German Civil Procedure

German Civil Procedure

There are two fundamental differences between German and
Anglo-American civil procedure, and these differences lead in turn
to many others. First, the court rather than the parties’ lawyers
takes the main responsibility for gathering and sifting evidence, although
the lawyers exercise a watchful eye over the court’s work.
Second, there is no distinction between pretrial and trial, between
discovering evidence and presenting it. Trial is not a single continuous
event. Rather, the court gathers and evaluates evidence over
a series of hearings, as many as the circumstances require. Reforms enacted in 1976 and in force since 1977, based on practice pioneered in
Stuttgart and widely known as the “Stuttgart Model,” encourage the courts to dispose of a
case in a single hearing when circumstances permit. See, e.g., LEO ROSENBERG & KARL-HEINZ
SCHWAB, ZIVILPROZESSaCHT § 84, at 456-60, § 107, at 614-17 (13th ed. 1981); see id. § 107, at
614 for bibliography. For English-language discussion, see Bender, The Stuttgart Model, in
2 ACcEss TO JUSTICE: PROMISING INSTITUTIONS 433 (M. Cappelletti & J. Weisner ed. 1979).
As modified, the code reads: “Ordinarily (in der Regel), the case should be resolved in a
single hearing, comprehensively prepared.” ZIMPEOZESSORDNUNG [ZPO] (Code of Civil Procedure)
§ 272(I). In aid of this comprehensive preparation, ZPO § 273, formerly ZPO
§ 272(b), authorizes the court to take various steps in advance of the hearing (for example,
requiring the parties to clarify positions, obtaining documents, summoning parties and witnesses
to the hearing). Many simpler cases do lend themselves to one-hearing disposition,
either through court-aided settlement or by judgment. When this happens the German procedure
resembles the American pattern of pretrial preparation followed by a concentrated
trial. However, even in such cases, because the court has the option to schedule further
hearings if developments at the initial hearing seem to warrant further proofs or submissions, German procedure is devoid of the opportunities for surprise and tactical advantage
that inhere in the Anglo-American concentrated trial. See infra text accompanying note 23.
For cases that do not lend themselves to one-hearing resolution, the 1977 amendments
have not altered the episodic character of the procedure. Further hearings may be ordered
as necessary. See, e.g., ZPO § 278(IV). “The whole procedure up to judgment may therefore
be viewed as being essentially a series of oral conferences.” Katz, Civil Litigation and the
Public Interest, 1 Civ. JUST. Q. 237, 243 (1982) [hereafter cited as Katz, Civil Litigation].
German procedure recognizes something called the Konzentrationsmaxime, which, if
translated as the “principle of concentration” and equated with the rule of concentrated
trial in Anglo-American law, is a serious false cognate. The Konzentrationsmaxime expresses
nothing more than the general efficiency value that the court should handle the case
as rapidly as possible, and where possible in a single hearing. See, e.g., ADOLF BAUMBACH,
ZIVILPROZESSORDNUNG § 253, Ubersicht at 634, T 2(E) (43d ed. 1985).

Initiation

The plaintiff’s lawyer commences a lawsuit in Germany
with a complaint. Like its American counterpart, the German
complaint narrates the key facts, sets forth a legal theory, and
asks for a remedy in damages or specific relief.10 Unlike an American
complaint, however, the German document proposes means of
proof for its main factual contentions.” The major documents in
the plaintiff’s possession that support his claim are scheduled and
often appended; other documents (for example, hospital files or
government records such as police accident reports or agency files)
are indicated; witnesses who are thought to know something helpful
to the plaintiff’s position are identified. The defendant’s answer
follows the same pattern. It should be emphasized, however, that
neither plaintiff’s nor defendant’s lawyer will have conducted any
significant search for witnesses or for other evidence unknown to
his client. Digging for facts is primarily the work of the judge.

