I. Background
Courts consult opinions and conclusions of expert witnesses to render a well-elaborated judgment in resolving a dispute. They need experts who will identify the facts and details and provide views on matters within their expertise.
In this article, we will provide an overview as to the following subjects: lawsuits where submittal of an expert opinion is required under Turkish laws; quality of evidence of an expert report and its binding nature in terms of criminal, civil, and administrative procedures; the subjects needed to be covered in an expert report; and possible methodology to be followed by law firms to appreciate technical issues in an expert report.
II. Evidential and Binding Quality of an Expert Report under Turkish Laws
1) Assessments on Evidential Quality of an Expert Report and Lawsuits Where Submittal of an Expert Report is Required under Criminal Law
Article 63 of the Criminal Procedure Code no. 5271 (“Criminal Procedure”) states that when a criminal case requires scientific, technical, or other specialized knowledge, an expert witness or a panel of expert witnesses may be engaged by the Public Prosecutor at the investigation stage and by the court at the prosecution stage. The same article also stipulates that an expert’s opinion cannot be used for disputes that can be resolved with general knowledge or experience or the necessary legal knowledge possessed by judges.
Expert reports are not binding for the Public Prosecutor or the Court in criminal cases where they would be assessed like any other evidence. The Court of Cassation highlights that expert reports are not binding for courts since they are just opinion evidence to evaluate empirical evidence.
2) Assessments on Evidential Quality of an Expert Report and Lawsuits Where Submittal of an Expert Report is Required under Civil and Administrative Litigation
Under Article 266 of the Code of Civil Procedure no. 6100 (“Code of Civil Procedure”), courts shall render a decision (by themselves or upon request by one of the parties) to consult an expert’s vote or opinion if litigation requires scientific, technical, or other specialized knowledge besides laws. However, an expert’s opinion cannot be used for disputes that can be resolved with general knowledge or experience or the necessary legal knowledge possessed by judges. Expert reports constitute opinion evidence in civil litigation, as in the case of criminal litigation; therefore, they can only be consulted along with other evidence.
An expert’s opinion is used in civil or criminal litigation and administrative litigation. As per Article 31 of the Code of Administrative Procedure no 2577 (“Administrative Procedure”), the Code of Civil Procedure shall be applicable in the procedures to be followed while drafting expert reports. As stated earlier, the Code of Civil Procedure allows courts to decide (ex officio or upon request by one of the parties) to consult an expert’s opinion if the resolution of a dispute requires scientific, technical, or other specialized knowledge besides laws.
III. Subjects to be Necessarily Included in an Expert Report
Article 55 of Expertise Regulation, published in the Official Gazette dated 3 August 2017 (“Expertise Regulation”), prescribes the subjects included in an expert report. Accordingly, an expert report must consist of the following details: the authorizing entity; the file number; the information about the disputing parties; the date and period of the expert’s engagement; the subject of research; the material facts observed and inspected by the expert; the methodology adopted for the inspection, the report’s scientific and technical basis; a justified conclusion chapter; the report’s date of issuance; if the expert is a natural person, their name & surname, title, registration number, and signature; if the expert is a legal entity, its business title, the name & surname of its legal representative, and the name & surname, registration number, and signature of the natural person that has written the report on behalf of the legal entity.
Article 55/2 of the abovementioned Expertise Regulation also stipulates that several experts assigned to the case render divergent opinions, each of their views shall be reflected in expert reports. They can also submit their views to the court in separate pieces.
Under Article 55/3 of the Expertise Regulation, an expert report must include any chart, map, sketch, photograph, table, and other records and documents that enable material issues under investigation to be enlightened and the results to be figured out.
Article 55/4 of the Expertise Regulation prohibits experts from expressing their opinions of the case in their reports and delivery before the court.
IV. Methods Available to Law Firms to Figure Out Technical Issues in an Expert Report
1) Gathering Information from the Relevant Departments of a Client
Law firms can request support from the relevant departments of the client to form a correct judgment about technical issues in an expert report. This method is helpful since the appropriate client teams know about the course of events that have led to the dispute; therefore, they can help understand the relevant scientific and technical matters.
2) Resort to Expert Review
An expert report refers to a study written and delivered by an expert witness upon request by a disputing party when litigation requires scientific, technical, or specialized knowledge. Both Code of Civil Procedure and Code of Criminal Procedure consider “an expert’s opinion” as opinion evidence.
Article 293 of the Code of Civil Procedure stipulates that a party in a dispute can receive a scientific opinion for their case; however, they are not allowed to demand additional time for this reason only.
Moreover, Article 67/6 of Code of Criminal Procedure sets out that the public prosecutor, the party in the dispute, the attorney, the suspect, or the defendant, the defense counsel, or the legal representative shall resort to consulting the expert review so that the matter of dispute to be enlightened, inform the expert report to be written, or understand the final expert report. However, demand for additional time for only this reason is not allowed under the Code of Civil Procedure.
If judicial authorities ask for an expert report from experts, the expert opinion submitted by the parties in the dispute would inevitably affect the views and statements of these experts. Moreover, an expert’s opinion acquired by a litigating party before their case is brought to court constitutes the basis of a potential trial and supports their claims.
3) Review of Legislation that Regulates Technical Matters
As stated above, if a dispute resolution requires scientific, technical, or specialized knowledge, the parties can ask for an expert report. However, export reports should be reviewed by the applicable legislation in which relevant technical matters are regulated.
For instance, export reports drafted about malpractice disputes should be reviewed by health laws, whereas those on zoning disputes require the review of legislation on zoning.
Thus, we recommend the provision of professional support from an experienced team in the relevant technical and legal field (e.g., occupational health and safety expert, architect, graphologist) to understand the technical and legal background scrutinized in an expert report under the applicable legislation and to monitor the proceeding effectively.
V. Why It Is Better to Consult an ALSP to Review an Expert Report
To clarify material elements of a dispute, it is crucial to manage the process efficiently through experienced professionals who will guide judicial authorities and experts on making their views.
ALSPs recruit technical and legal experts that will ensure efficient management of the process before and after issuing an expert report, which also minimizes the costs incurred by the parties in dispute and their attorneys. ALSPs’ agile and competent teams and solution-oriented structure optimize this process while maximizing the possibility of achieving desired outcomes.