Court Hearings - German Civil Procedure

How to Win Commercial Lawsuits in Germany

Get Your Free Copy of Our Civil Litigation Brochure

Practical Information from Court Savy German Litigators

In the brand new brochure „A Short Guide to Civil & Commercial Litigation in Germany“, I explain the basics of commercial litigation under German Civil Procedure Rules: How to prepare, which court to approach, whether to try to negotiate a settlement and – if so – when. How to adapt to the very different German civil procedure rules with regard to evidence. And finally, what to do and – more importantly – what not to do in a German courtroom.

After 20 years of experience in international litigation, working mainly for British and American clients, I am well aware of the typical misconceptions held by UK and US business owners and their lawyers. These misconceptions result in poor litigation strategy and – eventually – lost cases in German courts of law.

Avoid the trap of preparing your lawsuit as you would in the UK or USA when – in fact – you will face a German judge who has entirely different expectations.

The brochure is a must read for anyone involved in German civil litigation

Make sure you get your free copy by dropping us an email to info@graflegal.com

Contentious Probate in Germany

Lawyer Video on Probate in Europe

Our special interest blog www.internationalprobatelaw.com deals with the matter of how to administer German-American estates, how to obtain probate in Europe (especially Germany, Austria and England), the overseas succession laws and estate taxes (death taxes) in Europe.

Contentious Probate Proceedings in Germany (Erbscheinverfahren)

Normally, German probate cases are dealt with the local surrogate court (Amtsgericht). They issue the German grant of probate (also referred to as letter of succession or letter of administration) in a quite straight forward proceeding. Compared to the USA, German probate courts are not involved in the administration of the German estate. Once, the court has issued the grant, the judge’s job is done. For more on non-contentious probate in Germany see the post „How to challenge a will in Germany“ as well as various articles about this topic on Cross Channel Lawyers.

In the unfortunate case that someone challenges a will in an international probate case (contentious probate), matters become much more complicated and expensive.

This Video deals with the 24 most frequently asked Questions on Overseas Probate

The overseas probate law experts at Graf Legal assist with international estate matters between the USA and Europe since 2003. In our experience, these are the questions most American clients run into when they are faced with an international inheritance case. German lawyer Bernhard Schmeilzl answers them in the video below. The list of questions contains the respective start time for each question so you can jump right to the specific topic you are interested in:

1) What is an „Erbschein“? (00:11)

2) Is the process for hiring a German lawyer different from hiring a lawyer in the States? (00:57)

3) How much does it cost to hire a European Lawyer? (02:06)

4) My deceased relative owned property in Europe. Do I need a separate grant of probate for those assets? (03:04)

5) How does German or English probate differ from American probate? (04:01)

6) Can I be personally held liable for the debts of an international estate? (04:47)

7) What documents do I need to submit to the German and English probate courts to have access to he estate? (05:47)

8) How long does the international probate process take? (06:58)

9) Will I have to travel to Germany or England in order to access the assets my loved one land? (07:41)

10) What are the rules of intestacy in Germany? (08:22)

11) How can we sell foreign assets in an estate? (09:16)

12) How can I get access to assets in Germany or England? (10:09)

13) Who administers a foreign estate if there is no Will? (11:07)

14) How can I swear the oath or give the affidavit with regards to the probate application? (12:11)

15) How do I get an inheritance tax clearance from German and England? (13:20)

16) Is there an estate tax on foreign assets? (14:29)

17) I received a letter from German probate court because a relative has died. What do I need to do? (15:14)

18) Is a United States Will valid in Germany and England? (16:04)

19) What are “forced heirship” rules? (16:56)

20) Am I entitled to a share of the estate if a foreign relative has died? (17:53)

21) What happens if someone contests the Will in Germany? (19:01)

22) Can I act as the executor or administrator abroad myself? (19:49)

23) I have foreign assets. How can I ensure they avoid probate? (20:22)

24) What is the principle of universal succession? (21:21)

Or just watch the entire video here

Guide to German Civil Proceedings

The Process and Main Stages of Civil Litigation in Germany

Filing a Civil Complaint

In order to initiate a civil lawsuit (Zivilprozess) in Germany, the plaintiff (Kläger) files a complaint with the competent German court (see here). This complaint is called “Klage” or “Klageschrift”, which means “statement of claim”.

