No jury, no gavel, no oath — no kidding!
Litigating in a German court of law could not be any more different from what USA litigation lawyers or English barristers are used to. First, under German civil procedure rules, there is no jury, only a professional judge (usually only one, sometimes three or five). That’s the guy you need to persuade in order to win your case. Therefore, any dramatic Tom Cruise style “I want the truth!” rhetoric in a pleading directed at jurors goes out the window. Instead, you are faced with a professional judge who already knows the case from having read the file and does not care for a courtroom spectacle. German judges, in most cases, are mellow and undramatic people. They don’t even have a gavel.
What else is different?
Well, quite a lot. For starters, there is no pre-trial discovery: actually, there is no discovery at all. There are no depositions and, normally, also no written witness statements. During the oral hearing of a German civil lawsuit — and this will come as another shock to a US litigation attorney — a witness is not examined and cross-examined by the party’s lawyers. Instead, the judge asks the witness the questions (and only those) which the judge considers relevant.
As a rule, witnesses do not even have to swear an oath. While German Civil Procedure Rules allow a judge to put a witness under oath, this is the rare exception in a German civil lawsuit. In other words: witnesses are believed by a German judge to speak the truth even without being put under oath (more here).
Don’t expect any Perry Mason moments
For all these reasons, German civil lawsuits are much less spectacular when compared to jury trials in the USA. This may well be the reason why, while German court rooms are of course open to the public, you rarely find spectators. Except for high profile lawsuits which receive media coverage.
Make sure you know the rules
Thus, if you or your client are faced with a civil lawsuit in Germany, you better be prepared for an entirely different set of rules. If not, you may show up in the German court room fully prepared to play a game of baseball, while everyone else is playing soccer.
This expert law blog explains German rules of civil procedure to Anglo-American lawyers and their clients. Learn how to prepare for and how to win German lawsuits. If you are involved in litigation in Germany, call +49 941 463 70 70 or write to firstname.lastname@example.org