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
Checklist & Terms of Engagement
If you consider hiring the German law office Graf & Partners to represent you in a German civil lawsuit, we recommend to carefully read the below checklist before you contact us with any details of your case. The information below will give you a better idea of whether Graf Legal is the right law firm for your German legal dispute.
- We exclusively take on German civil and business litigation cases. While we may be able to recommend criminal defense lawyers, Graf & Partners themselves do not take on criminal cases. Our lawyers are licensed to practice throughout Germany and in all German civil courts. Since our law office is located in the south of Germany, you may incur significant travel expenses if you wish us to represent you in a case which is heard before a court in northern Germany. In high profile international cases, however, such travel costs are usually considered to be insignificant.
- Before we can officially take on your case and open a file, we need to do a conflict of interest check and adhere to the Know Your Client (KYC) requirements. This means that we will need the full name, residential adress and a scan of the passport or official ID of the person(s) who wish to engage us as their German legal counsel. We will also need the details of the opponent in order to check whether the opponent is already on our client list.
- Please send a short summary of the facts of your case and let us know which actions you wish us to take on your behalf. Please note that our law firm receives dozens of enquiries each day, so the best way to get your case evaluated by one of our lawyers is if you provide us with a concise description of what the dispute is about. The better you can describe your problem, the faster we can get back to you with a decision whether we are able to take on the case or not. Please have realistic expectations with regards to turn-around times. Some clients wait until the last-minute and then expect immediate attention to their matter, which isn’t always possible and – if possible – will trigger significantly higher legal fees.
- Lawyer fees and costs: Our attorneys bill by the hour, usually anywhere between EUR 280 and EUR 400 net per full hour. We usually ask for an upfront payment for legal fees of, depending on the scope and legal complexity of the matter, at least EUR 1,000 up to EUR 20,000 plus German VAT where applicable. Please note that under German law, minimum statutory lawyer fees do apply in all forensic matters. Any German lawyer is legally obligated to charge at least these baseline fees which are calculated based on the “value of the case”, i.e. the amount in dispute. These minimum fees under the German Lawyer remuneration Act (Rechtsanwaltsvergütungsgesetz) will have to be charged regardless of how much time was spent on the case. More details in this post: Basic Principles of Legal Costs in Germany
- Our minimum fee per case: The absolute minimum fee which we will charge in any litigation matter is EUR 1,000 net. We are a highly specialised boutique law firm with a limited number of expert international litigation lawyers. Therefore, we are unable to take on small claims cases.
- Please note that contingency fee agreements are prohibited under German law, so please do not ask us to take on your case on a “no win no fee” basis. The answer is no. More on the German contingency fee ban in this post: No Win No Fee Agreements are Void in Germany
- Court fees: If you wish to initiate a German lawsuit, you will also need to pay court fees. These fees are due when we file the action on your behalf (Klageeinreichung). The court will not serve the complaint to the defendant unless and until you have paid the court fees.
- Client paperwork: Once we have made sure that we are able to take on your case, we will ask you to sign a fee agreement and a power of attorney form. Comprehensive letters of engagement are neither customary nor required under German law, because all clients are already well protected by German statutory law and professional lawyer regulations. More in this post: How to Retain a German Lawyer
If you decide to instruct our law office based on the above terms, we are looking forward to assessing your case and to representing you in a German court of law. Visit www.GrafLegal.com, the German civil litigation experts with 20+ years in international civil, business and corporate litigation.
Why are German Wills often successfully challenged and voided?
As in most jurisdictions, a German Last Will can be challenged if the testator, at the time of making the Will,
(i) lacked mental capacity (in German: if he or she was “testierunfähig”); or
(ii) was under undue influence, e.g. pressured or threatened (“bedroht”); or
(iii) was under some false impression (“im Irrtum”), i.e. erred about certain circumstances.
These are the most commonly known standard legal reasons based on which a Will can be made void. German inheritance law, however, has a few surprises to offer.
More legal grounds for challenging Wills under German Succession Laws
Under German inheritance law, there are additional grounds for challenging a will which are unknown to most Common Law systems. These are the so called “Anfechtungen wegen Übergehung eines Pflichtteilsberechtigten”, section 2079 German Civil Code (Bürgerliches Gesetzbuch).
These rights to challenge and make void an otherwise perfectly fine German will often surprise and take aback even German beneficiaries and their lawyers. The idea behind these statutes is to protect the interests of the surviving spouse and of children if the Will has been set up at a time when the testator was not yet married to said spouse or the (additional) child has not been born. In these circumstances, if the testator does not amend, i.e. update, his or her “old” will, the spouse or child not mentioned therein can make this will void by appealing to the German probate court (Nachlassgericht), which must be done within certain deadlines.
