Forensic Examination vs. Expert Study Commissioned by a Lawyer

A lawyer often faces a fork in the road: commission an expert study on your own request, or push for the court to order an “official” forensic examination. These are two forms of evidence of very different weight — with different cost, timing and risk — and the choice between them shapes the entire line of the case. Let us work through when a private study is enough to assess the prospects of a dispute, when a court-ordered examination is unavoidable, and, above all, how to avoid devaluing a perfectly good piece of evidence by confusing the two formats.

Two tools that are easy to confuse

The most important thing to grasp at the outset: both documents are frequently prepared by the same certified forensic expert, using the same methodologies and the same laboratory base. The difference lies not in the depth of the analysis but in two things — the legal basis on which the work is performed and the procedural status the finished document will carry.

Both forms rest on the specialist Law of Ukraine “On Forensic Expert Activity” and the Ministry of Justice Instruction on the Assignment and Conduct of Forensic Examinations and Expert Studies (Order No. 53/5). The expert, the register and the methodologies are shared. But the evidentiary weight differs fundamentally, and this is what the lawyer must calculate in advance.

Forensic examination: initiated by the court or a party to the proceedings

A forensic examination is conducted only on the basis of a procedural decision:

• a court ruling (ukhvala) appointing an examination — in civil, commercial or administrative proceedings;
• in criminal proceedings — on the application of a party (prosecution or defense) to an expert or expert institution, and, where an examination is mandatory or the parties are in dispute, on the ruling of an investigating judge (slidchyi suddia).

Its key features for the lawyer:

• it exists inside open proceedings — it cannot be ordered outside of a case;
• before starting work, the expert is warned of criminal liability for a knowingly false opinion (Article 384 of the Criminal Code of Ukraine, KK) and for refusing to perform their duties (Article 385 KK); this warning is recorded in the introductory part of the document;
• the result is formalized as an expert opinion (vysnovok eksperta) — an independent procedural source of evidence.

In criminal proceedings of an economic nature, the examination is usually initiated by an investigator of the Bureau of Economic Security (BEB) or by the prosecutor, and the factual groundwork is often laid by audit materials from the State Tax Service or data from the State Financial Monitoring Service. It is precisely the warning of liability that gives the document its special weight: the expert is personally answerable to the law for the reliability of the opinion.

An expert study on request: the lawyer’s initiative

The option of conducting an expert study on a party’s application follows directly from the specialist law on forensic expert activity (Article 7-1), which allows certified experts and expert institutions to carry out expert studies on the request of individuals and legal entities outside of any proceedings.

Key features:

• the basis is a contract and an application (including a lawyer’s request), not a ruling or an application within a case;
• the expert is not warned of liability under Articles 384 and 385 KK — there are no proceedings within which such a warning would operate;
• the result is formalized as an expert study report (vysnovok ekspertnoho doslidzhennia).

In substance, scope and methodology, such a study may be no less rigorous than a forensic examination. The difference lies solely in the procedural status of the finished document.

Procedural weight and the risks of each format

Ukrainian procedure proceeds from the principle that no piece of evidence has a predetermined force: the court evaluates each document according to its inner conviction, in the totality of the evidence. Nonetheless, procedural status affects how evidence is perceived.

• A forensic examination opinion is admitted as a full-fledged expert opinion. It can be challenged, but by default it carries the weight of procedural evidence.
• An expert study report is not, in itself, an “expert opinion” in the procedural sense. It is admitted as documentary evidence (pysmovyi dokaz): the court takes it into account but retains the right to order its own examination.

The risk of an “official” repeat examination

The principal risk the lawyer must build into their strategy: even a compelling private study does not deprive the court of the right to order its own examination — an initial, additional or repeat one. The trigger is usually the opponent’s objection regarding the methodology, the completeness of the source data, or the independence of the expert engaged by the party. If the court orders its own examination and it diverges from your study in its conclusions, the private document loses its persuasive force. An out-of-court study should therefore be treated as the foundation of a position, not a guarantee of the result.

The “golden mean”: a party engaging an expert

The procedural codes provide a separate and often underrated mechanism — the party itself engages an expert already for the case:

• in civil procedure — Article 106 of the Civil Procedure Code (TsPK);
• in commercial procedure — Article 101 of the Commercial Procedure Code (HPK);
• in administrative procedure — Article 104 of the Code of Administrative Procedure (KAS);
• in criminal procedure — the right of a party (in particular the defense) to engage an expert independently (Article 243 of the Criminal Procedure Code, KPK).

In this format the expert is warned of liability under Articles 384 and 385 KK, and the document has the status of an expert opinion (drawn up at the request of a participant in the case), not merely an out-of-court study. By law such an expert has the same rights and duties as one appointed by the court. The party keeps the initiative and the speed but obtains evidence of higher weight. For civil and commercial disputes this is often the optimal route.

