The interesting thing about comparative law is that it allows us to question those fundamental ideas that we commonly take for granted.

The common belief is that France has an inquisitorial system. In fact, this is true with the administrative law and in criminal law the system is mainly inquisitorial during the pre-trial procedure.

In civil procedure, the system is accusatorial and to better understand the role of the expert (II) it is important to give a brief outline of the civil procedure (I).

During the XVIth Century, the rules of civil procedure were codified. There were adversarial in nature and extremely formalised. Parties could win or lose an action as a result of their ability to manipulate the rules of procedure.

Slowly, the French civil procedure has moved from this accusatorial system to a system where the parties still keep control of the cause and the object of the action but at the same time a judge has been granted important powers to ensure that pre-trial procedure is carried out effectively. This judge is known as the juge de la mise en état (preparatory judge).

In an ordinary civil court like the Tribunal de Grande Instance (T.G.I) an action is started with a written document, an assignation, served on the defendant by an huissier[1]. The defendant must submit a written reply and, by this means, each point in issue between the parties is reflected in the written pleadings - conclusions. On this basis, the parties determine the matters which have to be adjudicated upon.

At this stage, the court is not involved and in fact the parties can continue to exchange written pleadings for up to four months from the service of the assignation and with luck they will reach a settlement.

One of the parties (usually the pursuer) must submit a copy of the assignation to the clerk of the Court within four months of the writ being served.

The Président of the court will call the parties' avocats to a pre-trial review before the Président of the division to which the matter has been assigned. This hearing , which usually takes place within two months, enables the divisional Président to assess the state of readiness of the case.

If the case is ready to proceed to trial, the Président will set the matter down for trial, which may take place the same day. In practice this simplified procedure is used only where the case is simple or where the parties have already exchanged pleadings and the documents on which they will be relying.

If the parties have started such exchanges but have not yet completed them, the divisional Président may decide to give them time for the exchanges to be completed and for a further pre-trial review (conférence). If at that stage the case is ready to proceed to trial, a date will be set down.

All cases which in the opinion of the divisional Président are not at the time of the audience de l'appel des causes ready to be tried, will proceed to instruction under the control of the judge acting as juge de la mise en état (preparatory judge).

The juge de la mise en état has the role of ensuring that the pre-trial procedure is properly carried out, (that prompt exchange of the pleadings and documents occurs by fixing time-limits according to the nature, complexity and urgency of the litigation.). He also conducts the enquiry. His powers are important but the way he exercises these powers varies greatly with the individual.

During the preparatory stage either party can ask the judge to order mesures d’instruction (investigative measures)[2] within the limits of the claims of the parties but cannot require the judge to carry them out. The judge can order a mesure d’instruction even against the will of the parties.

The judge must take into consideration whether the investigation will be useful and if it will have any influence on the solution of the case. The effect of long delay and unwarranted expenses must also be considered. The judge is likely to order an investigation when he feels he does not have enough information

To help him with the investigation, the juge de la mise en état can appoint an expert.

- the decree of 17^th December 1973, now incorporated in the Nouveau Code de Procedure Civile (NCPC), which provides for the general regulation of all the mesures d’instructions exécutées par un technicien

- the law of 29 June 1971 and the decree of 31 December 1974 concerning the experts.

Any investigative measures can be requested at any stage of the procedure (first instance, appeal, interlocutory matter...) but in most cases, it is the juge de la mise en état who will appoint an expert.The parties can also appoint an expert if they require an expert’s opinion but his report will not be given the same wight by the Court.

Article 232 NCPC provides that the judge may appoint “any person of his choice” . The court is quite free in the choice of the expert but either party can challenge the appointment by what is called une demande de récusation. The grounds on which an expert may be challenged are the same as those for a judge.

To help the judge in his choice, lists of sworn[3] experts (created by the law of 29 June 1971) have been established from which the judge can choose. There is one national list (the list of the Cour de cassation[4]) and one list for each Cour d’appel[5]. It is possible to be listed on both the national and a local list which must be the expert’s home or professional address. In 1994, there were 20 250 experts in France[6].

No formal qualification is required for one’s name to be entered on a list. The applicant must be engaged in the profession or an activity connected with the speciality, for a sufficient time. He must have “practised that profession or activity in conditions that confer sufficient expertise”[7].

There is an upper age limit of seventy years to being accepted on to the lists and, in theory, there is no lower age limit. Between 1944 and 1975 listed experts had to be French nationals. This is no longer the case but foreign nationals are a rarity (about 10 at the moment).

The expert is a known professional in his field and chosen for that reason. There is no body of professional experts; one is not expert by profession.

