WHERE IS MY JURY?

Everything you know about litigation as a U.S. lawyer is wrong for a German lawsuit. Brace yourself for a court room culture shock.

 

WHO’S TALKING?

German trial lawyer Bernhard Schmeilzl heads the litigation team of Graf & Partners LLP, a German law firm for Anglo-American clients.

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Get the best of both worlds: a professional German judge in a non-public civil proceeding

Parties to civil litigation often fear the public nature of a lawsuit, be it in the USA or in Germany. This is especially true for commercial and corporate cases as well as any litigation involving celebrities. The parties do not want their competitors and the public to learn about confidential business matters or — in case of celebrities — their private lives.

Therefore, many businesses and high profile individuals use arbitration clauses in their contracts to avoid ending up in a court room ful of reporters. However, arbitration is usually significantly more expensive compared to a “normal” German court case, because the arbitrators are high profile lawyers from big law firms who charge hourly rates north of EUR 500 easily. This is particularly trie in Germany where the statutory court fees are comparatively low (see here).

Furthermore, picking the right arbitrator(s) is difficult and time consuming. The parties need to agree on a competent lawyer who is available in the near future and who’s law office does not have a conflict of interest.

Mediation / Arbitration at German High Courts

In many cases, the ideal solution to this may be to opt for a German “Güterichterverfahren“, an open mediation / arbitration proceeding which takes place before a German high court judge (Güterichter) and to which the basic principles of the German civil procedure rules do apply. However, such a Güteverfahren is entirely confidential and the parties are free to define the scope of the dispute, i.e. they can include additional matters to achieve an overall solution. The German mediation / arbitration hearings in the Güterichterverfahren usually take place at the German court house but behind closed doors. There are official hearing minutes (Protokoll) but they are only available to the parties, not to the public.

What are the advantages of German high court arbitration?

German civil law judges actively encourage the parties to a legal dispute to consider such a court arbitration proceeding, even if a “normal” civil lawsuit has already been filed, see section 278 para. 5 German Civil Procedure Code. The advantages of this German high court arbitration are:

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Here’s why you can’t find any Process Servers in Germany

So you are a US, Canadian or British lawyer who needs to serve court papers to a party who is resident in Germany? Since you read this post, you have probably already realized that googling “Process Server Germany” does not get you anywhere. The simple explanation for why you are having such a hard time to find decent German process service providers on the internet: There aren’t any.

Germany has no tradition of instructing private process servers. No German lawyer would use them to deliver domestic legal documents to anyone who is resident in Germany. Because, under German civil procedure rules, they would simply see no need for it.

This post explains why the process server business sector never caught on in Germany and what German lawyers do in order to prove delivery of their legal papers.

Then how do German Lawyers serve Legal Documents?

Firstly, in German civil litigation, the German civil court usually serves the documents to the respective parties, witnesses and experts. This does not only refer to the court orders, but to all correspondence between the court and parties. While direct service from one party to the other is possible under german civil procedure rules, this is the exception to the rule. Since everyone who lives in Germany must be officially registered with the resident’s registration office (Einwohnermeldeamt), everyone — at least in theory — has an official registered private address and can be served with documents by simply sending those documents to said address.

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Avoid the #1 Litigation Blunder: Incomplete or incorrectly spelled Company Names of German Defendants

In corporate litigation, there can be no “close enough” approach when it comes to the designation of the Plaintiff or Defendant. A litigation lawyer who sues a German company must be dead-on with all factual information about the parties. The name of each company, corporation or partnership involved in the German civil procedure must be absolutely precise, complete and up to date.

Otherwise, under German civil procedure rules, you may lose the lawsuit. Simply because you have sued the wrong defendant. The German civil procedure buzzwords for this problem are “falscher Beklagter” and “fehlende Passivlegitimation”.

Even if the (incorrectly designated) defendant remains entirely passive throughout the German civil lawsuit, i.e. the Defendant does not object to anything and your client is thus awarded a German default judgment (Versäumnisurteil), the client’s joy about the German court judgment will most likely be short-lived, since chances are that the client will soon learn that the judgment is unenforceable.

