German Appellate Process

German Appellate Process

APPELLATE REviEw

Like the career incentives that encourage good judicial performance,
the German appellate process is designed to protect litigants from caprice, error, or sloth. The adversarial component of lawyerly oversight, to which this article has so often referred, ultimately
depends for its effectiveness upon the threat of appellate
review. From the standpoint of comparison with American procedure,
two attributes of German appellate practice appear especially
noteworthy: (1) the requirement, meant to facilitate review, that
the first-instance court disclose in writing its findings of fact and
reasons of law; and (2) the de novo standard of review.

Disclosure of grounds

Unless the first-instance court is successful
in encouraging the parties to settle,110 it must decide the
case by means of a written judgment containing findings of facts
and rulings of law. The thoroughness of the German judgment is
legendary. Empirical study has shown how seriously the firstinstance
courts take their judgment-writing responsibility. In a considerable sample of nondivorce cases that went to judgment (i.e., that resisted settlement) in the main first-instance court (LG), an average 43% of the total time
devoted to all aspects of the courts’ work (including review of the dossier, fact-gathering,
and oral hearings) was spent on writing the judgment. 2 BUNDESRECHTSANWALTSKAMMER,
TATSACHEN ZUR REFORM DER ZIVLGERICHTSBARKEril. AUSWERTUNGEN 64-65 (1974).

Judges know that they will be judged on the quality of their opinions.
Good opinions reduce the reversal rate and win esteem in the
peer evaluation process. Judges know that the reviewing court will
have convenient access to the whole of the evidence and the submissions
received at first-instance, since the dossier goes up with
the appeal. Especially when coupled with searching review by an
appellate court of great ability, the requirement of written findings
and reasons is a bulwark against arbitrary or. eccentric adjudication.

In the United States system, by contrast, the conclusory general verdict of a
jury is the antithesis of a reasoned judgment; nor do we insist on
much better in the realm of bench trials.” Fact-finding in American courts all too often resembles Caligula dealing with vanquished gladiators: thumbs up or thumbs down, yours but to wonder why.

Review de novo

Ultimately, it is the prospect of appellate review
in German civil procedure that makes the other safeguards
effective, both as deterrents and as correctives. The dissatisfied litigant
has the right of appeal de novo (Berufung) in the first appellate
instance (typically the OLG). Appeal de novo lies from the court of petty jurisdiction (Amtsgericht) to the court
of general jurisdiction (LG). For the LG, which is the main first-instance court, the OLG is
the court with responsibility for review de novo.

Following are some figures that give a feel for the frequency of appeal de novo to the
OLG from the LG. In 1981 the LGs had a first-instance caseload of 574,860 cases and the
OLGs had a caseload of 85,021. The LGs decided 106,538 cases by full judgment (“streitiges
Urteil”), which is the main cohort of cases that can give rise to appeal de novo; in the same
year the OLG decided 25,299 cases by “streitiges Urteil.”

No presumption of correctnessattaches to the initial judgment. What makes this astonishingly
liberal system of appellate review possible is the extreme economy
of the technique, previously discussed, of recording in pithy summaries
the evidence gathered at first instance.116 Retrial becomes
for the most part only rereading.

The OLG “may choose to rehear evidence and is likely to do
so when demeanor of a witness seems important or when the record
fails to give sufficient detail. The main task in review de
novo is not, however, gathering new evidence, but considering
afresh the record and the judgment from below. OLG review guarantees
to the dissatisfied litigant a second look by a panel of longexperienced
judges on all matters of law and fact. In other words, for a litigant who wishes it, fact-finding will be reassigned from the court that did the primary fact-gathering (and this is another way
in which German procedure may be said to respond to Lon Fuller’s
concern about the danger of prejudgment in the investigating
courts). OLG review is collegial; a panel of several judges decides
the case. And because the OLG panels are specialized by subject matter, chances are that some of the judges who decide the case will be masters of the particular field of law.

From the OLG there is a further level of review (by the BGH)
according to a standard of review (Revision) that approximates the
Anglo-American notion of review for error.

Adequacy of safeguards. There is no denying the power of the
German judge, yet complaints about the misuse of judicial power
are extremely rare. The career incentives and the system of appellate
review have been designed to deter and correct abuse. Experience
suggests that they work.

Author: John H. Langbein, 1985

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