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III. Procedural Contrasts in Comparative Perspective - Учебно-методический комплекс по дисциплине Английский язык Курс


^ III. Procedural Contrasts in Comparative Perspective
To be sure, quite a few features of German civil procedure are in marked contrast to American practises. First there is the judge's [*pg 68] prominent role in the actual taking of witness testimony.23 This should not be overrated, however, because the judge, even though he serves as the examiner-in-chief of the witnesses, is prohibited from inducing them to testify on facts other than those for which they were named. Another characteristic of German and indeed Continental civil procedure is that no party is allowed to call as many witnesses as he pleases. There is no rule requiring all of plaintiff's witnesses to be heard before the defendant's witnesses, nor is there a compulsion to take proof on all the apparently contested issues at one sitting or to call first the witnesses nominated by the party carrying the burden of proof.

What the parties can do and will do is to nominate witnesses in support of specific factual allegations.24 It is then for the court to make an evidentiary order identifying the witnesses to be heard, describing with some precision the facts on which each witness is to be examined and fixing the order in which they are to be called. In making this evidentiary order the court will consult with the parties who will direct the court's attention to particularly cogent lines of inquiry. However, the final decision rests with the court whose discretion will be guided by a strict standard of relevance as well as by the principle that evidence is to be taken only to the extent and in the order most likely to result in a speedy disposal of the case.

If, for example, witnesses have been nominated for a factual contention, which the judge believes on legal grounds to be immaterial to the party's claim or defence, he will not allow the witness to be called. Nor will he order the examination of a witness in support of a factual allegation, which the judge finds is not really in dispute between the parties or which has not been specifically challenged by the opposition. If the court perceives that there is a matter that is likely to be determinative, it may confine the evidentiary order to that matter and await the results before issuing a further evidentiary order. Suppose that in a seller's action for the price the buyer's defense is, first, that no contract was formed; second, that the goods delivered were defective; and, third, that in any event the seller's claim is barred by the Statute of Limitations. In this situation it is within the judge's discre[*pg 69] tion to select the defense most likely to lead to a dismissal of the action, and to postpone consideration of the other defences.

In a brilliant, if controversial, article John Langbein characterised the German procedural system as one in which the gathering of the facts was entrusted to, and controlled by, the judge.25 In his view, judicially-dominated fact-gathering is the hallmark of the German system and constitutes the major "German advantage" as compared with the system prevailing in the United States. I am not sure whether it is wholly appropriate to describe the court's job as that of "gathering the facts". After all, it is the parties and their lawyers who will investigate the facts, discuss them with their clients, select what will be presented to the court, indicate means of proof, and thus "gather" the factual materials with which the court must work.26 This is why the German system is an adversarial system. However, once the parties have supplied the factual materials and the time has come to investigate the truth of the parties' allegations, evaluate the evidence, and find the facts on which the decision is to be based, the German judge has fairly strong control over the procedure.27 He may disregard proof offers, which, according to strict criteria of relevance, might safely be overlooked. Nor are there any binding rules on sequence, such as "plaintiff's case before defendant's case." Instead the judge is encouraged to range over the entire case and concentrate the inquiry on those issues most likely to result in an expeditious disposal of the matter. While the court can only call witnesses nominated by the parties, it does exercise discretion as to the order and number of the witnesses and plays a vigorous role in acting as the examiner-in-chief of the witnesses.

John Langbein's attack on American civil procedure and his praise for the German counterpart have stirred up a lively debate in this country.28 Some critics accept that strengthening the court's role[*pg 70] in the evidentiary process would save time and money, reduce the wastefulness and complexity of pre-trial and trial procedure, and cut down on the distortions inherent in the system of partisan preparation and production of witnesses and experts.29 They argue, nevertheless, that such a move would be incompatible with the traditional roles of lawyers and judges in this country and fly in the face of significant and ineradicable features of American legal culture.30 On the one hand, John Langbein has rightly admonished us not "to allow the cry of 'cultural differences' to become the universal apologetic that permanently sheathes the status quo against criticism based upon comparative example."31 On the other hand, cultural differences do explain something of why institutional and procedural differences arise in different legal systems and why transplanting legal institutions from one society to another may be more difficult in one case than in another. The important question is what weight to attach to this factor for present purposes. John Langbein's answer is: "Not much."32

