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.

What the judge dictates to the court secretary (or into the voice recorder) is usually a very condensed version of what was actually said in court. A five minute statement given by a witness may easily be summarized by the judge in three meager sentences. If that strikes you as a crude and inaccurate way of keeping records of oral hearings, many German litigation lawyers will agree with you. Still, that it the way it is done in German civil courts. To avoid important aspects of a witness statement being lost, the party’s lawyers will have to pay close attention to how the judge summarizes a witness statement and also whether the judge gives that statement a certain “spin”. If so, the lawyer will object by telling the judge that he or she may have omitted something. In some cases, a German trial lawyer may even demand that a certain specific statement by a witness shall be recorded verbatim. But it is ultimately up to the German judge whether that will actually be done. You can imagine that frequent objections made by a lawyer about the way a judge sums up a witness statement are not extremely welcome. So a trial lawyer should only criticise a judge if a substantive and relevant aspect needs to be corrected.

However, a lawyer must not be shy. Because from what a judge dictates into the minutes, an experienced German litigation lawyer can sometimes infer which side a judge leans towards and what the later judgement will be. Thus, if a lawyer gets the feeling that a judge only “collects” parts of the witness statement which back one version of events and tends to ignore other aspects, the lawyer shall attempt to direct the judges focus on these other aspects and ensure that these parts of a witness statement are recorded in the minutes as well.

To be fair, German civil procedure rules require the judge to ask each witness to carefully listen to what the judge dictates into the court hearing minutes and to confirm whether this is a fair and complete summary of the statement the witness has made. However, in practice, witnesses are nervous and just want to be done with the hearing. Also, they sometimes do not dare tell the judge that he or she “has got it wrong”. Thus, what ends up in the written minutes of a German civil case hearing (in German called “Niederschrift der mündlichen Verhandlung” or “Protokoll”) is sometimes only a rough and superficial roundup of what a witness has stated. Any side information about the actual language used by the German witness is lost, because the judge usually paraphrases what the witness has actually said in more elaborate and “clean” language, i.e. stammering, long thinking pauses and any “ehms”, “ahs” and “hms” are completely lost.

The written minutes (Niederschrift) are sent to the parties of the proceeding, usually within one to three weeks after the hearing. If a party or their legal counsel find that the minutes are incorrect or incomplete, the German Civil Procedure Rules allows each party to address the court and request a correction of the minutes, see s. 164 Zivilprozessordnung.

Why are there no verbatim court records in German civil cases?

Well, the reason is not that German court officials are lazy. The German procedural thinking is, however, that the civil judge knows what in a witnesses statement is relevant and what is not. Since there is no jury in a German civil (or criminal) case, there is no need for keeping verbatim records of what a party or a witness has stated. The judge (or panel of judges) is the only one who matters for the outcome of the lawsuit. Thus, according to German civil procedure rules, we can leave it up to him or her to decide what must be taken down in the hearing minutes. As we have see above, the parties’ legal counsels do have some influence and act as a safeguard against entirely false or incomplete court hearing minutes. In practice, a German judge will take personal handwritten notes about each witness. In these notes, the judge may register why the witness is credible or not, where the witness has contradicted himself etc. This will then find its way into the actual judgment.

Going to court in Germany

If you are a U.S. lawyer considering civil litigation in Germany, you will find yourself in a completely different procedural environment. Things you take for granted in US civil lawsuit simply do not exist in Germany. Some things you would do in a U.S. civil lawsuit may even backfire in a German courtroom, for example providing written witness statements. Taking legal action in Germany thus requires extremely careful planning together with an experienced German trial lawyer who also understands the way a U.S. litigator thinks.

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

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