Judicial preparation

The judge to whom the case is entrusted
examines these pleadings and appended documents. In former times there was greater use of collegial first-instance courts, but by 1974
the tradeoff between dispatch and safeguard was resolved in favor of dispatch, and ZPO
§ 348 now presupposes a single-judge court in most circumstances. For background in English
see Fisch, supra note 8, at 227-36; on the former practice, see Kaplan-von Mehren,
supra note 8, at 1206-07, 1247-49.

The judge routinely sends for relevant public records. These materials form the beginnings
of the official dossier, the court file. All subsequent submissions
of counsel, and all subsequent evidence-gathering, will be entered
in the dossier, which is open to counsel’s inspection
continuously.

When the judge develops a first sense of the dispute from
these materials, he will schedule a hearing and notify the lawyers.
He will often invite and sometimes summon the parties as well as
their lawyers to this or subsequent hearings. If the pleadings have
identified witnesses whose testimony seems central, the judge may
summon them to the initial hearing as well. The nineteenth-century tradition that one of the parties had to nominate a witness before the court could examine him (Verhandlungsmaxime) has long been something of a
fiction, since a party usually detects a strong incentive to follow judicial suggestion in nominating
some line of proof. The reforms of the 1970s directed to accelerating the procedure
have further accentuated the court’s authority to investigate independent of party nomination.
For recent complaint from the bar that the bench is straining too far in this direction,
see Birk, Wer fahrt den Zivilprozess-der Anwalt oder der Richter? 38 NEuE JURISTISCHE
WOCHENSCHRIFT 1489, 1496 (1985).

Hearing

The circumstances of the case dictate the course of
the hearing. Sometimes the court will be able to resolve the case by
discussing it with the lawyers and parties and suggesting avenues
of compromise. If the case remains contentious and witness testimony
needs to be taken, the court will have learned enough about
the case to determine a sequence for examining witnesses.

Examining and recording

The judge serves as the examinerin-chief. At the conclusion of his interrogation of each witness,
counsel for either party may pose additional questions, but counsel
are not prominent as examiners. Witness testimony is seldom recorded
verbatim; rather, the judge pauses from time to time to dictate
a summary of the testimony into the dossier.” The lawyers
sometimes suggest improvements in the wording of these summaries,
in order to preserve or to emphasize nuances important to one
side or the other.

Since the proceedings in a difficult case may require several
hearings extending across many months, these summaries of concluded
testimony-by encapsulating succinctly the results of previous
hearings-allow the court to refresh itself rapidly for subsequent
hearings. The summaries also serve as building blocks from
which the court will ultimately fashion the findings of fact for its
written judgment. If the case is appealed, these concise summaries
constitute the record for the reviewing court. (We shall see that the
first appellate instance in German procedure involves review de
novo, in which the appellate court can form its own view of the
facts, both from the record and, if appropriate, by recalling witnesses
or summoning new ones).

Anyone who has had to wade through the longwinded narrative
of American pretrial depositions and trial transcripts (which
preserve every inconsequential utterance, every false start, every
stammer) will see at once the economy of the German approach to
taking and preserving evidence.”8 Our incentives run the other way;
we pay court reporters by the page and lawyers mostly by the
hour.

A related source of dispatch in German procedure is the virtual
absence of any counterpart to the Anglo-American law of evidence.
German law exhibits expansive notions of testimonial privilege,
especially for potential witnesses drawn from the family.’

But German procedure functions without the main chapters of our
law of evidence, those rules (such as hearsay) that exclude probative
evidence for fear of the inability of the trier of fact to evaluate
the evidence purposively. In civil litigation German judges sit without
juries (a point to which this essay recurs20); evidentiary shortcomings
that would affect admissibility in our law affect weight or
credit in German law.

Expertise

If an issue of technical difficulty arises on which
the court or counsel wishes to obtain the views of an expert, the
court-in consultation with counsel-will select the expert and define
his role.