After due registration by the court and a very preliminary compliance check with regards to the formal requirements set out by the German Civil Procedure Rules, the complaint is then served to the defendant. In most cases, the court itself takes care of the service procedure, but only after the claimant has either paid the court fees (Gerichtskosten) or has been granted legal aid by the court, which requires the claimant to demonstrate reasonable chances of success.

Personal service of civil litigation documents is normally not required in Germany and – as long as there is a valid address of the defendant within Germany — the claimant does not have to bother with any matters of service at all (for details see here).

In addition to the Klageschrift (complaint) itself, the court will serve to the defendant a letter setting a deadline for the defendant to inform the court whether they wish to dispute the claim. This deadline is usually 2 weeks if the defendant is resident in Germany but can be significantly longer if the defendant resides outside Germany. The court documents will contain detailed explanatory notes on the rights and obligations of the defendant. If the defendant misses this deadline, the German court will issue a default judgment (Veräumnisurteil), which is explained here.

In the Klageschrift (civil complaint), the plaintiff or their lawyer first explain why this specific German court has jurisdiction (Zuständigkeit) and demonstrate that all other formal requirements are satisfied, for example that the plaintiff is duly represented by a German licensed lawyer which is required on the High Court level and up (Postulationsfähigkeit), that the case is not already pending elsewhere (anderweitige Rechtshängigkeit), and that the lawsuit is not frivolous (Rechtsschutzbedürfnis). This part of the complaint is called “Zulässigkeit der Klage” (admissibility of the complaint).

The second part of the German statement of claim, the so called “Begründetheit der Klage” (justification of the claim), deals with the actual legal merits of the claim. In this part of the civil complaint, the German plaintiff’s lawyer describes the nature of the injury and damages and lays out how the defendant caused the harm.

The actual „application for relief“ (Klageantrag) is usually stated right at the beginning of the complaint (i.e. on page 1 or 2). Some old-fashioned German litigation lawyers, however, put the demand for relief at the end of the German civil complaint. In the Klageantrag, the plaintiff may seek a wide variety of remedies, inter alia the payment of a specific amount of money to compensate for the damages (Zahlungsanspruch), or a court order against the defendant to stop a specific conduct (Unterlassungsanspruch). A German civil court may order many other types of relief, for details see this post.

Preparation of a German Civil Case

As we have explained in other posts (here), there is neither any discovery procedure under German civil procedure rules, nor are there any depositions or written witness statements. There is also no jury and no cross-examination of witnesses. German civil cases are much more centered around the judge (or panel of judges). These judges do not appreciate showboat lawyers trying to create a spectacle (to impress their client). Instead, these German judges want to be presented the relevant facts. Calmly and without aggressively attacking witnesses or experts. Remember that nowadays approximately 50% of German high court judges are female. They are usually not a fan of too much lawyer testosterone in the courtroom.

Since there is no jury and since the professional German judges are already well aware of the facts of the case from the submitted briefs, there are usually also no closing arguments. Once the relevant witnesses are heard (questions are asked by the judge!), the judge gives the parties an opportunity to discuss the case, especially to consider a late stage settlement. If this fails, the oral hearing is usually ended rather abruptly and the court adjourns.

This German style of a rather “mellow approach to civil litigation” often creates considerable frustration for US clients and their US attorneys because they feel that their side is not being presented as it should be. And a reasonable dose of US style aggressiveness in a German courtroom can work wonders. We frequently use these „shock and awe“ tactics for our international clients. However, overdoing this in a German courtroom can be counterproductive. German trial lawyers who represent US or UK clients in Germany must explain the options and openly discuss strategy.

All this leads to a very different preparation of the civil lawsuit compared to the USA or the United Kingdom. In general, the oral hearings themselves are much less dramatic and also much less important for the outcome of the lawsuit. The lawyer’s briefs (Schriftsätze) together with reports of expert witnesses (Sachverständige), who are selected, instructed and questioned by the court – not by the parties, are generally what decides the case.

