Evidence in civil trials
Have you ever been involved in a civil dispute? Are you wondering how you can prove a certain situation in court? Understanding means of proof is essential for anyone facing a contractual or other type of misunderstanding that could result in a court dispute.
Find out in this article:
What is evidence?
Imagine evidence as pieces of a puzzle that, when correctly assembled, reconstruct the complete picture of an event or factual situation. In legal terms, evidence are the means through which the parties in a civil case (the claimant and the defendant) attempt to convince the court of the truth of their claims.
The judge is always impartial regarding the situation between the parties, as they were not personally present at the circumstances and facts that led to the dispute: they do not know the content of pre-contractual negotiations, as they were not present when the parties signed the contract with unclear terms; they were not present when the defendant damaged the claimant's property; they were not present at the time of the traffic accident; they do not know how the claimant performed their work duties, which ultimately led to their disciplinary dismissal.
Thus, the parties involved need means of proof to demonstrate to the judge past facts that they do not personally know. The ultimate goal of administering evidence is for the judge to be able to confidently determine what actually happened between the parties (the facts), and then render the judgment based on the proven factual situation.
The role of evidence in civil trials.
The main purpose of any civil trial is to discover the truth and achieve justice (i.e., applying the law to the factual situation that led to the dispute). The judge is neutral and impartial. They are not a witness to the events that led to the trial. Evidence is what helps the judge understand the situation and become convinced of the truthfulness of each party's claims. The stronger and more convincing the evidence, the higher the chances of obtaining a favorable ruling.
Evidence is the tool through which the court can reconstruct the facts and determine what really happened. In civil proceedings, the burden of proof lies with each party. Therefore, each party in a civil case must prove the claims they make in their statement of claim or defense (order court submissions).
Article 249: Burden of proof – The party making a claim during the trial must prove it, except in cases expressly provided by law.
For example, if you claim that the property where the defendant resides is yours and you are asserting a claim over it, you will need to present evidence to demonstrate this. If you accuse someone of causing you harm, you must provide evidence to support this claim – the existence of the damage, its value, the causal connection between the defendant's actions and the harm caused, etc.
Without evidence, the judge would have to rely on speculation and assumptions, which would lead to arbitrary and unjust decisions. Without evidence, the court cannot rule in your favor because it does not know the facts, even if you are personally convinced that you are telling the truth.
Moreover, evidence ensures a balance between the parties. Both parties have the right to propose evidence and challenge the evidence proposed by the other party. This prevents abuse and ensures that each party has the opportunity to present their point of view.
What types of evidence exist in civil proceedings?
The Civil Procedure Code provides a variety of means of proof that allow the parties to substantiate their claims before the courts. In principle, the rules set forth in the Civil Procedure Code apply to all civil cases, regardless of their subject (real estate, labor disputes, neighborhood disputes, debt recovery, contractual disputes, insolvency, etc.).
Special laws from various fields may provide additional means of proof or specific rules regarding their administration. For example, minutes from various committees can serve as means of proof.
The most commonly used evidence in civil cases are:
Documents
Documents are written materials that can be presented by one of the parties. Documents include: contracts signed by the parties (download contract templates), invoices, receipts, emails, text messages, bank statements, etc.
Documents are among the most common and important forms of evidence in civil proceedings, as they record the parties' intentions in a way that is difficult to alter. Most of the time, documents cannot be changed without leaving traces, such as erasures or marks that reveal unauthorized modifications.
Examples of documents
Contracts – Contracts signed between the parties, including their annexes or addenda (download addendum for contract extension). Certain legal procedures, such as the payment order for debt recovery, can only be effectively used if there are supporting documents.
Official documents – Birth certificates, identity documents, marriage certificates, property titles.
Invoices and receipts – To prove the payment of a debt or the existence of a transaction. In a dispute regarding an unpaid invoice, the invoice itself constitutes an important piece of evidence.
Correspondence – Emails, letters, or written messages between the parties that can show their intentions or agreements.
