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Forensic Services in Litigation and Arbitration

In a dispute with technical evidence, the expert report weighs more than any pleading. Party-appointed expert work exists so that it says what the evidence shows, and not what a flawed examination concluded.

The lawyer's question

The expert report decides. Who checks the expert report?

When proof of a fact depends on technical knowledge, the judge is assisted by an expert (CPC, the Brazilian Code of Civil Procedure, art. 156). The judge is not bound by the expert report, but needs reasons to depart from it, taking the expert's method into account (CPC, art. 479).

Those reasons rarely come from the pleadings, because the lawyer is an interested party. They come from the party-appointed expert: expert questions that steer the examination, attendance at the expert's proceedings and an opinion, concurring or dissenting, within 15 days of the report (CPC, art. 477, § 1º).

A recurring problem

When the court-appointed expert is not qualified for the examination

The law requires the appointment of an expert specialised in the subject of the examination (CPC, art. 465). In practice, the court's register does not always separate those with the training and experience to examine a phone, a server or a system from those who merely enrolled. The result is expert reports with serious errors, written with the authority of one who assists the court, that lead the judgment astray.

There is another recurring situation: the court-appointed expert hires analysts to do the examination. The report goes out under his signature, but the analysis was done by people without the experience or the duty of impartiality that the office demands. Biased conclusions and mistaken information reach the court.

The party-appointed expert exists to show this. The opinion checks the declared method (CPC, art. 473, III), the chain of custody, each answer to the expert questions and what the data actually supports. If the expert lacks technical knowledge, the CPC provides for replacement (CPC, art. 468, I). If the matter is not clarified, a second examination (CPC, art. 480).

Where forensics comes in

Typical situations

Challenge

The official report came out against your client

Critical analysis of method, tools, chain of custody and conclusions. A dissenting technical opinion obliges the expert to clarify the points raised (CPC, art. 477, § 2º).

Expert questions

The expert has been appointed and the clock is running

There are 15 days from notice to name a party-appointed expert, submit expert questions and raise objections of impediment or bias (CPC, art. 465, § 1º). Good expert questions come from examining the evidence, not from a template. After the report, supplementary and clarifying questions follow, and the party-appointed expert attends each step of the expert's proceedings.

Authenticity

The other party filed a screenshot, an e-mail or an audio file

A screenshot is an image, and images can be edited. Authenticity is examined on the device, in the account or in the source file.

Pre-litigation

The lawsuit has not yet been filed

A prior examination shows what the evidence supports. If the evidence may disappear, or if knowing the facts may avoid the lawsuit, early production of evidence is available (CPC, art. 381, I and III).

Arbitral institutions

Arbitration: the same method, a different procedure

In disputes over IT contracts, software, data and incidents, the arbitrator or arbitral tribunal may order expert examinations, at the request of the parties or of its own motion (Lei 9.307/1996, the Brazilian Arbitration Act, art. 22). Adriano Vallim works in that evidence as expert appointed by the arbitral tribunal, in support of the arbitrators, or as party-appointed expert for one of the parties. He does not act as arbitrator. In mediation, he acts as a mediator recognised by the CNJ, Brazil's National Council of Justice.

The procedure follows the parties' agreement and the rules of the institution (Lei 9.307/1996, art. 21). Those specific rules call for particular knowledge from the lawyer and also from the expert who produces the technical evidence. The forensic method does not change: the same care as in civil, labour and criminal examinations, with procedures that ensure every examination can be reproduced.

Before the arbitration is constituted, an urgent measure to preserve evidence is sought from the courts (Lei 9.307/1996, art. 22-A).

Case work

Situations like yours have been through this laboratory

REAL CASE · ANONYMISED

The report by an expert unqualified for the examination

Challenge. In a lawsuit with decisive technical evidence, the official report was produced by an expert without the technical qualification for that examination, with serious errors that led the judge astray.

Method. Each conclusion in the report was tested against the material examined, against the method the field requires and against what the data allowed one to state.

Outcome. The technical opinion pointed out the errors one by one and showed the court what the evidence actually demonstrated.

ILLUSTRATIVE EXAMPLE

The analysis the court-appointed expert outsourced

In a lawsuit against an IT vendor, the court-appointed expert passes the analysis of the system logs to hired analysts and signs what they deliver. The report attributes the failure to the vendor, but reads the timestamps without considering that the server records in UTC. The party-appointed expert rebuilds the timeline on the copy of the logs and shows that, at the correct time, the failure begins after a change made by the client itself. The expert is called to clarify, and the court now decides with two reasoned readings before it.

Frequently asked questions
Does the court expert's report hold up?
It depends on the method and on whether the conclusion follows from the data. The technical opinion says, point by point, what holds up and what does not.
Is there time before the deadline?
The critical deadlines are the 15 days from notice of the appointment (CPC, art. 465, § 1º) and the 15 days after the report (CPC, art. 477, § 1º). Cases with a running deadline take priority. Even after a missed deadline, the opinion can still ground submissions and appeals.
When to engage the party-appointed expert: at the start of the lawsuit or only when the judge gives notice?
At the start, whenever possible. Before the complaint or the defence, the preliminary examination and the preliminary Technical Report show what the evidence supports and guide the theory. When the judge appoints the expert, naming the party-appointed expert and drafting the expert questions must happen within 15 days (CPC, art. 465, § 1º). Then come supplementary questions, attendance at the expert's proceedings and, where needed, clarifying questions and the challenge to the report.
We are going to arbitration. How does the examination work there?
The procedure is that of the institution and of the parties' agreement. The forensic method is the same as in court proceedings: preservation, hash, chain of custody and examinations that any expert can reproduce. The work is as expert of the arbitral tribunal or as party-appointed expert for one of the parties, never as arbitrator.
Does the expert act as arbitrator?
No. In arbitration, he acts as expert of the arbitral tribunal or as party-appointed expert. In mediation, as a mediator recognised by the CNJ.

See also

Judicial and Extrajudicial Expert Work →   IT Arbitration and Mediation →   For Lawyers →   WhatsApp and Chat Examination →   Practice Areas →

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