German Civil Procedure - A Blog For Litigation In Germany

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on Litigation in Germany

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Where is my Jury?

Everything you know about litigation as a U.S. lawyer is wrong for a German lawsuit. Brace yourself for a court room culture shock.

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German trial lawyer Bernhard Schmeilzl heads the litigation team of Graf & Partners LLP, a German law firm for Anglo-American clients.

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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.

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.

No Process Server Anywhere! How do Germans serve Legal Documents?

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.

Secondly, legal documents in Germany are simply sent by post. In most cases even by regular mail, not even registered mail (Einschreiben). In other words: Germans still have complete trust in their postal service.

Believe it or not, even in case of registered mail, the small delivery receipt issued by the German Postal Service is all the party sending the registered mail can show as evidence. To complement this delivery slip, the German paralegal or assistant who sent the registered mail, makes a note in the case file on what day which documents were sent. But all this only proves that the law firm has sent the documents. What the mail man has actually done with the documents is not officially recorded anywhere.

In the rare cases where German civil procedure rules demand formal service by way of personal delivery, these legal documents are delivered by a German bailiff (Gerichtsvollzieher).

How to serve Germans with Court Papers from the USA, Canada or the UK?

In common law jurisdictions, Plaintiffs must usually present to the court as evidence of service a more formal document than a simple delivery slip issued by a courier or the German postal service. For a US or British lawyer who needs to serve an official legal document in Germany, working with a German bailiff may, however, be a frustrating experience because German bailiffs are notoriously slow, hard to reach and do not always speak English. Furthermore, they will not be willing to issue an individual proof of service notice, much less in English. Instead, they will use their rather cryptic German service protocol form (Zustellungsprotokoll). This form will in many case not satisfy the US or British courts because it does not contain the necessary information what exactly the German bailiff has done in order to attempt personal service to the German defendant.

Thus, the options are to try to instruct the local German bailiff, hope that he/she does speak English and is willing to issue an actual letter to you as proof of personal service. The costs are usually around EUR 400 to 800 net, i.e. plus VAT plus disbursements for copies, translations etc.

If instructing a German bailiff does not work, the alternative approach is to contact an English speaking German lawyer in the area where the defendant lives and explain to said lawyer what you need in order to satisfy the US, Canadian or British requirements for serving official documents. If you are lucky, the German law firm will agree to send a reliable paralegal or intern to the address where the defendant lives to effect a personal service by handover of the documents.

Don’t forget Translations, Apostilles etc

Depending on whether the recipient in Germany is known to understand English, the legal documents must also be served together with a certified translation into German. If such a legal requirement to also serve an official translation of the documents is disregarded, the recipient may be entitled to refuse service of the document. But this is for the US or British litigation lawyer to decide whether the domestic court will require evidence that an official translation has been added. The same is true for the question whether documents must be certified and/or legalized (e.g. The Hague Convention Apostille).

Does Graf Partners LLP serve Documents in Germany?

Well, if there is no other way. In some cases, our firm will indeed serve legal documents for our international clients or partner law firms abroad and provide them with official proof of service, but the costs for this are significant. We charge at least EUR 700 net plus disbursements. If an affidavit of service by a German process server is required, the fee is EUR 900 net plus disbursements.

More on serving court papers and other legal documents in Germany is explained in these posts: PROCESS SERVER IN GERMANY and SERVICE OF COURT DOCUMENTS IN GERMANY

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

How to sue (the right) German Company or Corporation

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.

Why? Because the German bailiff (Gerichtsvollzieher) and the German court competent for seizing assets (Vollstreckungsgericht) will refuse to take any actions of enforcement (Zwangsvollstreckung) based on that judgment as soon as they realize that he Defendant’s name is incorrect or unclear. And they will realize because the Defendant will now object and bluntly state „that’s not me on the German judgment“.

When filing a lawsuit against an German business, be absolutely certain to use the correct company name of defendant

It is, therefore, a rather costly and embarrassing mistake when a foreign, i.e. non-German, litigation lawyer who files a complaint against a German legal entity is a bit careless about the defendant’s legal name or/and business address.

Even if the Plaintiff’s lawyer is not being sloppy, mistakes can easily be made, because many companies only give a short version of their actual company name on their stationary and on their website.

If a lawyer does not verify the full company name with the German company register before filing the lawsuit, the damage is done. Naming the wrong party is particularly dangerous when the Defendant is part of a group structure (in German called “Konzern” or “Unternehmensgruppe”).

Big corporations like Siemens, BMW or Volkswagen, for example, have hundreds of subsidiaries and project companies. Sometimes, those subsidiaries have very similar names and the difference is only one letter, one figure or the added name of a town. So, “XYZ Project GmbH” is not necessarily identical with “XYZ Project GmbH, Munich”.

The ending tells you the legal nature of the German business

Also, the ending of the company name is extremely important because that annex to the company name (which is usually an abbreviation)tells you whether the German business is actually a corporation, a limited liability company, a partnership or some other legal entity. It is extremely easy to make a mistake here!