Foreign authority rulings or documents – For example, court rulings, certificates, or other documents issued by authorities from other countries.
Bank statements – To prove money transfers or financial transactions.
Accounting documents – Registers, balance sheets, financial reports.
How to challenge a document?
The authenticity of a document can be contested, but the difficulty of this process depends on the type of document: private signature, authentic signature, or, more recently, electronically signed.
Private signature documents
A private signature refers to a signature applied to a document by a person without the involvement of a notary public or another competent authority. It can be made by either party by hand and is sufficient to produce binding effects for the respective person.
Handwritten signatures are commonly used in contracts, invoices, or other documents exchanged between parties and can be contested by presenting other forms of evidence. For example, a party claiming that a signature on a contract is false may request a forensic handwriting analysis to verify its authenticity.
Authentic documents
An authentic signature is one applied to a document in the presence of a notary public or another authorized authority, which certifies the identity of the signer and that they have assumed the content of the document. This type of signature benefits from a stronger presumption of authenticity than a handwritten signature and is more difficult to challenge in court.
If the authenticity of an authentic signature is to be contested, a special procedure for challenging the document as falsified must be followed in order to prove the violation of the authentication procedures by the issuing authority.
Examples of documents with authentic signatures include authentic wills, notarial powers of attorney, or contracts notarized by a notary. There are also other documents that hold probative force until proven to be falsified, such as minutes issued by public authorities to establish certain facts or apply sanctions.
Electronic signatures
An electronic signature is a special type of signature applied to a document in electronic format, with the purpose of ensuring its integrity and confirming that the signer has consented to its content. However, electronic signatures can also be contested, and the process of contesting depends on the type of electronic signature used and the circumstances in which it was applied.
There are three main types of electronic signatures: simple electronic signature, advanced electronic signature, and qualified electronic signature. Each has a different level of security and reliability. The effects of electronic signatures can be similar to private signature documents or authentic documents, depending on the type of signature.
The qualified electronic signature, based on a digital certificate issued by a certification authority, provides the highest guarantees regarding the document’s authenticity and integrity. Challenging such a signature is more difficult, as it is associated with a digital certificate that ensures the signer's identity and the document's integrity. However, the electronic signature can be contested if it is proven to have been issued illegally or if the signer's digital certificate was compromised (e.g., by theft of the certificate or private key). Additionally, if there is evidence that the signing process was not correctly carried out (e.g., the signature was applied to a document altered after signing), the signature can be challenged.
For a simple or advanced electronic signature, contesting it may be easier, especially if there is no adequate verification mechanism or if the signature was not applied in a secure environment. For example, it could be argued that the signature was applied without the signer's true consent or that it was compromised following a security breach in the computer system.
Witnesses
Witnesses are individuals who have knowledge of the facts in dispute, as they have personally perceived them through their own senses and can be heard as witnesses. Their testimony must be sincere and objective.
Examples:
In a divorce case, a witness could be a relative or a friend who was present during arguments between the spouses.
In a case involving the validation of a holographic will, witnesses can attest that they were present when the document was signed by the testator.
In a case involving a contract, witnesses can confirm that the parties had a verbal agreement or negotiated certain conditions.
In administrative offense cases, witnesses are often used to dispute findings made by police officers.
Who cannot be a witness?
Not everyone can be a witness. There are certain categories of individuals who are exempt from the obligation to testify, based on reasons related to the protection of special relationships or professional confidentiality.
The following categories of individuals cannot be witnesses:
Relatives and in-laws up to the third degree inclusive, spouse, former spouse, fiancé or cohabitant, individuals in antagonistic relationships or with a vested interest in one of the parties, individuals under special guardianship, and those convicted of perjury. These restrictions are regulated by law to ensure the objectivity and impartiality of the judicial process.
The following categories of individuals are exempt from testifying:
Ministers of religious cults, doctors, pharmacists, lawyers, notaries, bailiffs, mediators, midwives, and healthcare assistants, as well as any other professionals required by law to maintain confidentiality regarding facts they have learned in their professional activity, even after its cessation.
