📝Experts et procédure : l'amicus curiae (Experts and procedure: the amicus curiae)

► Référence complète : M.-A. Frison-Roche, "Experts et procédure : l'amicus curiae" ("Experts and procedure: the amicus curiae"), Revue de droit d'Assas, october 2012, pp. 91-94

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📝read the article (in French)

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► English Summary of the article: A recent thesis has argued that amicus curiae is becoming a common principle of Procedural Law. This shows its importance. The fact that the mechanism, the character, is designated by a Latin formula leads us to suspect that something is being concealed that legal technique ordinarily forbids: it is the legal expert and the party's expert, which is what the amicus curiae most often is, either one or the other, or both at the same time.

Therefore, removing the prudish cloak of Latin, it is these two difficulties that must be addressed. If we exclude the legal expert, it is because "jura novit curia" ("the court knows Law". But this rule, which recalls the principle that "no one is supposed to be ignorant of the law", merely indicates a sharing of the burden of evoking facts and Law between the parties and the judge (Motulsky) and not a presumption of knowledge. Consequently, the modest, and therefore self-confident, judge has no reason, either psychological or legal, to shy away from a legal expertise.

As for the party's expert, or the judge's expert who is highly influenced by a party, a profession, a social group, in short, a judge's expert who is in fact an expert held by a party, this can only be a problem if the judge cannot keep his distance from this expert whose opinion is biased by the weight of the party.

But first of all, any opinion is biased. Whether it is given in bad faith or good faith, it is biased, and in rhetoric we know that an opinion biased in good faith is more dangerous than a bought opinion, because the latter is known to be twisted by self-interest. In this respect, the person who listens to it, the judge, knows the difference.

Indeed, the legal system that recognises the party's expert and the amicus curiae, i.e. North American Law or European Union Law, draws the necessary procedural consequence: they include the party's expert opinion in the adversarial debate.

It is the principle of adversarial debate, the principle of principles in the conduct of proceedings, that makes amicus curiae acceptable and welcome, since it provides the judge with a scientific input that the latter does not have.

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