paragraph 2 of Article 293 of the CCP, the judge may, upon request or ex officio, decide to invite and hear the expert from whom the report has been received, and the judge and the parties may ask the necessary questions at the hearing. Although the invitation is subject to the discretion of the judge in the relevant article, if the judge rejects the request, he/she must justify it; the judge should not reject it without justified reasons[16] .
Contrary to the oath stipulated for the expert witness in Article 271 of the CCP, the expert who offers an opinion does not take an oath before being heard[17] .
If the expert does not appear at the hearing without a valid excuse, his/her report shall not be evaluated by the court. The purpose of this regulation is to prevent the delay of the proceedings[18] . The judge shall decide whether the excuse is valid or not.
F. Evidential Strength and Evaluation of the Opinion Submitted
One opinion in the doctrine argues that, unlike the expert report, the expert opinion is not evidence in the sense of procedural law, it is a written statement of the parties and helps the judge to form his personal opinion[19] . As a justification for this, it is stated that the guarantees stipulated in Article 272 of the CCP for the expert report to be impartial and objective do not apply to the expert opinion[20] . However, especially in matters requiring special and technical knowledge, the court is obliged to consider and evaluate the expert opinion submitted by the parties on the subject matter of the case[21] . Failure to evaluate the legal opinion relied upon by the party in the judgment will violate the right to legal rest and will also be considered as a violation of the right to a fair trial[22] .
Contrary to this view, another view argues that the expert report is discretionary evidence and the discretion belongs to the court22 .
If the opposing party challenges the expert opinion, the court must appoint an expert to rule on the challenge; when the expert report contradicts the expert opinion, a new expert examination must be conducted to resolve the contradiction[23] . Likewise, when the expert opinion of one party contradicts the expert opinion of the other party, the court must resolve the contradiction with an expert report[24] .
IV. NEW REGULATIONS IN THE FIELD OF EXPERT WITNESS
Finally, I would like to talk about the recent amendments to the expert witness institution, as these amendments are of great importance in terms of expert opinion, which I will explain in a moment.
Although the first paragraph of Article 266 of the CCP, which regulates the expert, clearly states that the expert report may be prepared on matters “requiring special or technical knowledge other than law”, it has been observed that the expert reports submitted to the courts for many years have been prepared by lawyers and that the expert reports have been prepared by lawyers, and that the judge has made interpretations and examinations on the legal aspects of the case by almost replacing the judge, and that the judge has made a decision in line with these legal opinions; in other words, the legal judgment and evaluation that should be made by the judge has actually been carried out by the experts.
In response to this problem, sentences 2 and 3, which emphasize the prohibition of legal opinion, were added to the first paragraph on 03.11.2016, although the first paragraph clearly states “other than law” and there is no need for it. In these sentences, it is regulated that expert examination cannot be conducted on matters that can be resolved with legal knowledge, and that persons who have studied law can also act as experts on matters outside the field of law by certifying their expertise in these matters.
However, due to the persistence of the problem in practice, the Expert Witness Regulation No. 30143 was issued on 03.08.2017 and the selection of experts by lawyers was prohibited by Article 38, and Article 55 reiterates that the expert report shall not contain legal qualifications and evaluations.
Not content with this, Article 72 of the Regulation stipulates that the expert should not express an opinion on legal issues as one of the criteria for the supervision and performance evaluation of the expert by the regional board.
Articles 59-62[25] of the Regulation, which regulate the supervision of experts, stipulate severe sanctions, up to the penalty of removal from the register and list, in case the expert acts in violation of the rules set forth in the Regulation.
Subsequently, on 29.11.2017, the Ministry of Justice, General Directorate of Legal Affairs, Department of Expertise announced the Announcement Regarding Admission to Expertise and Application Procedures and Principles of Expertise26 . In Article 2 of the section titled application requirements, graduates of law faculties are prevented from applying for expert witness, and documents indicating their expertise in one of the technical expertise areas specified in the announcement, regardless of their legal identity, are required as application requirements.
In order to ensure that judges as well as experts comply with these regulations, the Law on Judges and Prosecutors No. 2802 was amended on 03.11.2016, and the sentence “Failure to comply with the rules determined by law during the selection and assignment of experts” was added to the end of paragraph 1 of Article 63, which regulates the warning penalty to be given to judges and prosecutors, paving the way for a warning penalty to be given to judges who appoint legal experts.
Finally, with the practice that entered into force on 01.01.2018, an amendment was made to prevent the payment of expert witness fees from the court cashier to legal experts who do not meet the application requirements for expert witness, and the payment of fees to legal experts was made de facto impossible with the change made in UYAP. For this reason, the payment of the fees of legal experts who do not meet the new expert witness application requirements, but who were previously appointed as expert witnesses and entitled to a fee, has become very difficult since the beginning of the year, and the method of payment has been resorted to by writing a letter to the Expertise Department each time.