Further contributions of counsel

After the court takes witness
testimony or receives some other infusion of evidence, counsel
have the opportunity to comment orally or in writing. Counsel use
these submissions in order to suggest further proofs or to advance
legal theories. Thus, nonadversarial proof-taking alternates with
adversarial dialogue across as many hearings as are necessary. The
process merges the investigatory function of our pretrial discovery
and the evidence-presenting function of our trial. Another manifestation
of the comparative efficiency of German procedure is that a
witness is ordinarily examined only once. Contrast the American
practice of partisan interview and preparation, pretrial deposition,
preparation for trial, and examination and cross-examination at
trial. These many steps take their toll in expense and irritation.

Judgment

After developing the facts and hearing the adversaries’
views, the court decides the case in a written judgment that must contain full findings of fact and make reasoned application of
the law.

JUDICIAL CONTROL OF SEQUENCE

From the standpoint of comparative civil procedure, the most
important consequence of having judges direct fact-gathering
in this episodic fashion is that German procedure functions without
the sequence rules to which we are accustomed in the AngloAmerican
procedural world. The implications for procedural economy
are large. The very concepts of “plaintiff’s case” and “defendant’s
case” are unknown. In our system those concepts function
as traffic rules for the partisan presentation of evidence to a passive
and ignorant trier. By contrast, in German procedure the
court ranges over the entire case, constantly looking for the jugular-for
the issue of law or fact that might dispose of the case.

Free of constraints that arise from party presentation of evidence,
the court investigates the dispute in the fashion most likely to narrow
the inquiry. (…)

The episodic character of German civil procedure-Benjamin
Kaplan called it the “conference method” of adjudication-has
other virtues: It lessens tension and theatrics, and it encourages
settlement. Countless novels, movies, plays, and broadcast serials
attest to the dramatic potential of the Anglo-American trial. The
contest between opposing counsel; the potential for surprise witnesses
who cannot be rebutted in time; the tricks of adversary examination
and cross-examination; the concentration of prooftaking
and verdict into a single, continuous proceeding; the unpredictability
of juries and the mysterious opacity of their conclusory
verdicts-these attributes of the Anglo-American trial make for
good theatre. German civil proceedings have the tone not of the
theatre, but of a routine business meeting-serious rather than
tense. When the court inquires and directs, it sets no stage for advocates
to perform. The forensic skills of counsel can wrest no material
advantage, and the appearance of a surprise witness would
simply lead to the scheduling of a further hearing. In a system that
cannot distinguish between dress rehearsal and opening night,
there is scant occasion for stage fright.

In this business-like system of civil procedure the tradition is
strong that the court promotes compromise. ZPO § 279 imposes upon the court the duty to explore the possibility of a settlement at every stage of the proceeding. “Settlement is sometimes prized as the crown of the judicial
function, as the goal for which a healthy legal system continually strives.” OTHMAR
JAUERNIG, ZIVILPROZESSRECHT § 48 (VII), at 171 (20th ed. 1983). Kaplan and his coauthors
remark: “The intensity and candor of the court’s drive toward settlement will astonish an
American observer. In few cases does settlement go unmentioned and it is the judge who
generally initiates the discussion.” (Kaplan-von Mehren).

The judge who gathers the facts soon knows the case as well as the litigants do, and he
concentrates each subsequent increment of fact-gathering on the
most important issues still unresolved. As the case progresses the
judge discusses it with the litigants, sometimes indicating provisional
views of the likely outcome [The presiding judge is required to discuss the factual and legal aspects of the case
with the parties, ZPO § 139(I), and to advise the parties of his doubts, ZPO § 139(H)]. He is, therefore, strongly positioned to encourage a litigant to abandon a case that is turning out
to be weak or hopeless, or to recommend settlement. The loserpays
system of allocating the costs of litigation gives the parties
further incentive to settle short of judgment. ZPO § 91 announces the basic principle, although the details extend across several
special statutes, including the Kostenordnung [KosTO] (Statute on Costs) and the
Bundesrechtsanwaltsgebtihrenordnung [BRAGO] (Federal Statute on Lawyers’ Fees). See
generally 1 STEiN-JONAs, KOMMENTAR ZUR ZIVILPROZESSORDNUNG § 91 Vorbemerkungen at
293-304 (20th ed. 1984). For brief treatment in English, see 2 E. COHN, supra note 8, at 182-
90; Kaplan-von Mehren, supra note 8, at 1461-70; see also Pfennigstorf, The European Experience with Fee Shifting, LAw & CoNrsMP. PROBS., Winter 1984, at 37; infra note 78.