The details on how to formally challenge a Will in Germany are explained in this blog here. and in the post “Contentious Probate in Germany”
More on litigation and legal costs in Germany:
- 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
- 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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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
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:
- 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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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.
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:
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 really 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.
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.
Checklist for (uncontested or contested) Divorce Proceedings in Germany
The German statutes dealing with the divorce of a marriage and the substantive requirements for the same are s. 1564 to 1568 German Civil Code (Bürgerliches Gesetzbuch, BGB). The specific civil procedure rules applicable to divorce cases in Germany are contained within s. 133 FamFG (German Code on Family Matters) which also refers to certain sections of the German Code of Civil Procedure.
Different sets of procedural rules apply to the various aspects of a German divorce (e.g. rules for the divorce itself, for maintenance, property separation, pension redistribution, child custody etc.). This makes it somewhat tricky to identify the correct set of rules, even for German lawyers if they are not experts in family law matters. In case you think we make German divorce procedure rules sound overly complicated, here is a typical Family Procedure statute. Check it out for yourself:
How to get Equitable Relief (Equitable Remedy) under German Law
Equitable relief, also known as equitable remedies, is a legal concept which was historically developed by the old English courts. Thus, the terms equitable relief and equitable remedy are only being used by lawyers in common law jurisdictions where such judicial remedies are still available today.
In practice, seeking equitable relief means that a Plaintiff asks the court to award a non-monetary judgment against a Defendant. For example, an order requiring the Defendant to do something, i.e. to perform a specific act (thus the legal term “specific performance”); or an order requiring the defendant to refrain from doing something (this is typically called an “injunction”, in German “Unterlassung”).
Contracts drafted by lawyers in common law jurisdictions contain Equitable Remedy Clauses as standard boilerplate clauses. Lawyers from non-common law jurisdictions (like Germany, France or Spain), usually do not really understand what to make of these terms, especially since the expression “equitable” is not self explanatory. Still, German business executives sign contracts and CDAs which contain such equitable remedy clauses all the time, often without having a real clue what this would mean in case of a legal dispute.
The situation becomes especially confusing if a German lawyer uses an English language contract template (which is based on English or US law and thus contains such equitable relief clauses) and then simply modifies the template by making the contract subject to German laws and giving German courts exclusive jurisdiction. This happens all the time in German-British or German-US business relationships. Sometimes applicable law and jurisdiction clauses are changed at the last minute when the parties want to close the deal and the executives think it a good idea to agree on German, Austrian or Swiss law as a “compromise”. In all these German speaking countries, no lawyer or judge will know what equitable relief is. What will happen in an international legal dispute, if the business partners must go to a German (or Austrian or Swiss) court of law and find such an equitable remedy clause in the relevant agreements?
The System of German Civil Law
German law is a traditional civil law system based on Roman law principles (more precisely on the eastern roman emperor Justinian’s Code) and also heavily influenced by the Napoleonic Code. In modern times, obviously, European Union law has modified German civil law, especially in the areas of contract law, business law and consumer rights. In contrast to the common law systems of Anglo-American jurisdictions, the German law system is based on a comprehensive compendium of statutes, i.e. thousands of laws (Gesetze) and regulations (Verordnungen). We explain the German statutes most relevant for German civil litigation in this post and in our free brochure “Guide to Civil Litigation in Germany:
German Judicial System
While, strictly speaking, German judges are not bound by the judgments of other courts (precedent), not even by the rulings of the Bundesgerichtshof (BGH), i.e. Germany’s Federal Court of Justice, the judgements by the German higher courts (Oberlandesgerichte and BGH) are usually being followed by German judges in the lower courts. Thus, where the facts of a case are similar to a case which was already decided by an Oberlandesgericht or even the Bundesgerichtshof, a court will usually not depart from the view of the OLG or BGH. This chart shows how the German civil courts are structured and how many judges hear a German civil lawsuit:
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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Checklist: Effective Defense against a Civil Action in Germany
In this post, we explain how to best react and defend your case when you find yourself at the receiving end of a German civil lawsuit. More specifically, how to avoid making major blunders right at the early stages of German civil proceedings.
Rule 1: Do not ignore letters from a German civil court
This piece of advice appears obvious but, in our experience, it nevertheless happens quite often: Many clients tend to either fully ignore such legal correspondence or to at least delay dealing with the matter until important procedural deadlines have already expired. Such deadlines, for example for the submission of a formal reply and for the application to dismiss the case, are set by the German civil court in the very first court order. These initial deadlines set by the German court are so called “Notfristen” which means that they cannot be extended and you can not be reinstated if you miss to adhere to them.
