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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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.
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.
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:
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:
You want your day in German Court? Don’t get your hopes up too high!
How important is the oral hearing stage in German civil litigation?
When you read the relevant sections of the German Code of Civil Procedure (Zivilprozessordnung) one gets the impression that in a German civil case the parties will extensively lay out and discuss the case in front of the judge. Section 128 ZPO, which is headed “Principle of oral argument” states:
(1) The parties shall submit their arguments regarding the legal dispute to the court of decision orally.
More specifically, section 137 German Civil Procedure Code sets out the following :
German Court Records: The Judge decides what goes on Record
How do you order a full transcript of a German court hearing? Well, that is a trick question in two respects. First, because German civil court records are not public. Second, because there are no such full transcripts of court hearings. In German civil cases, no verbatim records of hearings, witness statements or other judicial proceedings are being made. Thus, you will not find a U.S.-style court reporter or stenographer in a German civil courtroom.
What court hearing minutes are there?
German Civil Procedure Rules (Zivilprozessordnung) cover the issue of how official court hearing minutes shall be taken in sections 159 to 165. According to section 160a ZPO:
The content of the record of the hearing may be noted in a usual form of shorthand, by using comprehensible abbreviations, or by recording oral statements on a sound or data carrier.
This shows that, instead of a court stenographer taking a verbatim record, the judge dictates a summary of what the parties or the witnesses have stated to a court secretary (Justizsekretär or Justizfachangestellte). Sometimes, especially in lower courts, there is not even a court secretary, just the judge and his/her voice recorder.
Translation costs in international litigation can exceed court and lawyer fees
In a legal dispute between an American or British business on the one side and a German business on the other side, the first things lawyers usually look at are jurisdiction, venue and applicable law. The party that finds itself having a “home game”, i.e. the party litigating at their local court, usually feels they have a strategic advantage. And indeed, if a lawsuit takes place in one’s own country and the applicable law is the law one’s own employees, inhouse counsels and go-to litigation lawyers already on retainer are familiar with, this makes matters easier.
However, there is one aspect which is often overlooked when international contracts are drafted. That’s the issue of procedural language, i.e. the simple question: What is the language of the civil court the parties have chosen? This post explains why the procedural language of the competent court is just as important as applicable law and jurisdiction itself.
Court language can be a huge cost factor
Let’s assume I represent a German company which manufactures high tech equipment and exports the same to the USA through a distributor in California. When the contract was negotiated a few years ago, my German client managed to get the US distributor to accept the jurisdiction of German state courts and German law to apply in case of a legal dispute between the parties. Sounds great, right? So, where is the problem for the German plaintiff?
Lawyer being a necessary witness is not grounds for disqualification under German CPR
Can a trial lawyer in a civil lawsuit act as a witness for his or her own client? At first glance, the whole idea of lawyer testimony in his or her own lawsuit goes against the grain of what seems the right allocation of roles and responsibilities in a civil lawsuit.
However, what if the party’s lawyer is the only person who can give testimony about a specific fact. Must the client then drop that trial lawyer in order to be able to call him or her as a witness? This post explains the differences in civil procedure rules of Germany, the USA and other common law jurisdictions with regard to the issue of advocates acting as witnesses in the same trial.
What is the situation for U.S. trial lawyers?
The American Bar Association (ABA) Model Rule 3.7 prohibits a U.S. lawyer to act as advocate at a trial in which that same lawyer is likely to be a necessary witness. There are some exceptions to that rule, but the principle stands. Most states in the USA have adopted identical or similar rules for trial lawyers. The idea behind this rule is that the jury shall not be confused or prejudiced by a lawyer being also called as witnesses during trial. As a rule, the roles of acting as an advocate for one party and at the same time being a witness shall not be combined.
Short guide to contentious probate procedure under German law
German succession laws as well as probate procedure are very different from those of Common Law jurisdictions. This is mainly due to the fact that German inheritance law does not know a personal representative. Instead, all rights and obligations of the decedent are automatically transferred onto the heir (successor) or the community of heirs, if more than one. My separate blog Cross Channel Lawyers explains the details of German inheritance law, German non-contentious probate, contentious probate (i.e. the rules on how to challenge a will), as well as German gift tax law in dozens of posts (see here).
Non-contentious German Probate (Erbscheinverfahren)
If no one does challenge a will, the standard approach to obtaining German probate is the non-contentious probate procedure, the so called Erbscheinsverfahren (section 2353 German Civil Code). This non-contentious probate (more) takes place at the German Amtsgericht (Circuit Court) in the city or district where the decedent had his or her last place of residence. The rules of procedure for this standard, i.e. non-contentious probate, are those of the FamFG, which is short for “Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit”, i.e. the German Act on Proceedings in Family Matters and in Matters of non-contentious Jurisdiction. More on the various German procedure rules in the post: German Statutes relating to Civil Litigation
What are the Rules of Evidence in Germany?
In a German civil lawsuit, a relevant fact must be proven by the claimant, or more precisely by the party bearing the burden of proof, if the defendant disputes the alleged fact to be true. For details on who bears the burden of proof and what needs to be done to convince the court see the post: Standard of Proof in German Civil Litigation.
Types of Evidence admissible in German Civil Courts
In sections 355 to 370, the German Code of Civil Procedure (Zivilprozessordnung, ZPO) lays out some general rules on how a German civil court takes evidence. The court (be it a single judge or a judiciary panel (see here: GERMAN COURT SYSTEM) determines:
- which alleged facts are still remaining in dispute after the parties have exchanged their briefs (“verbleibende streitige Tatsachen”, also called “Streitstand”);
- who must produce the evidence on these disputed facts; and
- how much time is this party granted to submit sufficient evidence.
With regard to all this, the German civil court issues a so called Beweisbeschluss, i.e. a court order on the concrete evidence to be taken, section 358 German Code on Civil Procedure. The content of this Beweisbeschluss can, for instance, be an order to hear a witness or the decision by the court to instruct an independent expert (Sachverständiger) to provide the court with an expert opinion (Sachverständigengutachten).