Settling a German Lawsuit

To avoid the stress, delay and expense which come with a formal trial, German civil procedure rules encourage litigants to attempt to reach any amicable resolution of the legal dispute. Thus, it is not only permitted but highly recommended and expressly encouraged by German civil litigation judges to settle a lawsuit – at any stage. The German system of statutory legal fees (both court and lawyer fees) also incentivises settlements. To be blunt: German lawyers earn more fees if they can get their clients to settle. More on this in the post: How to Settle a Lawsuit in Germany.

Oral Hearing in German Civil Proceedings

As explained above, there is no jury. Thus, oral hearings in German civil lawsuits are much shorter. If there is no need to hear witnesses or experts, and if the parties are unwilling to discuss a settlement, the hearing can be over in 10 minutes. For more on oral hearings in a German civil procedure see here .

The taking of evidence in a German civil trial is explained in this post here. Further major differences between civil litigation in German and the USA are that (i) there are no verbatim records or transcripts of what is said in the German oral hearings (details here), much less are there any video cameras or live broadcast; and (ii) the court documents are not public record.

How are Judgments issued by German Civil Courts?

Once all evidence is presented, expert reports have been obtained and once there has been at least one oral hearing, the court decides whether there is the need for another oral hearing or whether the court is willing to allow the parties to submit one final statement within a specific deadline (Schriftsatzfrist).

Whenever the court is satisfied that all relevant aspects have been duly dealt with and both parties have had sufficient opportunity to state their arguments and to present their evidence, then the court informs the parties about the date on which the judgment will be handed down (Verkündungstermin). Again, since there is no jury, this is a rather undramatic. In the vast majority of cases, neither party shoes up for the rendition of the judgment (Urteilsverkündung), because that would be over in 2 minutes since the judge only reads the operative provisions (Urteilstenor), i.e. who has won the lawsuit. In practice, both parties’ lawyers have a paralegal call the court on the day of the Urteilsverkündung and ask the court clerk to fax or email an advance copy of the judgment. The official copy of the German judgment will then be sent by post within a few days. Usually, the judgment is served to the parties‘ lawyers who will then evaluate the reasons given by the court. Based on this evaluation, they will then advise their clients on whether it makes sense to officially appeal the German judgment.

More information on litigation and legal fees in Germany is available in these posts:

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.

Mediation before a German High Court Judge

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:

confidentiality, non public procedure
experienced professional German judges who are absolutely impartial hear the case; neither party must fear that a private arbitrator (or their law firm) has any hidden stakes in the matter
very reasonable costs since the German statutory court fee table does apply
in case of a settlement, the judge will issue an enforceable court order
if the parties do not reach a settlement, they have not lost anything because they can always go back to the standard civil litigation proceedings (streitiges Zivilverfahren) in which another judge will then hear the case

More information about this Güterichterverfahren (not to be confused with the Gütetermin, which is part of any German civil litigation) is available here and in these posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Right to refuse Testimony in German Civil Court

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.

Whether and to what extent any „witness preparation“ is permitted under German civil procedure rules is a difficult issue. Remember that there is no jury in Germany, neither in civil nor in criminal cases. Thus, how a witness „comes across“ is far less important in a German court case. Also, the witness and the legal counsel who has named the same cannot really „practice“ their Q&A session in advance, simply because the German judge will pose the questions, not the trial lawyer. Still, a professional German trial lawyer will attempt to get a clear picture of what the witness will say in court. If the witness is very close to the client the lawyer is representing, the lawyer is not prohibited to rehearse the statement and give the witness feed back. However, obviously, the lawyer must not influence the facts themselves. The witness must also be prepared how to react if the judge or the opponent’s legal counsel asks whether the other party has discussed the case with him or her. A worst case answer by the witness would be:

„I did not really see this with my own eyes, but my husband’s lawyer has told me to say that …“

Since most German lawyers are somewhat afraid of being accused of unduly influencing a witness, they go to the other extreme: They do not even speak to the witnesses for their own case. In German forensic practice, it is often not even attempted to verify at the pre-trial stage what exactly it is that the witness will actually say in court. Furthermore, it is even uncommon to obtain written statements from a witness, much less to submit such witness statements to the court. This sometimes leads to surprising witness statements in the German civil court oral hearing. From my own courtroom experience, about one third of the witnesses either do not know anything about the topic they are supposed to give testimony on, or they testify the opposite of what the party who has named that witness did expect.