WITNESSES

German law distinguishes
parties from witnesses. A German lawyer must necessarily
discuss the facts with his client, and based on what his client tells
him and on what the documentary record discloses, the lawyer will
nominate witnesses whose testimony might turn out to be helpful
to his client. As the proofs come in, they may reveal to the lawyer
the need to nominate further witnesses for the court to examine.
But the lawyer stops at nominating; virtually never will he have
occasion for out-of-court contact with a witness. Not only would
such contact be a serious ethical breach, it would be self-defeating.
“German judges are given to marked and explicit doubts about the
reliability of the testimony of witnesses who previously have discussed
the case with counsel or who have consorted unduly with a
party. [3Kaplan-von Mehren, supra note 8, at 1201. K6tz has written lately in a similar vein:
“German attorneys will be highly reluctant to talk with prospective witnesses. This results
in part from an ethical standard as expressed in the canons promulgated by the German Bar
Association where it is said: ‘Questioning of witnesses out of court is advisable only when
special circumstances justify it. In such questioning even the appearance of attempting to
influence the witness must be avoided.’ [Citing Richtlinien der Bundesrechtsanwaltskammer
fir die Ausabung des Anwaltsberufs, § 4 (May 11, 1957).] If any attorneys were prepared
to wink at this standard, which is doubtful, they would have to take account of the
further fact that German judges would take an extremely dim view of the reliability of witnesses
who previously had discussed the case with counsel.” Katz, Civil Litigation, at 241].

EXPERTS

In the Continental tradition experts are selected and commissioned by
the court, although with great attention to safeguarding party interests.
In the German system, experts are not even called witnesses.
They are thought of as “judges’ aides.”

The Continental tradition

European legal systems are, by
contrast, expert-prone. 40 Expertise is frequently sought. The literature
emphasizes the value attached to having expert assistance available to the courts in an age in which litigation involves facts
of ever-greater technical difficulty.4 The essential insight of Continental
civil procedure is that credible expertise must be neutral
expertise. Thus, the responsibility for selecting and informing experts
is placed upon the courts, although with important protections
for party interests.
Selecting the expert. German courts obtain expert help in
lawsuits the way Americans obtain expert help in business or personal
affairs. If you need an architect, a dermatologist, or a
plumber, you do not commission a pair of them to take preordained
and opposing positions on your problem, although you do
sometimes take a second opinion. Rather, you take care to find an
expert who is qualified to advise you in an objective manner; you
probe his advice as best you can; and if you find his advice persuasive,
you follow it.

When in the course of winnowing the issues in a lawsuit a German
court determines that expertise might help resolve the case,
the court selects and instructs the expert. The court may decide to
seek expertise on its own motion, or at the request of one of the
parties.42 The code of civil procedure allows the court to request
nominations from the parties4 3 -indeed, the code requires the
court to use any expert upon whom the parties agree 4 4-but
neither practice is typical. In general, the court takes the initiative
in nominating and selecting the expert.