Don’t miss! One Letter can be a Game Changer

Let’s use my own law firm as an example. On our websites, blogs and brochures, our law firm uses the name “Graf Legal”. This is, however, only the unofficial trade name for our US-German law department. The actual and legally correct name of our law office, as filed with the German company register, is this:

Graf & Partner Partnerschaftsgesellschaft mbB

The above business is, however, an entirely different entity compared to:

Graf & Partner Partnerschaftsgesellschaft mbH

Did you even notice the difference between the two? The diffference is only in the last letter. With regard to the first entity, i.e. in “Partnerschaftsgesellschaft mbB”, the “mbB” stands for “mit beschränkter Berufshaftung”, i.e. „limited professional liability“, which means that the entity is a German partnership of professionals (in this case lawyers) and damage claims based on malpractice against these lawyers are capped. For any other claims and debts, all law firm partners remain fully liable with their entire fortune.

In contrast, “Partnerschaftsgesellschaft mbH” is something entirely different, because “mbH” stands for “mit beschränkter Haftung” which means that this is not a partnership, but a company and the entire liability of the company is limited, regardless of what the claim against the company may be based on. Thus, one single letter (B or H) makes the difference whether you sue a German limited liability partnership of natural persons or a German company.

How to research the correct name of a German business

As shown above, you cannot rely on the defendant’s website or stationary. Instead, you must do a proper search on the German company register (Handelsregister) in order to find out the official legal name of the company you want to sue, i.e. the legal name under which it has been incorporated and is officially registered with the German company register. Also, you should use the Germany company’s official registration number in the petitions to the German court.

The first step would be a basic online name search, which is explained below. In larger cases, you should obtain a complete extract on the company from the German company register (Handelsregisterauszug). These German company register documents show you the company history with regard to directors, shareholders, office addresses etc. In addition, you can check the financial history of the company by inspecting their annual financial reports. This does not work for all German businesses, however, only for companies, corporations and certain partnerships.

We explain how to read a German company register extract in this post here.

Another Example

In order to practice an online search, let’s use the example of the German company which uses “airstage” as the trade name on their website. The contact informatiuon they give on their website looks like this:

Now, if you take the information on their website at face value, you will probably file a lawsuit against a German business by the name of “airstage”. But is that their actual legal name? You can research this for yourself by visiting the official German company register website Unternehmensregister. Big surprise: The search for “airstage” in the official company register comes up empty:

If you then do some more research on the company, either by using their address or the company number, you will find that the official company register record of the defendant shows that the actual name of the company is “Effekt-Technik GmbH”. The term „airstage“ does not appear in the official records at all.

This detail is extremely important because if you rely on the website and sue against “airstage”, all the German the court documents as well as the final court order will also name “airstage” as the Defendant. This will most certainly create procedural problems later on, either when it comes out during the civil procedure or when you wish to enforce the court order, because it is simply not the correct company name and no company by the name “airstage” does exist.

Now, if the name issue comes up during the ongoing civil procedure, the German Defendant will probably not be able get away with arguing that the lawsuit does not refer to them, because they use this name on their official website http://airstage.de/kontakt/ Still, even if it would cause merely a procedural hiccup by generating a query from the German court, this may costs a few weeks.

The problem is indeed greater if the court has actually already handed down a judgment which designates the defendant with an incorrect name and this judgment has already become binding. Then chances are, you have obtained an entirely useless judgment because it will not be enforceable.

In order to avoid all such confusion, the Plaintiff’s litigation lawyer, in the above example, should use the following company details, especially the company register number:

Effekt-Technik GmbH, a limited liability company established under the laws of Germany, registered with the German Company Register kept at District Court (Amtsgericht) Stuttgart under the company register no. HRB 225042. The official company address is: Nürtinger Str. 64, 72667 Schlaitdorf, Germany. The company is being represented by their company directors (Geschäftsführer) Mr Rainer Mugrauer and Mr Günther Mugrauer.

If the petition to the German court specifies the company like this, there is no room for error whatsoever.

Long Story short

Before filing a complaint in a German civil lawsuit, make absolutely sure that you have researched the complete and accurate company name as well as their correct current address and the correct names of the current partners or company directors.

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.

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

Perjury, what Perjury? German Witnesses and the Oath

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:

„What, if anything, do you recall about the meeting between X and Y on that day?“

It is only at the end of the witness hearing, i.e. after the judge has asked all questions which he or she deemed relevant, that the party’s legal counsels are then allowed to pose follow up questions (s. 396 para. 2 and 3 German Code of Civil Procedure). If a legal counsel gets too aggressive with this, the judge may step in and tell the German lawyer that the court does not consider the question relevant or that the question has already been answered by the witness. Judges usually give the lawyers some leeway and also let them ask additional questions even if the relevance is not immediately obvious. This also applies to leading questions (in German called Suggestivfragen): although not allowed under German civil procedure rules, German lawyers often pose such leading questions and the judge usually lets it slip. However, the court has the last say on whether a question is admissibleor not (s. 397 para. 3 German CPR).