The sudden and complete abolition of legal experts without any preparation and infrastructure work has caused some problems in practice, and the Ministry of Justice has received a number of suggestions and complaints, especially since the calculation of workers’ receivables in labor cases is too complex and requires expertise that cannot be handled by judges or experts who are not law school graduates.
Upon these complaints, in March 2018, in the 2nd period of 2018, in the field of “Qualified Calculations”, which is one of the sub-specialties of expertise, Actuarial (Incapacity / Deprivation of Support), Qualified Calculations arising from Labor Legislation, Qualified
Calculations arising from Social Security Legislation, Qualified Calculations arising from Trade Unions and Collective Labor Agreement Legislation, The titles of Qualified Calculations arising from Execution and Bankruptcy Legislation and Qualified Calculations arising from Family and Inheritance Legislation have been added and the qualifications required for experts in the field of Qualified Calculations have been amended as “Associate or undergraduate (including those who have studied law) of universities.” has been amended as follows. This amendment paves the way for the appointment of law school graduates as experts only in matters requiring qualified calculations in the areas listed above. However, as can be seen, this regulation is a very limited exception to the prohibition on the appointment of legal experts.
These amendments to the institution of expert testimony have further increased the importance of the expert opinion institution, considering that expert opinions are free to be written on legal issues and by legal experts. This is because the parties will now have to rely more heavily on expert opinions in order to convince the court in legal matters where the judge cannot be a “judge” and where specialized expertise is required, and this will bring us closer to the aforementioned institution of party expert witnesses in Anglo-Saxon law. As a result, I believe that it may become routine for the parties to submit expert opinions as evidence on the issue they wish to persuade the court on, a development that will greatly improve the quality of the proceedings and the accumulation of legal knowledge.
V. CONCLUSION
Expert opinion is a new institution that entered the legislation in 2011 with Article 293 of the CCP. However, prior to the CCP, the parties were submitting expert opinions to the file in the statement of claim or as an annex.
Expert opinion is inspired by the Anglo-Saxon institution of “party expert” or “expert witness“, where experts are appointed by the parties and the proceedings are conducted through special experts, and the preamble of the Law refers to the Anglo-Saxon law. On the other hand, the German and Swiss laws, on which our procedural law is based, do not regulate the institution of special experts or expert witnesses; instead, the parties submit expert opinions to the file as a declaration, just like in the pre-CPC period.
Unlike an expert witness, an expert opinion may be on the legal aspect of the case, or on any subject that requires technical and specialized knowledge on the subject matter of the case. Again, unlike the expert witness, the person providing the opinion is not subject to civil and criminal liability (the party benefiting from the opinion is still liable for the work contract). Therefore, in practice, the impartiality of expert opinions is criticized and sometimes not taken into consideration by the courts. However, as stated above, it is obligatory for the court to evaluate the expert opinion, to justify the decision contrary to the expert opinion, and to refute the expert opinion with expert reports to be issued by the court. An opinion to the contrary is also a violation of the right to a fair trial, as it violates the right to legal rest.
Whether the expert opinion is neutral or impartial, the information and opinions presented, provided that they are relevant to the subject matter of the case, will create a wealth of information, increase the quality of the proceedings and serve to establish the most accurate judgment.
Finally, the changes that have been made and are currently being made to the institution of expert witnesses have greatly increased the importance of expert opinion. In particular, the strict prohibition of law school graduates from acting as expert witnesses and the issuance of expert reports on legal matters will lead parties to rely even more heavily on expert opinion to persuade the court in legal matters, moving closer to the aforementioned Anglo-Saxon institution of party expert witnesses.
SOURCE
KILIÇOĞLU, Mustafa, Hand Commentary to the Code of Civil Procedure No. 6100, Istanbul 2012
KURU, Baki/BUDAK, Ali Cem, Main Innovations Brought by the Code of Civil Procedure,
(Journal of Istanbul Bar Association, 2011/5 p.3-43)
KURU, Baki, Textbook of Civil Procedural Law, Ankara 2017
ÖZBEK, Mustafa Serdar, Evaluation of Expert Opinion in Trial, (Türkiye Noterler Birliği Hukuk Dergisi 2017-1 p.63-162)
PEKCANITEZ,Hakan / ATALAY,Oğuz / ÖZEKES,Muhammet, Textbook of Civil
Procedural Law (shortly “Textbook”), Istanbul 2017
PEKCANITEZ, Hakan, Civil Procedural Law Volume II (shortly “Volume II”), Istanbul 2017
PEKCANITEZ, Hakan, Special Expert (Expert Witness) Opinion and its Evaluation (Prof.
