Depending on the cause of action of the lawsuit other common forms of evidence used in Costa Rica are a judicial inspection of the site and the naming of an expert to render an opinion as to a particular subject matter within the lawsuit.

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In Costa Rica, the Attorney for either of the parties does not hire the experts. Instead, the Court maintains a list of “experts” on various subject matters. If an expert opinion is required or requested by either party to the lawsuit then the Court will randomly select the name of the next expert on the list. The party that requested the expert will then be notified by the Court that he must deposit with the Court Registry in advance the fees and expenses to cover the professional services of the expert.

This system of evidence gathering is different from the expansive discovery process that is available in the United States legal system. In that legal system, the judiciary delegates to the Attorneys the entire task of evidence gathering.

It is the Attorneys who gather the evidence, take deposition testimony of parties and witnesses, obtain discovery of records and documents and hire experts to support their position. In comparison to that system, the hands of the Attorney in Costa Rica are tied. However, the current system in Costa Rica wastes valuable judicial resources by tying up Judges with evidence gathering tasks which should be used for trying the cases and reducing the tremendous case backlog that exists in the Costa Rican judicial system. It is not uncommon for an ordinary lawsuit to drag on for ten years.

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After the taking of evidence, the court proceeds to rule on the admissibility of the evidence provided and gives all parties to the lawsuit ten days to present the court with their final statements and conclusions. These are written briefs that are filed with the Court and it is the opportunity for each party to summarize the facts of the case and set forth their legal arguments to support their position. After the ten days have elapsed, the court closes the taking of further testimony or evidence. The judge then evaluates the evidence and the arguments made and enters a final judgment. A final judgment rendered by a trial court (Juzgado) may be appealed to the Appellate Court (Tribunal Superior Civil).

B. The Abbreviated Procedure

The Costa Rican Code of Civil Procedure provides that certain types of cases may proceed to an abbreviated as opposed to the ordinary procedure. Only the following causes of action may proceed according to the abbreviated procedure: marital dissolution actions, paternity, legitimization, interdiction, disputes related to rental contracts, request for accounting, shareholder resolutions, easements and sales at public auction. The abbreviated process shortens some of the time frames applicable to the ordinary procedure in half but in practice the difference between an ordinary and an abbreviated process are minimal.

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C. The Summary Process

The Summary Process does make a significant difference regarding the time it takes for a case to wind through the judicial system from the filing of the complaint to a final judgment. However, the Summary Process is only available for the following causes of action: Landlord-Tenant evictions and rental increases, collection proceedings based upon executory financial instruments, injunctions, false claim to legal right or obligations due, restitution, controversies involving joint ownership of property or condominiums, guaranty, and possession of personal property. In the Summary Process the time to answer the complaint is five days and the period established for evidence gathering is also shortened to expedite the process. Most importantly the rulings that may be appealed are limited thus reducing the number of appeals and the time required for those appeals to be resolved.

Those causes of action which are not specifically named in Articles 420 for Abbreviated Procedure or Article 432 for Summary Procedure of the Costa Rican Procedural Code must proceed pursuant to the “ordinary” civil process.

In most instances, civil litigation in Costa Rica can become a lengthy and tedious process. This is due to a combination of factors which include insufficient funding of the Judicial Branch to adequately staff the courts to handle the case load which results in delays in the processing of lawsuits.

The lack of an oral process to expeditiously dispose of the numerous pretrial motions filed between the parties is a drain on the judicial resources that are available. Since motions must be filed in writing and then ruled upon in writing by the presiding Judge and the ruling served upon both parties before the proceedings can continue results in extended delays. It is also common practice for defense counsel to drag out the lawsuit as much as possible by appealing every ruling possible in effect, stalling the procedure pending the appellate resolutions. Sanctions against Attorneys for filing frivolous motions or misrepresenting factual issues in their pleadings are rarely, if ever punished. This in turn fosters this type of behavior among litigants to the complete detriment of the judicial process and erodes the publics perception and confidence in the judicial system.

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The fact that many Judges are named as “temporary” (Interinos) as opposed to “permanent” (Propietarios) employment positions results in Judges who are hesitant to rule and make final decisions. This happens because as long as they are in “temporary” status their employment can be terminated and they are afraid to lose their job. In a country with over fourteen thousand Attorneys, employment within the judicial court system is a coveted and well paid position by Costa Rican standards.

These factors combined with the fact that the Costa Rican system does not provide for punitive damages and forces the losing party to pay the costs and attorney’s fees of the prevailing party make litigation in Costa Rica an extremely tedious and frustrating experience which should be avoided, unless it becomes absolutely indispensable. Voltaire summed up the impact of lawsuits as follows: “I was never ruined but twice: once when I lost a lawsuit, and once when I won one”.

You can see ‘Litigation In Costa Rica’ – Part I here.

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Written by Attorney at Law – Roger A. Petersen. Roger has been an attorney since 1992 and is a member of both the Costa Rican and Florida Bar. He practices law in San José, Costa Rica and is the author of the best-selling book ‘The Legal Guide To Costa Rica.’

Many of our VIP Members have found the three page ‘Costa Rica Closing Checklist’ to be very helpful in educating and protecting them with the various steps involved in buying real estate. Registered VIP Members can download the Closing Checklist here.

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