The only respect in which the code of civil procedure purports
to narrow the court’s discretion to choose the expert is a provision whose significance is less than obvious: “If experts are officially designated for certain fields of expertise, other persons should be
chosen only when special circumstances require. One looks
outside the code of civil procedure, to the federal statutes regulating
various professions and trades, for the particulars on official
designation. 46 For the professions, the statutes typically authorize the official licensing bodies to assemble lists of professionals
deemed especially suited to serve as experts. In other fields, the
state governments designate quasi-public bodies to compile such
lists. For example, under section 36 of the federal code on trade
regulation, the state governments empower the regional chambers
of commerce and industry (Industrie- und Handelskammern) to
identify experts in a wide variety of commercial and technical
fields. That statute directs the empowered chamber to choose as
experts persons who have exceptional knowledge of the particular
specialty and to have these persons sworn to render professional
and impartial expertise.47 The chamber circulates its lists of experts,
organized by specialty and subspecialty, to the courts. German
judges receive sheaves of these lists as the various issuing
bodies update and recirculate them.

Preparing the expert. The court that selects the expert instructs
him, in the sense of propounding the facts that he is to
assume or to investigate,’ and in framing the questions that the
court wishes the expert to address. In formulating the expert’s
task, as in other important steps in the conduct of the case, the
court welcomes adversary suggestions. If the expert should take a
view of premises (for example, in an accident case or a buildingconstruction
dispute), counsel for both sides will accompany him.51
Safeguards. The expert is ordinarily instructed to prepare a
written opinion. [ZPO § 411(I) authorizes the court to require the expert to report in writing. The
language of the statute may make this look exceptional (“If a written report is ordered
…. “), but in practice ordering the report is quite the norm. See K JESSNITZER, supra note
35, at 166-67].

When the court receives the report, it is circulated
to the litigants. The litigants commonly file written comments,
to which the expert is asked to reply. The court on its own
motion may also request the expert to amplify his views. If the
expert’s report remains in contention, the court will schedule a
hearing at which counsel for a dissatisfied litigant can confront and
interrogate the expert.

The code of civil procedure reserves to the court the power to
order a further report by another expert if the court should deem
the first report unsatisfactory. A litigant dissatisfied with the expert
may encourage the court to invoke its power to name a second
expert. The code of criminal procedure has a more explicit standard
for such cases, which is worth noticing because the literature
suggests that courts have similar instincts in civil procedure. The court may refuse a litigant’s motion to engage a further expert in a criminal case, the code says,

“if the contrary of the fact concerned has already been proved
through the former expert opinion; this [authority to refuse to
appoint a further expert] does not apply if the expertise of the
former expert is doubted, if his report is based upon inaccurate
factual presuppositions, if the report contains contradictions,
or if the new expert has available means of research
that appear superior to those of a former expert.” [STRAFPROZESSORDNUNG [STPO] (Code of Criminal Procedure) § 244(IV). See generally 3 LOwE-RoSENE EG, Dm STRAFPROZESSORDNUNG UND DAS GERICHTSVERFASSUNGSGESETZ
§ 244 (IV), 1 143-150 (23d ed. 1978)]

When, therefore, a litigant can persuade the court that an expert’s
report has been sloppy or partial, that it rests upon a view of the
field that is not generally shared, or that the question referred to
the expert is exceptionally difficult, the court will commission further
expertise.

A litigant may also engage his own expert, much as is done in
the Anglo-American procedural world, in order to rebut the courtappointed
expert. The court will discount the views of a partyselected
expert on account of his want of neutrality, but cases occur in which he nevertheless proves to be effective. Ordinarily, I am told, the court will not in such circumstances base its judgment
directly upon the views of the party-selected expert; rather, the
court will treat the rebuttal as ground for engaging a further courtappointed
expert (called an Oberexperte, literally an “upper” or
“superior” expert), whose opinion will take account of the
rebuttal.

To conclude: In the use of expertise German civil procedure
strikes an adroit balance between nonadversarial and adversarial
values. Expertise is kept impartial, but litigants are protected
against error or caprice through a variety of opportunities for consultation,
confrontation, and rebuttal.

Author: John H. Langbein

Leave a Comment