The appointment order defines the exact scope of the investigation. Article 237 obliges the expert to carry out his investigation “avec conscience, objectivité et impartialité” (conscientiously with impartiality and objectivity) but the expert must confine his attention to the points raised in the terms of reference. The expert may consult another expert provided the latter expertise is in a different field from his own. Such person is generally termed a sapiteur.

- a constatation is a process whereby a person is charged with confirming a certain fact;
- a consultation is where a person investigates a purely technical and non-complex question;
- an expertise is used in other situations where clarification is still required.

In practice, judges continue to have wide recourse to expertises even though they should do so only in respect of complex investigations for which a constatation or consultation are insufficient (NCPC art. 263).

If the expert has any problem in conducting the investigation, (for example a party does not co-operate) he must report this to the judge. The expert should perform most of his functions before the two parties or communicate them the results of his finding.

The judge cannot entrust the expert with reconciling the parties (art. 240). Before 1973, the judge could entrust the expert in this respect but the NCPC has confirmed conciliation as being a duty of the judge.

The expert must not venture an opinion on the legal points in the case[8] and the judge is not bound to accept the findings of the expert (art. 246). The expert must adhere to any fixed timetable set by the judge but delays can be allowed.

Article 273 provides that the expert must keep the judge informed of the development of the investigation but in practice the expert only informs the judge when his work does not advance according to plan.

The costs of the expertise are usually paid initially by the party who requested it, or jointly by the parties in such proportions as the judge determines (art. 269 NCPC). These costs will eventually be borne by the party paying the costs of the actions; this is usually the loser.

The expert’s fees are fixed by the judge usually by fixing a sum for each mission plus disbursements. The expert cannot cease acting because he is concerned that he will not be paid but the expert does not need to start work until the parties have made an advance payment to the court which should be calculated as nearly as possible to the final fee.

When the investigation is completed, a written report is lodged with the court and communicated to the parties. The report has to mention the facts found by the expert and his opinion on the matters submitted to him unless the parties themselves ask him to deal with other matters (art.238 § 2).

The expert must not venture an opinion on the legal points in the case and the judge is not bound to accept the findings of the expert (art. 246). Only the judge is allowed to decide as to the law applicable.

In practice, the expert usually report in writing. It is essential for a report to be signed. If there is more than one expert they must prepare a common report in which, if their opinions differ, each indicates his own opinion.

In France, there is no single-event or trial as understood by common-law lawyers. Instead, there is a succession of relatively short appearances at which the parties present the issues and evidence in a piecemeal fashion. There is no use of civil jury either.

The expert’s report will be presented orally or in writing to the trial court (art. 282). In practice, the expert usually reports in writing, and the court normally accepts his conclusions.

As the expert is chosen by the judge, he is neutral and independent from the parties so there is no need for cross-examination like in Britain. The expert is not a witness but an auxiliaire de justice.

The professional liability of the expert is not regulated by any specific or civil text. It is not a contractual responsibility. The expert is answerable for all his faults not only intentional or serious ones. He is liable also for simple neglect or error.

(M) Chapman, The Expert in France in Arbitration 1995 Vol.61(4) p.264-268
(J) Godard, Fact Finding: A French Perspective in The Option in Litigating in Europe (1996)
Ngwasiri, “some problems of Expertise in French Civil Proceedings” Civ. Jus.Quar. (1989) p. 168
Beardsley, “proof of Fact in French Civil Procedure” Amer. J. Comp. Law (1986) p.465
(T) Moussa, Dictionnaire juridique expertis matières civile et pénale (1988).

This talk was given at
Forensic Engineering Course
University of Glasgow
Wednesday 9 April 1997

[1] As a court officer, the huissier is responsible for the service of process, execution of judgements and maintenance of order at hearings.
[2] Art. 143 NCPC: “The facts upon which the resolution of the suit depends, may, at the request of the parties or on his own initiative, be the subject of any order of investigation which is legally permissible”.
[3] On first being listed, the expert must make an oath “d’apporter leur concours à la justice, d’accomplir leur mission, de faire leur rapport et de donner leur avis en leur honneur et en leur conscience...” (art.20 D.31 December 1974).
[4] The Cour de cassation is the supreme court of the ordre judiciaire. It is a court of final appeal on questions of law.
[5] There are 33 Cour d’appel in France.
[6] 450 for the Cour de cassation and 19 800 for the Cour d’appel.
For information, it is possible to contact the
   - Compagnie des experts auprès du Comité national français de la Chambre Internationale de
     Commerce 9 boulevard Malesherbes 75008 Paris Tel.: (33) 42.65.12.12.66.
   - or directly the President of this comittee, Mr Brisac: Tel. (33) 1.46.33.37.58
[7] art.2 §5 décret 31th December 1974.
[8] Art.   238 “il ne doit jamais porter d’appréciation d’ordre juridique.