Article 228 of the General Code of Procedure

In this context, a growing view suggests that the attorney who submitted the expert report is, in fact, allowed to question their own expert using leading or suggestive questions. Professor Jairo Parra Cuadros has argued that these questioning techniques are not exclusively reserved for the party challenging the report.

In response to this interpretation, Juan Camilo Duque, Litigation Partner, offers an opinion aimed at systematically examining the scope of Article 228 and its articulation with the principles of adversarial proceedings and procedural equality. To this end, he begins with a precise reconstruction of the arguments put forward by Professor Jairo Parra Cuadros, in order to assess whether the proposed reading is compatible with the meaning and purpose of the rule.

Firstly, the professor highlights that the regulation uses the expression “may,” when the regulation states that “(...) the counterpart of the person who has provided the opinion may ask assertive or suggestive questions.” According to the professor's interpretation, this expression should be understood as an enabling and non-exclusive term. From this perspective, the use of this formula does not imply that the power is reserved exclusively for the counterpart.

Firstly, the professor highlights that the rule uses the expression “may,” when it states that “the opposing party may ask assertive or suggestive questions.” According to his interpretation, this wording should be understood as enabling, not limiting. From this perspective, the use of this formula does not imply that the power is reserved exclusively for the other party.

Second, Professor Parra he argues that a restrictive interpretation, limiting this possibility solely to the representative of the party contesting the opinion, could undermine the principle of procedural equality, insofar as it would create asymmetry in the tools available for questioning the expert witness.

Finally, the professor asserts that the expert's intervention cannot be equated with a witness statement, which is intended to preserve narrative spontaneity, since the expert has already set out his technical opinion in the written report. He therefore considers that there would be no justification for restricting the use of assertive or suggestive questions by the person who presented the report.

Regarding the first argument, concerning the scope of the term “may,” I believe that Professor Parra Cuadros is mistaken in his approach, as he takes this expression out of its regulatory context to build a conclusion on it that the regulation itself does not authorize.

Article 228 of the General Code of Procedure is conceived entirely as a regulation of the exercise of contradiction of the expert opinion of the party. It is within this framework that the rule describes the powers available to those who exercise such contradiction: to provide a new opinion or to summon the expert to the hearing. And it is precisely in relation to this second alternative that the method that the opposing attorney may use to question the expert is specified.

Reducing the analysis of the rule to the term “may,” disconnecting it from the context in which it appears, leads to consequences that the professor himself would find difficult to accept. Indeed, if the authorization contained in that verb could be extended to any party regardless of their procedural role, it would also have to be concluded that the party who provided the opinion could request the expert's appearance at the hearing, since the same Article 228, in its initial part, provides that “the party against whom the opinion is adduced may request the appearance of the expert.” Under the logic proposed by the professor, that “may” would also empower the proposing party. Such a conclusion is manifestly contrary to the meaning of the rule and reveals the risk of an interpretative method that operates on isolated terms.

The contradiction of evidence, by its very nature, lies with the party against whom it is adduced. Article 228 is designed to guarantee and regulate this exercise, not to attribute symmetrical powers to both parties. Therefore, although it is true that the rule does not contain an express prohibition on the proposing attorney asking assertive or suggestive questions, this absence of prohibition does not amount to authorization, especially when the systematic context of the provision points in the opposite direction.

Professor Parra Cuadros' second argument maintains that limiting the power to ask assertive or suggestive questions exclusively to the opposing counsel would violate the principle of procedural equality. Although I understand the purpose of this objection, I believe it is based on a partial view of the problem, as it reduces the analysis of equality to the moment of the expert witness hearing, without considering the broader evidentiary context in which the expert opinion is presented.

It should be remembered that the expert opinion of the party is not neutral evidence. On the contrary, its incorporation into the process implies that it has been subject to a prior stage of preparation in which technical criteria and strategic considerations converge, with the aim of ensuring that its conclusions support the position of the party providing it. This reality creates, from the outset, an evidentiary asymmetry in favor of the proposing party: it has in-depth knowledge of the opinion, has participated in its preparation or selection, and has designed its procedural strategy around it.

It is precisely because of this structural asymmetry that it is reasonable to grant the opposing counsel more incisive investigative tools, such as assertive or leading questions. Far from undermining equality, this differentiated power seeks to compensate for the imbalance that expert evidence introduced by one party brings to the proceedings.

Allowing the party proposing the opinion to also use assertive or suggestive questions during the examination of the expert would not restore equality, but would compromise it again, since the party already enjoying an advantage derived from the preparation and alignment of the opinion with its position would also have an additional tool for suggestive questioning of the same expert who supports its theory of the case.

Consequently, procedural equality does not require absolute symmetry in interrogation techniques during the hearing. Instead, it requires balance in the overall evidentiary debate. And that balance is achieved precisely by reserving assertive or suggestive questions for those who are at a disadvantage in relation to the expert opinion.

Professor Parra Cuadros' third argument rests on the premise that, since the expert witness is not a spontaneous witness and his technical opinion has already been recorded in a written report, there would be no justification for restricting the use of assertive or suggestive questions by the person who presented the report. I do not agree with this conclusion, as the premise, although correct in itself, does not logically lead to it.

It is true that the expert opinion constitutes a prior, structured, and reasoned technical statement. However, it does not follow that the hearing fulfills a merely repetitive or simple ratification function. In this scenario, the expert does not merely reproduce a text: he explains it, develops it, clarifies it, and responds to specific questions that may reveal inconsistencies, methodological limitations, or areas of uncertainty that were not evident in the written opinion. In this sense, the hearing is a space for genuine contrast and not an extension of the previously constructed technical discourse.

Precisely for this reason, the form of questioning has a direct impact on the quality of the adversarial process. Allowing the proposing party to ask assertive or suggestive questions during their questioning is tantamount to facilitating the strategic reaffirmation of a narrative that has already been designed in line with their theory of the case. Far from subjecting the opinion to rational scrutiny, this practice would shield it from such scrutiny, turning the hearing into a forum for consolidating the technical narrative rather than a mechanism for critical verification.

The fact that the expert witness is not a spontaneous witness does not mean that their intervention lacks an interactive and dialectical dimension in the hearing. Rather, it means that the opinion already comes to the debate with a structural bias in favor of the person who provided it. And it is precisely for this reason that the design of the questioning must prevent this alignment from being intensified through suggestive techniques. The absence of spontaneity does not justify suggestion; on the contrary, it reinforces the need to reserve that tool for those who must face, at a disadvantage, an opinion that they did not prepare.