But this is surely a point on which reasonable people may differ. The possibility of transplanting legal institutions is indeed one of the most controversial topics of comparative law.33 It is also a topic much ventilated these days in Europe. We are currently embarking in Europe on a process of unifying the contract law of the Member States.34 Although work on a Uniform European Code of Contract Law has not yet received the official blessing of the European Commission, the academic debate on what is surely the largest current comparative law enterprise in Europe is intense. In this debate, a small but articulate minority holds the view that each of the European nations is the product of a unique legal, political, and social history and that each nation's social and political values and goals are so[*pg 71] different that the unification of law in Europe, like the merger of the French, English and German languages, is a barren and pointless exercise and indeed a chimera.35

I do not share this view. There is today what Oliver Wendell Holmes might have called a far-reaching free trade in legal ideas in all that relates to economic activity, trade and transport, banking, and insurance. In these fields, the possibility of transplanting legal institutions and indeed of unifying the law should not be ruled out at the start because of supposed cross-cultural differences. However, we are concerned here not with business-related fields of substantive law, but with procedure. There is much to be said for the view that all rules organizing constitutional, legislative, administrative, or judicial procedures are deeply rooted in a country's peculiar features of history, social structure, and political consensus and as such are more resistant to transplantation. "Procedural law is tough law", said Otto Kahn-Freund. Since "all that concerns the technique of legal practice is likely to resist change" he concluded that "comparative law has far greater utility in substantive law than in the law of procedure, and the attempt to use foreign models of judicial organization and procedure may lead to frustration and may thus be a misuse of the comparative method."36

Must we accept this as the last word on the matter? Another distinguished comparative lawyer and proceduralist, Arthur von Mehren, reached a different conclusion. While not challenging the view that a procedural system's general structure and principal features express society's social and political values and goals he nevertheless said that "very real differences between first-instance procedural arrangements in the United States, on the one hand, and in France and Germany, on the other, derive much less from differences in social or political values or in institutional, sociological, or psychological assumptions than from the institutional fact of the concentrated or discontinuous nature of the trial."37

[*pg 72]

One salient characteristic of European civil procedure lies indeed in the fact that it is wholly unfamiliar with, and knows nothing of, the idea of a "trial" as a single, temporally continuous presentation in which all materials are made available to the adjudicator. Instead proceedings in a civil action on the Continent may be described as a series of isolated conferences before the judge, some of which may last only a few minutes, in which written communications between the parties are exchanged and discussed, procedural rulings are made, evidence is introduced and testimony taken until the cause is finally ripe for adjudication.38 Procedure in the common law jurisdictions, on the other hand, has been deeply influenced by the institution of the jury.39 Since a jury cannot be convened, dismissed and recalled from time to time over an extended period, a common-law trial must be staged as a concentrated courtroom drama, a continuous show, running steadily, once begun, toward its conclusion. This in turn entails a separate pre-trial process for the parties enabling them not only to gather the evidence that they may need at trial but also to prevent surprise by informing them of the details of all positions the opponent may advance when the controversy is ultimately presented to the court. This solution requires elaborate pre-trial interrogatory and discovery procedures because once the trial commences, there is no opportunity to go back, search for further information, and present it to the court at some later date.40