Cost and timing: where the difference lies

Money and time are practical arguments that frequently drive a lawyer’s choice as much as procedural weight does.

Criterion	Forensic examination	Expert study on request
Who initiates	Court, party to proceedings, investigating judge	Lawyer / party by application
Timing	Only within open proceedings	Before or in parallel with a case
Who usually pays	The party charged with costs by the court	The client, by contract, in advance
Turnaround	Depends on the institution’s queue; often longer	Controlled by the client; usually faster
Control over the questions	Questions approved by the court	Questions framed by the client
Status of the document	Expert opinion (source of evidence)	Documentary evidence weighed by the court

Exact fees and timelines depend on the institution, the complexity of the case and the volume of source documents, so citing specific figures serves no purpose — they are individual. But the pattern holds: a study on request gives the lawyer control over the pace and the questions, whereas a forensic examination offers higher status at the price of the queue and reduced flexibility.

When it makes sense to commission a study before trial

An out-of-court study is a tool of strategy and preparation, not of proving the case in court. It is worth commissioning when you need to:

• assess the prospects of a dispute before filing suit — whether there is an economic basis for the claims and what their likely size is;
• strengthen your position and support a motion — a ready study helps you frame the questions correctly for the future court-appointed expert;
• conduct pre-trial settlement — negotiations, claim-letter work, mediation, where the parties need an independent figure;
• check the opponent’s opinion before the hearing, so you can prepare questions for the expert;
• give the client an honest picture — sometimes a study shows a claim is hopeless, saving the client court costs.

In forensic economic examination practice, an early study often changes the whole line: it either dissuades a party from a weak claim or reveals grounds for demands the party never suspected.

How to admit a study as documentary evidence

An out-of-court report does not automatically “convert” into a forensic examination, but it works within proceedings as follows:

1. Admit it as documentary evidence — attach it to the claim, the response or the motion together with the documents it rests on (contracts, accounting registers, bank statements).
2. File a motion to order a forensic examination with the same or refined questions — this way you steer the subject matter of the future examination.
3. Use the report for questioning and explanations — on its basis you can put well-argued questions to the court expert or the opponent’s specialist.
4. Consider the party-engaged-expert format (Article 106 TsPK / Article 101 HPK / Article 104 KAS / Article 243 KPK) to obtain a higher-status document from the outset.

Defense strategy: a preliminary study as counter-evidence

For the defense, a private study is above all counter-evidence. If the prosecution’s opinion is built on incomplete data or flawed methodology, an alternative opinion from a qualified expert can demonstrate this and, on that basis, support a motion for a repeat examination.

What to watch when preparing such counter-evidence:

• verify your expert’s status — a current qualification in the relevant specialty (for economic studies, subclasses 11.1–11.3) and an entry in the Ministry of Justice Register of Certified Forensic Experts; a lapsed certification is itself a ground to reject the opinion;
• ensure a transparent methodology and verifiable calculations — these are the criteria by which an opinion withstands scrutiny, regardless of who commissioned it;
• stay within the limits of competence — an economic expert answers questions about the facts of accounting and the figures, not about the elements of a crime, guilt, or the lawfulness of an authority’s actions;
• study the case law in the Unified State Register of Court Decisions for similar matters, to anticipate the opponent’s typical counter-arguments.

Common mistakes lawyers make

• Confusing the names of the documents. An “expert study report” and an “expert opinion” are different kinds of evidence; motions must name them precisely.
• Expecting an out-of-court report to carry the force of a verdict. It is a strong argument, but the court will weigh it alongside other evidence and may order its own examination.
• Posing questions that are too broad or purely legal. Vague or strictly “legal” questions devalue even a sound analysis.
• Failing to provide the full set of source documents. Without them, the report will be hedged with reservations.
• Commissioning a study “on the doorstep” of the hearing. A late study can no longer influence the strategy; an early one saves money and time.

A short decision checklist

1. No case yet? Start with a study on request — assess the prospects and the sums.
2. Preparing a claim or a defense and want higher-status evidence? Engage an expert as a party (Article 106 TsPK, Article 101 HPK, Article 104 KAS, Article 243 KPK).
3. Case already in court, the question complex or contested? Move for a court-ordered forensic examination.
4. Opponent filed their own opinion? Commission a check of the methodology and prepare questions for the expert.

The right choice of form saves both time and money: sometimes a pre-trial study is enough, and sometimes only a forensic examination will yield the evidence you need. If you are unsure which form fits your situation, I invite you to a consultation — we will work through the circumstances, frame the questions correctly, and select the optimal procedural route within the law.