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May a Witness in German Civil Litigation refuse to give Testimony?

Under German Rules of Civil Procedure, any natural person, including minors, can be named as a witness (Zeuge) by a party to a civil procedure. The civil court then decides on whether and to what extent these witnesses (as designated by the parties in their briefs to the court) need to be heard, i.e. whether — in the view of the court — the specific issue which the witness shall give testimony on, is:

(i) relevant for the court’s decision; and

(ii) still in dispute between Plaintiff and Defendant after the exchange of briefs.

If the answer to both requirements is yes, the respective witnesses will consequently be summoned (geladen) by the German civil court. In practice, each witness will be sent a letter by the civil court (Zeugenladung) which demands the witness to attend an oral hearing in order to be questioned as a relevant witness on one or several specific issue(s), the so called “topics for questioning” (Beweisthema), see s. 377 German Civil Procedure Code. Thus, the witness is informed a few weeks prior to the actual oral hearing date what the court will ask him to testify on. The witness summons only describes this topic in rather broad terms. Normally, the witness summons letter does not contain any specific questions (this is different when it comes to expert witnesses). A typical example of the content of such a German civil court summons letter to a witness of fact would be:

“In the civil lawsuit between A and B regarding a car accident on Z-street on the … around … o’clock you have been named as a witness. You shall give testimony about the details how the accident occurred.”

In some cases, the court may permit the witness to testify in writing, i.e. by answering the questions by sending in a letter. This is, however, the exception to the rule.

Duties of a Witness under German Civil Procedure Law

The standard procedure is that the witness must attend the court hearing in person. Every person summoned by a German civil court has the duty to appear in court, to testify truthfully (s. 390 et seqq. German Civil Procedure Rules) and to swear an oath if this is demanded by the court (which it very rarely is, as I have explained here).

This general obligation of a German witness to give testimony in a civil lawsuit exists, however, exclusively vis-a-vis the court itself. There are no pre-trial depositions in Germany. Instead, the witness is questioned only in court and primarily by the judge.

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German Civil Court Judges rarely put a Witness under Oath

Section 154 German Penal Code (Strafgesetzbuch) is titled “Meineid”, which is the German word for perjury, i.e. lying under oath to certain German authorities, either in a German court of law (Gericht) or in another official proceeding.

However, in real life, prosecution for perjury is very rare in Germany. This is not because all Germans are perfectly honest and no one lies in German court rooms (trust me, there is plenty of lying), but because not many German judges demand a witness to swear an oath. Not even when the judge is rather sure that he or she was just lied to by the witness.

Why does German law (appear to) employ such a soft approach towards “lying witnesses” in civil procedure? This post describes the method of hearing witnesses in a German civil lawsuit and explains why many civil law court judges in Germany are hesitant to put a witness under oath.

Witness Evidence in German Civil Litigation

First, you must remember that there is no jury in a German court of law (more here). The case is decided by a professional judge only. The German approach is that a witness shall be questioned by the judge (instead of by the parties) and shall tell “the story as the witness remembers it”. The witness shall coherently describe what he or she recalls, i.e. in a freely worded statement which is uninterrupted by constant questions by a party’s legal counsel. “Coherently” (“im Zusammenhang”) is the important buzzword here, see section 396 para. 1 German Code of Civil Procedure. This German civil procedure statute explicitly prohibits a rapid fire cross-examination style questioning of a witness.

The method of hearing witnesses in German civil litigation is therefore the exact opposite of the rather aggressive “question by question” approach used in the United States. German civil procedure rules do not believe in pressuring or leading witnesses. Instead, the German judge asks the questions rather broadly and then lets the witness speak. A typical question by a German civil court judge would be:

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“I can’t do any literary work for the rest of this year because I’m meditating another lawsuit and looking around for a defendant.”

– Mark Twain

THE EXPERT LAW BLOG CATEGORIES

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Taking Evidence

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Court Hearings

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Everything you need to know about German Court and Lawyer Fees.