Clearly, elaborate pre-trial probing of the arguments of fact and law on which the other party proposes to rely provides a solution to the surprise problem. However, this solution is not without its cost. First, it is intrinsically duplicative. Witnesses are prepared, examined, and cross-examined during pre-trial, then prepared, examined, and cross-examined again at trial. Second, it tends to be overbroad. Only rarely can a litigator tell at the beginning precisely what issues and what facts will prove important in the end. Since the judge customarily has little contact with pre-trial investigation, he has no opportunity to signal what information he thinks relevant to his decision. As a result, litigators must strain to investigate and analyse everything that could possibly arise at trial. They tend to leave no stone unturned, provided, of course, as is often the case, that they can charge their fees by the stone. Because of their active role in the pre-trial phase, [*pg 73] lawyers typically have a greater understanding of the case than does the judge when the controversy is presented at the trial. It follows that lawyers run the show at trial and that they frame the issues, question the witnesses, and stage and present even uncontroversial facts as if in a drama. Since the judge comes to the trial with little more understanding of the controversy than he can have from the complaint and other documents filed with the court, he is hardly in a position to act as the examiner-in-chief of the witnesses and to confine the scope of the evidentiary process to those avenues of inquiry he thinks are relevant or most likely to resolve the dispute.

It would seem therefore that the institution of the jury is the cause of the strict segmentation of American procedure into pre-trial and trial compartments, and that this segmentation in turn is the cause for the waste and duplication of lawyer-dominated pre-trial discovery procedures. Strengthening the court's control over the evidentiary process would then be practicable only if the United States followed the example of most, if not all, major common law jurisdictions and abolished the civil jury. In England, trial by jury has almost disappeared from civil litigation except where a person's reputation is at stake, for example where he sues for libel,41 and the civil jury has also withered to insignificance in Canada42 and Australia,43 not because of dissatisfaction with its results, but because of the costs and inefficiencies imposed by it on the civil litigation process. Clearly, abandoning the civil jury or restricting its availability would be a most controversial matter in the United States. Not only is the right to trial by jury enshrined in the Seventh Amendment and in comparable state constitutional guarantees. There is also a substantial body of opinion that both the criminal and the civil jury are worthwhile bulwarks against biased, eccentric or incompetent trial judges and enable the public to take an active part in the administration of both civil and criminal justice.44

I do not think, however, that the civil jury is the only or even major villain of the piece. True, it is because of the jury that the trial [*pg 74] must be carried out as a single-episode courtroom drama, and it is because of the trial as a concentrated event that pre-trial discovery procedures are needed to handle the surprise problem. But it seems to me that discovery in the form practised today in the United States goes far beyond the mere prevention of courtroom ambush. Rather, discovery allows a party to search and indeed "fish" for information in opponent's and non-parties' hands under a very liberal standard of relevancy requiring only that the search be "reasonably calculated to lead to the discovery of admissible evidence."45 It has been said that it is possible and by no means rare in the United States for a plaintiff to bring a lawsuit in order to discover whether he might actually have one. Aggressive discovery in the American style is unknown not only in Continental procedure, but also in English procedure as well. Of course, all procedural systems must balance the importance of truth for the fact-finding process against the need to protect areas of business and personal privacy from unreasonable invasion. But not all systems will strike the same balance between the two goals. It is evident that the breadth of American discovery rules come down more heavily on the side of privacy in civil litigation. Judge Rifkind had a point when he said that "[a] foreigner watching the discovery proceedings in a civil suit would never suspect that this country has a highly-prized tradition of privacy enshrined in the fourth amendment."46