Why are German Witnesses not put under Oath?

It fits the picture of this generally restrained and unaggressive approach of hearing witnesses in German civil trials, that a German witness is also very rarely put under oath (vereidigt). It would be considered a sign of general mistrust, if each and every witness would be put under oath even before he or she has started to give their testimony. Thus, under German law, a witness is generally being questioned without having to swear an oath. Much less an oath on the bible. Yet, the black letter law of German civil procedure rules does set out the circumstances under which a witness shall be put under oath in a German civil court.

According to s. 391 German code of civil procedure:

… a witness is to be placed under oath if the court believes this is mandated in light of the significance of the testimony, or in order to procure a truthful statement, provided that the parties to the dispute do not waive having the witness placed under oath.

At first glance, this reads as if most witnesses in a German civil procedure will be put under oath, especially if the judge has doubts about the truthfulness of the witness. Strangely, the opposite is true. Hardly any witnesses are put under oath (vereidigt). Not even when the judge believes that the witness has just lied to the court. This is due to statistical evidence and psychological studies which show that once a witness has begun to lie in court, he or she will almost never turn around and admit that they have been untruthful. Instead, they will stick to their story, even if it is clear to everyone in the court room that the testimony cannot be true and even if the judge thus threatens to put the witness under oath (which can be done after the testimony), which would raise the criminal charge from a simple „false testimony“ (uneidliche Falschaussage according to s. 153 German Penal Code) to a felony charge (Verbrechen) of „perjury / lying under oath“ (Meineid, s. 154 German Penal Code), the minimum sentence for which is one year in prison.

Never say never

Now, even if the majority of German civil judges tend to be unwilling to demand a witness to swear an oath, not all judges are the same. And, sometimes, even an otherwise laid back German judge can get angry if the witness tries to play the court for a fool too obviously. Thus, a smart trial lawyer can get the judge to make an exception to the „no oath practice“. An often successful strategy for this is to ask the court to summon the same witness again at a later date to question that witness about other aspects of the case or about new facts which came to light through the (false) witness testimony. At the same time, the court is asked to inform the witness that he or she will then be put under oath. That way, the witness has a few weeks to consider the situation and think about the consequences of keeping up the false statement. In my experience, the chances of the witness starting to backpedal are much higher if you give them some time to reconsider.

If the witness still keeps on lying, this is, of course, not without consequences, even under German law. If proven, the false statement is punished under s. 153 German Penal Code as „undeidliche Falschaussage“. Furthermore, the party that loses the German civil lawsuit can sue the lying witness for damages based on tort (e.g. in the form of accessory to fraud). Depending on the circumstances, lying in court can also constitute other criminal offences under German law (e.g. libel, slander etc.).

Practical Court Room Advice

Whenever you think it possible that a witness in German civil case may lie in the oral hearing, you should diligently prepare a strategy for that scenario. Collect factual evidence for you own version of events to prove the witness wrong. Then, in the actual court hearing, let the witness tell his or her story without interrupting right away. Do not immediately show to the witness that you know he or she is lying. That only makes the witness wary and more careful. Instead, use what I like to call an „Inspector Columbo“ approach, i.e. let the witness finish their version with as much detail as possible. Then raise certain issues which do not fit in his or her story. One by one and very calmly. Only at the very end of the witness questioning you might want to make it clear that you consider the witness an outright liar. Depending on the reaction of the witness, you may get the court to demand the witness swearing an oath after all.

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

“I can’t do any literary work for the rest of this year because I’m
meditating another lawsuit and looking around for a defendant.”

– Mark Twain

The Expert Law Blog Categories

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Where is my Jury?

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Latest Articles

Get the best of both worlds: a professional German judge in a non-public civil proceeding

Mediation / Arbitration at German High Courts

What are the advantages of German high court arbitration?

Here’s why you can’t find any Process Servers in Germany

Then how do German Lawyers serve Legal Documents?

How to serve Germans with Court Papers from the USA, Canada or the UK?

Don’t forget Translations, Apostilles etc

Does Graf Partners LLP serve Documents in Germany?

Related posts:

Avoid the #1 Litigation Blunder: Incomplete or incorrectly spelled Company Names of German Defendants

When filing a lawsuit against an German business, be absolutely certain to use the correct company name of defendant

The ending tells you the legal nature of the German business

Don’t miss! One Letter can be a Game Changer

How to research the correct name of a German business

Another Example

Related posts:

May a Witness in German Civil Litigation refuse to give Testimony?

Duties of a Witness under German Civil Procedure Law

Who can be a Witness?

Who may refuse to testify in German Civil Court?

Inform the Court early on

Related posts:

German Civil Court Judges rarely put a Witness under Oath

Witness Evidence in German Civil Litigation

Why are German Witnesses not put under Oath?

Never say never

Practical Court Room Advice

Related posts:

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