Foreword
There several years ago, a judge, via the Court of Appeal of Casablanca, handed me a file related to a mechanical item for expertising (Sprocket for winch awnings) that I had re-addressed to the Court, for not being a specialist of work asked for. The Judge, in turn, had sent back the file insisting politely to have my opinion on the considered case of which the judicial investigation exceeded time of twenty years without reaching any conclusion. This article discusses, through the record just mentioned and others, some weaknesses that hinder the development of judicial expertises in Morocco and looks at ways to rectify certain shortcomings in the light of what is happening in other countries ahead of us in the field.
When there is failure of a regulator
In the mentioned case, two small craft businesses objected about the “ownership” of the “discovery” of a mechanical part (see above). Persons having commenced hostilities had died and, when I handled the case, the dispute at Court was extended through their children even though the tribunal wasn’t in a position for giving reason to one or the other opponents. Flipping the record of the case, and after talking separately with each interested in their workshops, I had doubts that the father of one, and the father of the other, both illiterates, could have had any qualification to invent the mechanical part they fought for before Court. Nevertheless, each of the artisans had received in his time a “certificate of discovery” in good standing issued to both applicants, a few weeks apart, by the parent organization of today OMPIC (Office Marocain de la Propriété Industrielle et Commerciale), something I had have checked in the same archives of this organization. It is this anomaly that probably no one has reported previously to the court that resulted in the blocking of the above file for twenty two years! Both sides claimed, based on exactly the same official document (in two original copies, each bearing the name of a different beneficiary) though irregular, the same title to invention of a Sprocket that both of the opponents have simply copied from a drawing on an item imported from abroad!
Dependence of judicial expertise on the general environment
Conditions that made the judicial expertise faulty, and those very assessments, are very numerous and it would take more than a book to review them all. Some cases are more malicious than others often for various reasons. In the example mentioned above, experts appointed by judges before me had to give an opinion on the matter. It is likely that they considered taboo to touch the “reputation” of the parent body then (now since OMPIC) so preventing that Court obtains a solution in time. In another case, when the tribunal did investigate the case of wheat imported from India by the Benzaidia Group, which caused quite a stir back in 2000, the Supreme Court held that an expert from LPEE (Laboratoire Public d’Essais et d’Etudes), a time handling the case, was guilty of falsifying data in his expert work and was not himself sufficiently scientifically equipped to undertake such an expertise! With all this, the “expert” in question was not overly concerned and no hindrance has been made by the court against the continuation of its business. Examples archived in the courts of the Kingdom and, for some, duly documented by myself, that relate to judicial expertises that are deceptive, forged, insufficient and / or suffer from other vicissitudes abound. The reasons that could be the cause are numerous and varied so to go under one section of this blog. But the fees awarded by a court to the expert for his work may, to our judgment, be revealed as a potential source of great disturbance in this type of work. We are going to look at this element more carefully.
The price of expertise
In the United States, where competition is everywhere including the field of judicial expertises, the price paid to the expert does not vary significantly depending on whether the work is requested by a court or by an individual. Practices are devoted that according to the price range, with a “floor price” and a “ceiling price” for a given expertise in a specific field, the Court usually pay for the “floor price” if the tribunal is asking for an expertise. Also, the rule allows the customer to choose an expert witness and work with him. This saves time for everyone and avoids misunderstandings that can be scary, especially for the expert. The opposing party may, if it does not agree with the findings of the first expertise, ask for a second assessment. The judge has discretion to require, if he wishes, the experts to come to the tribunal and present their arguments in public. To go back to our subject, there is the case, for example, of the expertise of the so-called “adulterated” beer which led the deputy Zahraoui in prison in the nineties of the past century. The Court of Appeal of Casablanca asked me to study the beer in question and say whether or not it contained alcohol and how much. The urgency on one side, and the lack of a Moroccan regulations on beer on the other, forced me to buy copy of the appropriate regulation (which applied in those days in the case of Bulgaria, the country of origin of beer) from Netherlands and, to begin work immediately, pending delivery of the book, additional charges to receive “on the spot” a copy of the book by fax. We had to examine hundreds of bottles (referring to the batch of about one million units supplied by Mr. Zahraoui) using, with respect to alcohol, two separate analyzing methods to achieve compelling results and allow justice to do its work in serenity. Regarding the dosage of alcohol, we were dependent on the distillation step, real puzzle, considering that foam beer quickly which requires very patient. In summary, the laboratory was obliged to mobilize all its technicians days and part of nights (this was during the month of Ramadan) on analysis of the beer to the exclusion of any other work operations. After a month, the bill was relatively heavy for us. After reducing the note to the minimum possible, she stood still at two hundred thousand dirhams and I have received (as full and final payment), after more than two years of waiting, a little over twenty thousand dirhams*.
Comment and Conclusion
Once an expert is sworn in here, a judge of the court may nominate him in an expertise in his skills. Usually, a sum of money, at the discretion of the judge, paid by the applicant, lodged at the Registry, is temporarily assigned to the expertise to be done. One time his report terminated, and after consent of the judge, the expert can withdraw the money. If the expert considers that the sum is inadequate, he can ask the judge for a higher fee. He therefore must justify its request with invoices that he had to pay to carry the expertise to its term. In summary, the expert must do the work, write a report to withdraw fees the Court granted him for the task and, if necessary make a new report to justify fees fairer to him. He should, and the judge with him, do double work. That said, the judge, often a layman with work of the expert, will probably have to revert to a third-party opinion before deciding on the “right price”, which can take weeks or months to see years. But in the end, it is the applicant required to pay the sum in question unless the judgment of the Court is not in his favor in which case, it happens that the defendant waives simply to make the payment in question without the tribunal being able to force him for it. Looked at more closely, our system of compensation of expertise acts seem particularly vague and far from relevant next to what is practiced in the USA for example. Of course there is the sacrosanct issue that expertise be accessible to all levels of individuals! But this problem is analogous to that of accessibility to a lawyer. Precisely, because there is no need to seek the opinion of the Court to choose a lawyer, it seems equally logical to allow a litigant to choose the expert to whom he wants to submit a file to expertise.
* : The reference to the expertise of beer on the occasion of this article is to illustrate the discussion on the topic of judicial expertises in general without any other claim of any kind whatsoever.
