Civil Justice Systems in Europe and the United States

Abstract

The remarks of Professor Kotz given at the first Herbert L. Bernstein Memorial Lecture comparing civil justice systems in the United States and Germany are presented in this article. Adversariness is the hallmark of the American system with not only cross-examination of witnesses by lawyers, but also preparation of witnesses for cross-examination. Civil procedure in Germany and in other civil law jurisdictions differs from the American system by making the judge responsible for the selection of expert witnesses, for the examination-in-chief of both fact and expert witnesses, and for creating the record based on those examinations. The author notes that the truth is that both in the American and Continental civil justice systems, the power to establish the facts on which the judicial decision rests is reserved to the decision-makers, whether the trial judge or jury in the United States, or the court on the Continent. On the other hand, it is in both systems exclusively for the parties and their lawyers to identify the facts they think will support the claim or defense, to make the appropriate factual allegations, and to nominate the witnesses and the facts of which they allegedly have knowledge. It follows that in their own ways both the German and American systems are adversary systems of civil procedure. In both systems the lawyers advance partisan positions from first pleadings to final arguments. In both systems the parties and their lawyers investigate and identify in their briefs the facts they think will support their claims and defenses. In both systems the court cannot go beyond the parties' factual contentions nor can the court strike out on its own in the search for what it believes might be the real truth. He concludes with thoughts on the controversies over transplanting legal institutions from one society to another and the strengths and weaknesses of the two systems of civil procedure in different types of cases.

Keywords: Civil procedure, Bernstein, comparative law