on Litigation in Germany
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.
Who's talking?
German trial lawyer Bernhard Schmeilzl heads the litigation team of Graf & Partners LLP, a German law firm for Anglo-American clients.
Get in touch
Call +49 941 463 7070 or write to
mail@graflegal.com
in case you need German legal counsel.
Latest Articles
How to litigate in Germany
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: read more…
The Requirement of an Oral Hearing in German Civil Procedure
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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 : read more…
No Verbatim Records of Court Hearings in Germany
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. read more…
Checklist German Tort Claims
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. read more…
English Language in a German Lawsuit?
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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? read more…
“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
German Statutes
All relevant Codes of Procedure and more for German Lawyers.
Pre-Trial
How to prepare for German civil litigation. Pre-action requirements.
Filing a Petition
How to file a German lawsuit: formal requirements, tactics and strategies.
Settlements
Know the benefits and risks of settling a German legal dispute.
Taking Evidence
No jury, no deposition, no cross-examination. Be prepared for differences.
Court Hearings
How to prepare for and what to do in a German trial court hearing.
Appeals
What are the options if a German court has ruled against you?
Legal Costs
Everything you need to know about German Court and Lawyer Fees.