Judges, prosecutors, and public officials are exempt from testifying about confidential circumstances they became aware of during the performance of their duties, even after their tenure ends.
However, the individuals mentioned above, except for ministers of cults, may testify if they have been released from professional or service secrecy by the interested party, except in cases where the law provides otherwise. Similarly, judges, prosecutors, and public officials may testify with the approval of the authority or institution where they worked.
Technical Expert Report
In cases where specialized knowledge is required in certain fields, the parties involved in a civil dispute can request, or the court may order, the performance of a specialized expert report.
A technical expert is a specialist in a certain domain (e.g., medicine, construction, accounting) who will analyze the facts of the dispute and prepare a report with their conclusions.
Examples:
Traffic accidents, workplace accidents, or other situations where damages were caused: The court may request a technical or medico-legal expert report to assess the severity of injuries, the amount of damages, or the conditions under which the accident occurred.
Medical malpractice cases: When a person accuses a doctor or a hospital of negligence or medical error, the court may order a medical expert report to determine whether the medical act was performed appropriately or if there was an error that caused harm to the patient.
Child custody disputes: The court may request a psychological expert report to evaluate the parents' ability to provide a suitable environment for the children's upbringing and development. The report may include an assessment of the parents' psychological condition and their relationship with the children.
Product liability cases: In cases where a manufacturer is held responsible for injuries caused by defective products, the court may request a technical expert report to establish the defect in the product and its connection with the injuries suffered by the claimant.
Party Cross-Examination
Party cross-examination is a method of evidence through which the parties can be heard in a civil dispute. The parties can be called upon to answer questions posed by the other party or by the judge. The purpose of the cross-examination is to clarify certain aspects of the case.
Unlike witnesses, who can face criminal penalties for false statements made before the court, the parties answering a cross-examination do not face legal consequences for presenting false facts. For this reason, in many cases, the cross-examination is not an effective form of evidence, as the answers given by the parties generally align with the claims they have made through the procedural documents filed in the case.
Example:
In a debt dispute, the claimant may cross-examine the defendant regarding the date on which they promised to repay the money.
Presumptions
Presumptions are conclusions that the law or the court draws from certain known facts. In civil law, presumptions are used to establish a link between proven facts and facts that cannot be directly proven but are considered probable based on the former. Essentially, they allow the court to reach reasonable conclusions based on general experience or established legal rules.
There are two main types of presumptions:
Legal presumptions
These are established by law and cannot be challenged through contrary evidence, or can only be challenged under certain conditions. For example, the law presumes that the husband of the mother is the father of the child born in this marriage, and this presumption can only be challenged in very strict conditions (e.g., through a paternity denial lawsuit).
Factual presumptions
These are conclusions that the court can draw based on a proven fact, but the parties may present counter-evidence to challenge the presumption. For example, if a person was seen near the scene of an accident, the court may presume that the person was involved in the accident, but the person may prove they were not in the city at the time the accident occurred.
Material Means of Evidence
These are objects that can serve to demonstrate facts. Material means of evidence are things that, through their characteristics, appearance, or the marks or traces they leave, help establish a fact that can lead to the resolution of the case.
Also, material means of evidence include photographs, photocopies, films, sound recordings, and other such technical means, as long as they were not obtained by violating the law or good morals. Learn about the legality of recordings made without consent.
Examples:
In a case concerning a manufacturing defect, the defective product constitutes a material evidence. Read about products warranties.
Recorded telephone conversations, images captured by surveillance cameras, etc., can be used as evidence in contravention proceedings.
In a harassment case, recording threatening phone calls can be an important piece of evidence.
Administration of Evidence
Proposing Evidence
The proposal of evidence that a party intends to rely on in court must be made at the onset of the dispute, through the filing of the claim and the response. Any evidence that can already be submitted to the case file, such as documents, should be filed alongside these two procedural acts.