Nonetheless, I think an argument can be made for American discovery methods despite the excesses to which they are prone. Consider the type of case in which full-dress discovery proceedings will normally take place. In many of those cases the lawsuit is not only a dispute between private individuals about private rights, but also a grievance about the operation of public policy or the vindication of the public interest. In his famous book Democracy in America, Alexis de Tocqueville noted that "scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question."47 This observation seems to have lost none of its pertinence today. If a European lawyer looks at the contemporary legal scene in the United States, he is impressed by the extent to which court litigation, rather than legislation and administrative ac-[*pg 75] tion, is used as a means to cure defects in the structures and practices of important social institutions. Class actions are a good case in point. By allowing plaintiffs to sue for the aggregated damages suffered by many other similarly situated individuals, the class action provides an effective means of vindicating the rights of groups of people who individually would not have the strength to bring their opponents into court. In this sense, class-action plaintiffs may be viewed as private attorneys-general advancing and protecting substantial public interests. The Supreme Court has described treble damages actions under section 4 of the Clayton Act as "a vital means of enforcing the antitrust policy of the United States"48 and it is not the SEC, but the shareholders' derivative suit, that the Supreme Court regarded as "the chief regulator of corporate management."49 What surprises the European observer about American product liability litigation is not the preconditions for liability, which are just as strict in Europe as in the United States. What he finds indeed astonishing is the stupendous volume of litigation, the size of awards made to successful claimants, and the fact that it is not uncommon for many thousands of claims to be bundled together and dealt with in a single trial. All developed legal systems must ensure the safety of products in the interest of the consumer. It would seem, however, that Americans, with their traditional mistrust of governmental authority, rely not so much on the initiative of administrators or public prosecutors, but rather on private litigation as the chief regulator of corporate action in the product safety field. If this analysis is correct, a strong case can be made for the view that to the extent to which private litigation serves the vindication of a public interest, the parties must be equipped with robust discovery procedures to ferret out the truth, even at the expense of business or personal privacy. Nor would it seem plausible to put the discovery tools in the hands of judges or parajudicial officials, if only because discovery conducted by a judge or magistrate would not be as thorough as discovery conducted by the parties' lawyers.

Civil litigation as a means of vindicating the public interest is by far less significant in Europe. Class actions for the recovery of damages suffered by hundreds or thousands of persons are unknown on the Continent. Derivative suits by shareholders, product liability cases and actions based on a violation of the antitrust law are not un-[*pg 76] usual, but have nowhere attained the dimension, vigour and force that would qualify them as significant checks on corporate behaviour.

It is much harder to argue the case for the American civil justice system where it deals with cases in which the lawsuit is merely a dispute between private individuals about private rights, as, for example, in an ordinary personal injury action. True, the vast majority of all civil matters in the United States do not result in a jury trial, and most are resolved by settlement.50 In Germany, too, the great majority of personal injury claims are settled rather than resolved by court decision. However, in both systems the parties are bargaining in the shadow of the law, and the law is very different indeed. In the United States due to the cost and number of attorney hours spent on investigating the case and on pretrial motions, discovery, and trial, the economic pressure to settle is intense. Moreover, the outcome of an American jury trial is less predictable than that of a case tried by a German judge. Let me illustrate this by looking at one important area of the law in which the differences are indeed striking: the law relating to the assessment of damages for personal injuries. Legal doctrine in Germany and the United States does not differ greatly in most such cases. Far more significant are differences in the mode of trial. Because these cases are tried by a judge alone in Germany, and damages are assessed by judges, who give full and detailed reasons, the calculation of damages has become much more regularized, systematic and uniform in Germany while the range of awards in similar cases is very much larger in the American system of trial, almost entirely as a result of the use of juries. Accordingly, the probable range of damages is less predictable in the United States than in Germany. Unpredictability leads to uncertainty, and uncertainty increases the importance of good legal representation, which may be easily available to repeat players like insurance companies but raises concerns about access to justice for the poor and procedural equality of litigants with disparate economic resources.

^ IV. Conclusion
In conclusion I would like to emphasize that what is often overlooked in the literature on comparative civil procedure is that different procedural systems may focus on different categories of cases. [*pg 77] The typical case at which the German system is aimed involves a comparatively small amount of money, raises no major issue of public policy, and is merely a dispute between private parties about private rights. In such cases it obviously makes sense to give the judge a leading role in the examination of witnesses and wider powers over the evidentiary process, thereby reducing considerably the amount of lawyer effort and cost in exchange for a modest increase in effort and activity on the part of the judge. This is where I think the advantages and the strength of the European procedural systems lie. If there is a desire to reform American civil procedure so as to provide effective justice for the "little guy", either by making changes within the traditional system or by developing alternative methods of dispute resolution, then the Continental experience may well be a worthwhile object of study.


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