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.
German trial lawyer Bernhard Schmeilzl heads the litigation team of Graf & Partners LLP, a German law firm for Anglo-American clients.
What is an “Unterlassungsklage”?
If you start a business in Germany, it is hard to avoid being taken to court by a competitor who files a German cease and desist order lawsuit against you in order to tell you what you are allowed to do and what you are not. Why so?
Germans have a lot of rules. An old saying is “Alles muss seine Ordnung haben” which means “everything must be in order”. But what good are rules if no one bothers to obey them?
Unlike the Italians and the Greek, who – at least on paper – also have a lot of laws and regulations, which – however – in everyday life no one seems to care about, Germans cannot bear if someone continuously does not play by the rules. There is the cliché of the German pedestrian waiting for the traffic light to turn green at 3 a.m. in the morning with no car in sight.
Getting sued in Germany is a matter of weeks!
That is why an extremely popular litigation tool under German law is the “Unterlassungsklage”, the German version of a cease and desist order application. This is used in all areas of German life, business and private. A neighbor repeatedly parks his car in your driveway? File a cease and desist order to prevent that from happening again. Someone sends you unwanted advertising emails? File a cease and desist order. A business competitor does not comply with German trade regulations on his web shop? File a cease … Well, you get the picture.
Sounds funny, but this can be a serious obstacle for non-German businesses starting up in Germany. We have had cases where a British or US business was confronted with 50+ cease and desist lawsuits by German competitors within the first month of trying to do business in Germany. For more on the German tradition of stress testing any newcomers see this post: Harsh Unfair Competition Rules in Germany
More information on litigation and legal fees in Germany is available in these posts:
- Making a Court Claim for Money in Germany: It’s actually quite easy
- Standard of Proof in German Civil Litigation
- German Litigation Experts explain Civil Procedure Rules
- A German Claimant can’t be his own Witness
- Compensation for a wrecked Car under the German Law of Torts
- Does German Law of Torts know the Egg Shell Skull Rule?
- How expensive is a German Lawsuit?
- Expert Reports on German Law
For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.
Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.
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Can German patients demand a complete copy of their medical file?
They certainly can. The German Civil Code contains an entire chapter on medical treatment and patient rights. Section 630g German Civil Code regulates that a patient has the right to demand to personally inspect the original patient file. This includes computer files as well as any handwritten notes that may exist. Nowadays, most physicians and certainly all hospitals keep patient files in electronic form. Thus, in practice, the doctors and medical institutions will offer to provide the patient with a copy of the medical records in such electronic form, i.e. as a CD, DVD or cloud based download option.
In some cases, especially when it comes to psychotherapy or mental disorder treatment, the neurologist oder psychotherapist may reason that it is against the patient’s best interest to grant him or her full knowledge of the file. However, this paternalistic view becomes more and more rare. Nowadays, German courts usually do rule in favour of the patient who wants to obtain full knowledge of his or her medical records, even if the patient may not be happy about the medical findings contained in such files.
How to obtain medical records to prepare a German tort case
We have explained in this post (link) how to make a personal injury claim in Germany. As far as compensation for pain and suffering (Schmerzensgeld) is concerned, such German personal injury lawsuits do not provide quite the same upside potential as in the United States due to the lack of a jury and due to the restrictive tradition of German law when it comes to non-monetary damages. Still, German law, in principle does compensate a patient for all costs, losses, expenses and also some non-monetary damages.
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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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