Expert witness work and arbitration
The judge knows law, not electronics. When a lawsuit depends on whether a device failed because of its design or because of misuse, it is largely decided by an expert's report.
01The expert witness, the judge’s technical eyes
Many lawsuits depend on a technical question: whether a fire started in a poorly protected switchboard, whether a medical device failed because of its design or because of misuse, whether an installation meets what was contracted. The judge knows law, not electronics. When the decision requires special knowledge of a science or a technique, expert evidence is ordered, and a professional in the field studies the question and explains it in a report.
The expert is an auxiliary of the court: not working for either of the parties, but for the tribunal, and their duty is impartiality. At the national level, expert evidence is regulated in Articles 457 to 478 of the Código Procesal Civil y Comercial de la Nación (National Code of Civil and Commercial Procedure); each province has its own procedural code, with very similar rules.
02Court-appointed expert and party technical consultant
| Court-appointed expert (perito de oficio) | Party technical consultant (consultor técnico de parte) | |
|---|---|---|
| Who appoints them | The judge, by lot from a list of registered professionals | Each party, freely |
| Whom they serve | The tribunal: they must be impartial | The party that proposes them: they defend its technical position |
| What they do | Studies, measures, tests and submits the expert report | Attends the operations, monitors the expert’s work and may submit their own report |
| Who pays | Fees set by the judge, generally paid by the party that loses the case | The party that hired them |
To be a court-appointed expert you must register on the lists kept by the courts of each jurisdiction, with a degree and a license in the specialty.
03How an expert works
- Accepting the appointment: the designated expert accepts before the tribunal within the time limit set by the code, and may ask for an advance to cover the expenses of the expert examination.
- Studying the case file: reads the complaint, the answer and, above all, the expert questions (puntos de pericia): the specific questions that the parties and the judge put to the expert.
- Expert operations: inspections, measurements, tests, with prior notice to the parties and their consultants so that they can attend.
- Report: within the set deadline, with an explanation of the technical operations carried out and the scientific principles on which the conclusions are based.
- Clarifications and challenges: the parties may request clarifications or object to the report, and the expert must respond.
The judge is not obliged to follow the expert opinion: it is weighed according to the rules of sound critical judgment (sana crítica). But a well-founded report is very hard to set aside, and in practice it decides many trials.
04The expert report
| Part | What it contains |
|---|---|
| Heading | Case caption, court, identification and license number of the expert |
| Purpose | The expert questions, transcribed as they were proposed |
| Background | What emerges from the case file and the documentation consulted |
| Methodology and operations | What was inspected, with what instruments, calibrated when, and against which standards it was compared |
| Answers | One for each expert question, clear, well-founded and not going beyond what was asked |
| Conclusions and annexes | Summary, photographs, measurements, drawings |
An expert does not give opinions on legal questions —whether there was fault or who must pay is the judge’s job—, does not answer what was not asked and does not state what could not be verified. An opinion that knowingly departs from the truth is the crime of false testimony, which Article 275 of the Criminal Code expressly extends to experts.
05Arbitration
The parties to a contract can agree that their disputes will be resolved not by a judge but by arbitrators chosen by them: this is the arbitration agreement, regulated in Articles 1649 to 1665 of the Civil and Commercial Code. For technical disputes it has clear advantages: the arbitrators can be specialists, the procedure is faster and confidential, and the decision, the award (laudo), is binding and is enforced like a court judgment.
| Type | How it decides |
|---|---|
| Arbitration in law (arbitraje de derecho) | Applying legal rules, like a judge. It is the type presumed if nothing was agreed |
| Amiable compositeurs (amigables componedores) | According to equity, to the best of their knowledge and judgment, if the parties expressly authorized it |
Not everything can be arbitrated: the Code excludes, among others, family matters, consumer relations and labor matters. An engineer can take part as an arbitrator on a technical panel, as an expert within an arbitration or as a party to a contract with an arbitration clause. Before a trial, moreover, many jurisdictions require mandatory mediation, in which a mediator helps the parties to reach an agreement without deciding for them.
06Where it shows up in electronics
| Case | What the expert is asked |
|---|---|
| Fire in a shop | Whether the origin was electrical, at what point, and whether the installation met the regulations |
| Claim over defective equipment | Whether the failure is one of design, manufacture or use |
| Dispute over a structured cabling job | Whether what was installed meets the specification and the certification standards |
| Fraud with an energy meter | Whether the device was tampered with and how |
| Computer forensics | The content and integrity of digital devices and records |
07Activities
For a fire attributed to a power strip, write five expert questions that each party could propose.
Write the expert report for a simulated case, using the structure on this page and answering point by point.
Find out what requirements the courts of your jurisdiction set for registering on the list of electronic engineering experts.
08Common mistakes
- Giving an opinion on who is legally right. The expert answers technical questions.
- Carrying out the operations without notifying the parties. They can challenge the expert examination because they could not monitor it.
- Acting as a court-appointed expert while having a tie to one of the parties. The expert must recuse themselves.
- Agreeing to amiable-compositeur arbitration without meaning to. If it is not expressly authorized, the arbitration is in law.
09Self-assessment
What is the difference between a court-appointed expert and a technical consultant?
The court-appointed expert is designated by the judge and must be impartial; the technical consultant is proposed by a party and defends its position.
Is the judge obliged to follow the expert report?
No: it is weighed according to the rules of sound critical judgment.
What does an expert who knowingly departs from the truth risk?
Committing false testimony (Article 275 of the Criminal Code).
How does an amiable compositeur decide?
According to equity, if the parties expressly authorized it.
10Further reading
- Lino Enrique Palacio. Manual de derecho procesal civil. Abeledo Perrot (in Spanish). The chapter on expert evidence, with the complete procedure.
- Código Procesal Civil y Comercial de la Nación (National Code of Civil and Commercial Procedure). Articles 457 to 478. InfoLEG (in Spanish). The rules on expert examination at the national level.
- Roque J. Caivano. Arbitraje. Ad-Hoc (in Spanish). The reference work on arbitration in Argentina.