Critical analysis · LEC art. 348
Expert counter-reports for law firms: technical rebuttal of the opposing dictamen, review of methodology and applicable regulations, challenge of the expert, and ratification in court (Spanish LEC arts. 347 and 348).
Not every case needs a full report. Sometimes what counsel needs is simply to know whether the opposing report holds up — and that takes days, not weeks.
A counter-report does not produce a fresh opinion on the defect itself: it demonstrates that the conclusions of the opposing report are wrong, incomplete or methodologically unsound. It is a technical audit of someone else's document, not a second inspection of the building. That distinction is what makes it faster and cheaper than a full report, and why many firms commission one before settling on their evidential strategy.
The terms are used interchangeably and should not be. A counter-report is a party-appointed opinion rebutting another opinion inside court proceedings. A contradictory appraisal is something else entirely: the procedure under art. 38 of the Spanish Insurance Contract Act, where each side appoints an expert and, if they disagree, a third is appointed. If your matter is an insurance claim rather than litigation, the guide to contradictory appraisal and the third expert is the relevant one.
Methodology: whether the inspection was sufficient, whether test pits were opened or only a visual survey carried out, whether the testing matches what the pathology demands. Regulations: whether references to the CTE, EHE-08 or LOE are those in force at the date of the works — applying rules enacted after construction is a common and fatal error. Internal coherence: whether the conclusions actually follow from the data the report itself records, which is where most opinions fail. Quantification: whether the costing is supported by measurements and verifiable prices, or is simply a figure.
Art. 348 LEC provides that the court weighs expert evidence «according to the rules of sound judgment» (sana crítica). There is no fixed evidential tariff: the judge is not bound to follow any report. In practice this means an opinion does not win by asserting more forcefully, but by being verifiable. An effective counter-report does not attack the opposing expert personally; it shows, from that expert's own document, that the conclusions are not supported by what he himself measured. Where a judge cannot rely on one report, he credits the one that demonstrates rigour.
Sometimes the flaw lies not in the method but in who signed it. Arts. 343 and 344 LEC allow a party-appointed expert to be challenged — for links to the party, an interest in the outcome, or lacking qualifications appropriate to the subject matter — and art. 124 LEC governs recusal of a court-appointed expert. A challenge does not strike the report out, but the court weighs it when assessing the evidence. Verifying whether the signatory is actually accredited in the specific discipline at issue is a cheap check that occasionally decides the case.
Procedural timing governs everything. Art. 336 LEC requires expert reports to be filed with the claim or the defence; art. 337 allows them to be announced and filed later, before the preliminary hearing; and art. 338 admits reports whose necessity arises from what the other side has pleaded — the typical route for a counter-report. In practice, 10 to 20 working days elapse between receipt of the report to be rebutted and delivery, compressible where the hearing date is close. Tell us the procedural deadline at first contact: it shapes the scope more than any other factor.
Where the subject matter of the opinion exceeds the signing expert's accredited competence, the relevant section is written by a specialist in that field, and their authorship is stated in the report. The expert panel lists the disciplines in which this applies and the credentials required in each case.
Free initial consultation. Tell us the procedural deadline and we will tell you which option fits.