Dr. Saim Üstündağ’a Armağan, Ankara 2009, pp. 397-418)
TIMMBERBEIL, Sven, The Role of Expert Witnesses in German and U.S. Civil Litigation,
Annual Survey of International & Comparative Law, U.S.A. 2003, Volume 9, Issue 1, Article 8
TOROMAN, Barış, Expert Witnesses Appointed by the Court in Anglo-American Law, Anadolu University Journal of Social Sciences, Eskişehir 2013
[1] KILIÇOĞLU, Mustafa, Commentary to the Code of Civil Procedure No. 6100, Istanbul 2012, p.1178
[2] TIMMBERBEIL, Sven, The Role of Expert Witnesses in German and U.S. Civil Litigation, Annual Survey of
International & Comparative Law, U.S.A. 2003, Volume 9, Issue 1, Article 8, pp. 165-166, https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1076&context=annlsurvey (Access Date 04.03.2018); TOROMAN, Barış, Bilirkişiler Court Appointed Expert Witnesses in Anglo-American Law, Anadolu Üniversitesi Sosyal Bilimler Dergisi, Eskişehir 2013, pp.117-119
http://uvt.ulakbim.gov.tr/uvt/index.php?cwid=9&vtadi=TSOS&c=ebsco&ano=167614_735800736ed00ac65db5
[3] a2c07121694&? (Erişim Tarihi 04.03.2018);
[4] TIMMBERBEIL, p.167; TOROMAN, p.117-118
[5] This authority is regulated in Federal Rule of Evidence art.706 (Article 706 of the American Federal Rules of Procedure).
[6] TIMMBERBEIL, p.168
[7] TOROMAN, pp. 119-121
[8] PEKCANITEZ, Hakan, Special Expert (Expert Witness) Opinion and Evaluation (shortly “Expert Opinion”), Articles (2 Volume), Istanbul 2016, dpn.36-39
[9] On this issue, see: PEKCANITEZ, Hakan, Special Expert (Bilirkişi) Opinion and its Evaluation (Prof. Dr. Saim Üstündağ’a Armağan, Ankara 2009, pp. 397-418) p. 407. “On the other hand, expert opinion may also be related to the legal issue.”; KURU, Baki/BUDAK, Ali Cem, Main Innovations Brought by the Code of Civil Procedure, (Istanbul Bar Association Journal, 2011/5 p.3-43)p.19; KURU, Baki, Medeni Usul Hukuku Ders
Kitabı, Ankara 2017, p.316 see. “Expert opinion assists courts and right-seekers in complex legal matters.”; ÖZBEK, Mustafa Serdar, Yargılamada Değerlendirilmesi Uzman Görüşunun, (Türkiye Noterler Birliği Hukuk
Dergisi 2017-1 p.63-162), p.91-99
[10] ÖZBEK, p.123, p.133 and the authors cited therein at note 127
[11] PEKCANITEZ, Expert Opinion, dpn.29-30
[12] PEKCANITEZ (ATALAY, ÖZEKES), Textbook, p.411
[13] PEKCANITEZ,Hakan / ATALAY,Oğuz / ÖZEKES,Muhammet, Textbook of Civil Procedural Law (shortly “Textbook”), Istanbul 2017, p.410
[14] PEKCANITEZ, Hakan, Civil Procedural Law Volume II (shortly “Volume II”), Istanbul 2017, p.1961
[15] Judg. 11th H.D. 31.03.2016, E.7580, K.3513 (obtained from sinerjimevzuat.com.tr on 11.03.2018)
[16] PEKCANITEZ (ATALAY, ÖZEKES), Textbook, p.411
[17] PEKCANITEZ, Volume II, p.1960
[18] KILIÇOĞLU, p.1179
[19] PEKCANITEZ (ATALAY, ÖZEKES), Textbook, p.410
[20] PEKCANITEZ, Volume II, p.1960
[21] PEKCANITEZ (ATALAY, ÖZEKES), Textbook, p.410
[22] PEKCANITEZ (ATALAY, ÖZEKES), Textbook, p.411; on this issue, see Judg. 15. H.D. 06.11.2017, E. 2017/ 1782 , K. 2017/3805; Judg. 15. H.D. 25.09.2017, E. 2017/ 1083 , K. 2017/ 3122 ; Judg. 15. H.D. 10.11.2016, E. 2015/ 5127 , K. 2016/ 4635 22 KURU, p.316
[23] PEKCANITEZ, Volume II, p.1959
[24] PEKCANITEZ, Volume II, p.1960
[25] See Article 59 et seq. of the Regulation on Expert Witness dated August 3, 2017 and numbered 30143. 26 See: http://bilirkisilik.adalet.gov.tr/sayfalar/bilirkisili%C4%9Fekabulevebilirkisilikbasvuru.html (date of access: 11.03.2018)
