Once the lawsuit has been filed, the expert advice, including experts' opinions, must generally be obtained in accordance with the rules in chapter 19 of the Danish Administration of Justice Act. It is the court that primarily controls the process for obtaining expert opinions.
A request for an expert opinion must be submitted to the court and should be submitted as early as possible in the proceedings. It is often one of the parties who requests an expert opinion and typically the party who needs the statement to fulfill their burden of proof. However, it is also possible for the court to call for an expert opinion, but ultimately, an expert opinion must be requested by at least one party.
When requesting an expert's opinion, the request must state the framework for the expert's opinion. This includes what the subject of the expert's opinion is, why an expert's opinion is needed and what the expert's opinion must prove or disprove. The latter, that it must be stated what the expert's opinion must be able to prove or disprove, must be a precise specification.
After an expert's opinion has been requested by one party, the other party must be given the opportunity to comment on the request before the court decides whether or not to grant the request. In practice, the court generally accepts the request, but in some cases the request is rejected if the court believes that an expert's opinion may be superfluous.
If a decision is made to obtain an expert's opinion, the parties must exchange the questions they have for expert with each other, i.e. so that the questions from both sides are included in the report from the expert. This process is made to ensure that both parties have influence on the physical inspection of i.e. the property that is later conducted and ultimately to increase the evidential value of the report. However, it is only the party requesting the expert's opinion that is obliged to ask questions. The parties can each ask questions and do not have to agree on which questions to ask or how to phrase them, however, the parties may dispute the wording of the questions. As a rule, the court does not interfere with the questions unless the parties disagree. The court also has the option of rejecting questions if they are deemed irrelevant.
The phrasing of the questions has an impact on the expert's response, which makes the wording of the questions of great importance. Preparing the questions for the expert therefore requires thorough preparation.
Once the questions have been asked, the expert convenes the inspection, where the questions are firstly reviewed, and any clarifying questions are asked by the expert. The inspection is then carried out by the expert, which can be carried out with or without the parties present. Afterwards the expert will form an opinion.
If the opinion proves to be non-favorable, it is often difficult for the parties to obtain permission by the court to carry out a whole new inspection by a different expert. Experts might disagree, which makes it difficult to assess the weight of the different experts' opinions. It is thus easiest for the court if only one expert is used.
It is, however, possible but will require either the opinion is materially flawed, incomplete and/or unclear and the deficiencies cannot be remedied by additional questions to the original expert, or ineligibility or disqualification of the expert. The party may also argue that the original expert's professional approach is not "exclusive", as there are "several schools", and that the case concerns significant values or otherwise has far-reaching significance for the parties. This is the expanded access to a new inspection and assessment introduced by the amendment to the law in 2016.
As such, the Supreme Court of Denmark (judgement U.2019.3020 H) allowed a new experts opinion in a real estate case. As the first expert had issued a statement based on a return-based model, the Supreme Court of Denmark allowed a new expert's opinion according to a so-called Discounted Cash Flow method (DCF).
In many cases, however, it will be more appropriate to obtain the court's permission to obtain expert statements - e.g., from a technological institute or a trade association - commenting on the expert opinions. However, neither expert statements nor expert witnesses can generally be used as "counter-opinions".
Instead, the parties will often ask the court for permission to ask new or additional questions to the same expert. This will sometimes lead to a new additional inspection. Once the expert has answered the main questions and any supplementary questions, the court will schedule the final main hearing in court, and at this hearing, one or the other party will often call the expert to testify about the opinion.
It should be noted that it is even possible to get an expert opinion when only considering filing af civil lawsuit. This is called isolated evidence taking (in Danish: Isoleret bevisoptagelse) and follows the same process in court. You can then use the statement as evidence in a later court case.