Publicly Appointed and Sworn Experts in Civil and Structural Engineering: Outdated Role or Key Pillar of the Legal System

Abstract

In construction conflicts, disputing parties provide a large number of technical documents to the court. Judges, who are deciding the case, have excellent legal skills but normally less technical knowledge. In many construction disputes, judges would not be able to render a fair verdict without the expertise of specialized experts. Therefore, qualified experts are a decisive factor for the functionality of the legal system. In Germany, over decades, publicly appointed and sworn experts played a key role in advising German judges in technical issues. Their professional quality has been secured by public law bodies (such as engineering chambers, chambers of commerce and industry, or chambers of crafts) that promoted public trust in the experts’ services. In 2009, European legislation obliged Germany to adjust this system. As a result, the exclusive role of chambers in appointing experts expired and independent certification bodies may appoint experts as well. Those experts shall be treated legally equal with publicly appointed and sworn experts. This paper focuses on the importance of civil and structural engineering experts for construction disputes. The authors explain the German court system and analyze the two systems of appointing civil and structural engineering experts. Furthermore, they examine the impact on lawsuits and the public confidence in experts’ quality. They use literature review and analysis of relevant jurisdictions. The conclusion is that Germany lost a proved appointing system that, for decades, ensured excellent quality of civil and structural engineering experts as crucial assistance for judges in construction disputes.