Why are expert opinions commissioned – and why are they so important?
In many commercial disputes, the outcome of the proceedings hinges on technical, scientific or sometimes economic questions of detail: Was a machine defective? Is an intermediate product faulty? Is there a causal link between a product and a loss? How is damage calculated in business terms? A judge cannot, by nature, answer these questions alone. Courts rely on judicial expert witnesses – ideally highly specialised professionals. Their opinions often shape the decision more than pages of legal argument. Understanding the legal framework governing expert witnesses is the job of litigation counsel: to steer the selection of the expert and, where necessary, to challenge the content.
What does a court-appointed expert opinion cost?
In Germany, the remuneration of court-appointed expert witnesses is governed in principle by the Law on Remuneration and Compensation in the Justice System (JVEG). This statute regulates in particular the hourly rates by fee group (§§ 8 et seq. JVEG), reimbursement of expenses (travel costs, laboratory work, samples, assistants), and billing based on actual time spent. In many standard cases – such as straightforward technical or medical opinions – remuneration falls within these statutory rates. For the parties this means: expert costs are, at least in terms of magnitude, foreseeable, even if the precise time required varies. In complex commercial disputes, however, the statutory JVEG hourly rate is not always in line with the market. Highly specialised expert witnesses – in certain niches of food technology, IT forensics or international accounting, for example – in practice charge market rates above JVEG levels. The cost of a court expert opinion can quickly run into five or even six figures in complex proceedings. These costs are legally relevant as litigation costs: they form part of the costs of the dispute and are ultimately allocated in accordance with the outcome.
How binding is a court expert opinion on the court?
The legal answer is clear: an expert opinion does not bind the court. Under § 286 of the Code of Civil Procedure (ZPO), the court decides on the basis of its free conviction drawn from the overall result of the proceedings. An expert opinion is one item of evidence among several – alongside witness testimony, documents, circumstantial evidence and the parties’ submissions. The court may adopt the opinion only if it is internally consistent, methodologically sound, compatible with the underlying facts and in harmony with the rest of the case material.
Clear as the legal position is, practice is often sobering: once an opinion has been obtained, it exerts – especially in technically complex proceedings – an enormous de facto influence. Judges are rarely specialists in the particular scientific or technical field at issue. A coherently argued expert witness with clear, plausible findings strongly shapes judicial conviction. All the more important, therefore, is subject-matter expertise when scrutinising the opinion.
What to do with a “wrong” expert opinion?
The first step is to look at the court’s order transmitting the opinion. Courts frequently set a deadline for submissions and note that objections and supplementary questions may be precluded after the deadline (§ 411(4) ZPO). It is now essential to review the opinion thoroughly – and with the necessary subject-matter expertise (obtained externally if required) – and to formulate objections in writing, specifically and within the deadline; these should address not only the conclusion but also the underlying facts and methodology. Grounds for challenge may include incomplete factual assumptions, as well as methodological shortcomings and legal conclusions that are, in principle, not for the expert witness to draw but exclusively for the court. Supplementary questions under § 411(3) ZPO allow ambiguities to be resolved or particular aspects to be explored in greater depth. Clear, concise formulations that the court can adopt directly are important. An oral hearing may be applied for. Where doubts are so serious that the existing opinion can no longer support the court’s findings, § 412 ZPO comes into play: the court may commission a further opinion, either from a different expert witness or – more rarely – from a panel of experts.
Conclusion
Expert opinions are far more than a mere item of evidence in commercial proceedings – they are frequently the decisive instrument in litigation. A party that remains passive and accepts the opinion without scrutiny risks a decision based on incorrect foundations. Professional litigation therefore means: reviewing the opinion with the necessary subject-matter expertise, formulating objections in a structured and timely manner, and – where necessary – consistently pursuing a second opinion under § 412 ZPO. The cost of a qualified counter-opinion is almost always money well spent compared to the value in dispute and the litigation risk.