Who can be a Witness?

As mentioned above, the German civil court decides by way of a „court order on obtaining evidence“ (Beweisbeschluss) whether and to what extent a witness, who has been named by one of the parties, shall be summoned and heard. Under the „principle of party presentation“ (Beibringungsgrundsatz), the court is not permitted to summon anyone who has not been „offered as a witness“ (Beweisangebot) by a party to the proceedings. On the other hand, the court is not obligated to summon each and every person to be heard in court, just because a party writes that person on their witness list.

There is no minimum age requirement to be a witness in German civil proceedings. According to the definition by the German Federal Court of Justice (Bundesgerichtshof), the highest German court in civil matters:

every person, who is intellectually able to make observations, to keep these in mind, to answer questions regarding these observations and to reproduce them, has the ability to testify in court (BGH, NJW 1985, p. 1158).

If a party names a young child or a mentally sick or handicapped person, it is up to the court to assess whether this person can be heard as a witness at all and — if so — whether the testimony given by such person is credible (Prinzip der freien Beweiswürdigung).

Who may refuse to testify in German Civil Court?

In German criminal procedure, as in German civil procedure, there are certain situations in which a witness is permitted to refuse giving testimony. In Germany, as in the USA and the UK, there is no legal doctrine of „finding justice at whatever cost“ (keine Wahrheitsfindung um jeden Preis). Instead, the law acknowledges that there are circumstances where someone cannot be reasonably expected to disclose his or her knowledge. German procedural rules grant the witness the right to refuse testimony in these — limited — scenarios. In German civil litigation, the relevant grounds to refuse to testify are laid down in:

Thus, German law protects a witness against self-incrimination, as well as against conflicts due to the witness‘ close personal relationship to one of the litigants. The witness shall not be forced to harm him-/herself or a relative, spouse or fiancé. Even former spouses and civil partners are protected under German law.

The second group of individuals allowed to refuse testimony under German procedure rules are those who are bound (as well as protected) by professional confidentiality obligations, i.e. physicians (Ärzte), clinical psychologists (Psychologen), attorneys-at-law (Rechtsanwälte), tax advisors (Steuerberater), certified public accountants and autitors (Wirtschaftsprüfer), journalists, members of the clergy, German civil servants (Beamte), German judges (Richter) and others who are obliged to secrecy. The German wording is „zur Berufsverschwiegenheit gesetzlich verpflichtet“.

The details on whether the refusal has merit and exactly how far the right to refuse testimony reaches in a specific case can be complex, especially with regard to the second group of individuals. While a spouse or relative has a very broad right to refuse testimony and there is usually not much to discuss, matters are more complicated with regard to those witnesses to whom confidential facts were entrusted by virtue of their profession or public office. For example: has the witness learned the information in his/her capacity as a lawyer or clergy man? Has the client released the physician or lawyer from the confidentiality obligations? If so, is the professional or member of the clergy merely permitted or also obliged to testify? All these questions can initiate interlocutory proceedings to determine whether the witness‘ refusal to give testimony is lawful or not (see s. 387 para. 1 German Civil Procedure Rules).

Inform the Court early on

Any witness who intends to refuse to give testimony in a German court of law should not spring this upon the judge at the last minute. Instead, the witness should respond to the summons immediately by submitting to the court the facts on which he or she is basing the refusal to testify. Depending on the circumstances, it may be necessary to substantiate these facts. For example, if the refusal is based on being a the fiancé of the defendant. In other cases, especially family relations like parent-child or sibling, the right to refuse is evident and does not need to be substantiated by further evidence.