Thus, whatever you will eventually decide to do about the lawsuit, you must first ensure that you fully understand what the letter from the court (or from the opponent’s lawyer) says and what the relevant time limits are. Such initial letters from a German civil court typically inform you about the fact that you have been sued in Germany and for what. They usually also contain either a specific calendar date or a period of time (e.g. two weeks from the date of service of the letter) within which you need to respond to the court.
At this stage of the proceedings you should:
Workshop on German Civil Procedure for U.S. Litigation Lawyers
Know and effectively use the tools of German Civil Procedure
Due to Brexit, many international businesses shift their focus from Britain to Germany when it comes to contract drafting in general and jurisdiction clauses in particular (see brochure “Contracts in Continental Law“). Why? As long as Britain was still a member of the EU, many German, Austrian and other continental European CEO’s were willing to accept English law as well as the jurisdiction of English courts. This was often a compromise reached in the negotiations between the contract lawyers of the U.S. and the German parties.
Those days are over. After Brexit, European Union law does no longer apply in Britain, which makes it pretty much unacceptable for the German (Austrian, French etc) side to accept English law as the governing law for the business relationship. Instead, the contract lawyers of businesses located in continental European countries insist more and more on their domestic substantive and procedural laws to apply. Therefore, United States law firms that work internationally will be increasingly confronted with cross-border civil and commercial litigation cases that take place in Germany or Austria.
Bootcamp for practicing U.S. attorneys and in-house lawyers
Our 2 day seminar “How to litigate in Germany” introduces United States trial lawyers to the very different world of German civil procedure. The focus is on making non-German litigators aware of the many differences compared to a U.S. civil lawsuit, thus enabling them to effectively collaborate with the German trial lawyers in an international U.S.-German civil case.
Experienced German litigator Bernhard Schmeilzl cuts right to the chase: No boring lectures on theoretical isues, but hands-on practical advice on how to win civil lawsuits in Germany. Including some tips and tricks on how to unnerve your adversary by “being American on purpose”, for example by naturally applying certain U.S. procedural tools and tactics which, normally, are not used in a German lawsuit (written witness statements or even video depositions). If smartly used, such an approach can somewhat unhinge the opponent.
Who is the workshop for?
United States lawyers who wish to advise their U.S. clients with business ties to Europe on the basics of how to litigate in Germany (and Austria). U.S. law firms that provide legal advice to German business clients in order to understand their German client’s expectations with regard to litigation and arbitration. United States lawyers who are dealing with international litigation and who strive to better understand the tactics and strategies in a German civil case. American legal scholars with an interest in the practical side of German civil litigation.
What does the workshop cover?
The key topics we explain and discuss in our German civil procedure workshops for United States litigators are:
How to litigate a personal injury claim under German civil law
The general legal requirements to successfully sue someone in Germany based on tort are set out in title 27 of the German Civil Code, sections 823 et seqq. But don’t get your hopes up too high! In comparison to the USA and Britain, German courts usually award significantly less money when it comes to damage claims. The amount of compensation for pain and suffering (Schmerzensgeld) which is granted by German civil courts in personal injury cases is ridiculously low in the eyes of a U.S. litigation lawyer. A severed thumb, for example, “gets you” roughly $5,000 to $10,000.
The concept of punitive or exemplary damages is entirely unknown in Germany. Class actions, which U.S. lawyers take for granted to be available in cases like the German diesel scandal, are also not available under the German civil procedure rules. And don’t let anyone tell you something else: The new German litigation tool “Musterfeststellungsklage“, which was introduced in 2018 and which is sometimes — misleadingly — referred to as “German class action” (Sammelklage), is something entirely different and must not be confused with a U.S. style class action. The German Musterfeststellungsklage is only available in very limited circumstances and the plaintiff can only be a consumer protection organisation (Verbraucherschutzorganisation). And even if the consumer protection organisation is successful with the Musterfeststellungsklage, each individual claimant must still go to court to have the concrete damages of their individual cases assessed by the local court. The Musterfeststellungsklage ist only the first step, the actual value of the claim is determined in a second, ancillary law suit. All this makes the German “class action” a rather frustrating instrument.
Back to normal tort cases in German civil courts: We have explained some specific aspects of German personal injury and tort claims on our civil law blog Cross Channel Lawyers (enter “tort”). This current post now demonstrates the general legal test (Prüfungsschema) which a German litigation lawyer or a German judge uses to assess the merits of a tort case.