Strict deadlines exist for the proposal and administration of evidence, designed to ensure a fair and orderly procedure. Failure to adhere to these deadlines may compromise the proper conduct of the proceedings. If evidence is not proposed within the prescribed legal timeframe, the court may, as a general rule, refuse to admit such evidence. The sanction of being barred from submitting evidence is a procedural measure that denies the administration of evidence not proposed within the stipulated deadline.
Administering Evidence
The actual administration of evidence takes place in open court during hearings. Each party has the right to propose evidence and challenge the evidence submitted by the opposing party. The court will determine which pieces of evidence are admissible and necessary for resolving the dispute and, conversely, which will be excluded.
Hierarchy of Evidence in Civil Matters
The principle governing the evaluation of evidence in civil proceedings is the doctrine of free evaluation of evidence, meaning there is no hierarchical structure for types of evidence in civil litigation. Specifically, the court is free to assess all evidence presented throughout the trial, without being constrained by a fixed standard of proof or a pre-established order of importance among evidence types. The court must assess the evidence as a whole, considering the entire factual context of the case and the ultimate objective of the proceedings: to uncover the truth and apply the law appropriately to the facts at hand.
Exceptions to the Burden of Proof
The Civil Procedure Code outlines certain exceptions to the general rule that each party bears the burden of proof.
Article 251 of the Civil Procedure Code states that no party is required to prove facts that the court is already obligated to know ex officio. This refers to general knowledge that every judge is presumed to possess, including widely recognized facts, fundamental legal principles, or basic laws. For instance, it should not be necessary to prove that the Earth is round or that Bucharest is the capital of Romania, as these are universally known facts.
Article 252 of the Civil Procedure Code establishes a category of facts and information that judges must know ex officio and that do not need to be proven by the parties in a civil dispute. This includes the relevant Romanian legislation in effect, which judges are expected to be familiar with without the need for the parties to submit proof.
Judges' obligation to know the law is both universal and ongoing, but it should not be confused with the expectation of knowing every legal provision in force at all times. Such an endeavor would be impossible due to the vast number of laws and their continuous amendments. Instead, the obligation to know the law entails that judges must make reasonable efforts to identify the applicable legal provisions at any given time, using available legal tools, such as legislative programs, the Official Gazette, and case law.
However, there are exceptions to this obligation: texts that are not published in the Official Gazette of Romania or through another legally prescribed method, as well as international treaties, conventions, and agreements applicable in Romania that are not integrated into national legislation, must be proven by the interested party. These must be substantiated through evidence in the course of civil proceedings.
A particular case involves laws from foreign jurisdictions. Since these laws do not constitute part of Romanian legislation, judges are not required to know them ex officio. As such, any party seeking to invoke foreign law must prove its applicability by presenting evidence.
Practical Guidance on Evidence in Civil Litigation
The effective selection and management of evidence are critical factors in the success of a civil lawsuit. In practice, there are numerous instances where a party may have a valid case but is unable to prove their position due to insufficient evidence. As a result, rightful claims may be dismissed, leading to frustration and a sense of injustice. However, from an objective standpoint, this is a necessary outcome, as judges rely on evidence to establish the facts in disputes and are not privy to the personal circumstances that gave rise to the conflict.
Thus, it is advisable to:
Maintain all relevant documentation: contracts, invoices, receipts, correspondence, and similar materials can serve as crucial evidence in any potential dispute.
Be cautious with your statements and written communications: verbal and written statements, particularly those made in formal contexts, can be used against you in court.
Avoid fabricating evidence: falsifying documents is a criminal offense and can have severe legal consequences.
Seek legal counsel promptly: a lawyer specializing in civil litigation can guide you through the evidentiary requirements and represent your interests in court. It is crucial to consult with a lawyer before taking independent actions to prevent situations where it may be too late to alter the course of the litigation. Many individuals delay engaging legal representation to reduce costs, only to find that the outcome is no longer reversible due to improper filing of claims or failure to meet evidence submission deadlines.
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