Trashing The German Advantage

The conduct of civil litigation in Continental legal systems differs markedly from the Anglo-American tradition, although the differences should not obscure the fundamental similarity that both are adversary systems. In Continental systems lawyers for the litigants play important roles in formulating their clients\u27 positions, nominating lines of factual inquiry, and overseeing the work of the court. The greatest difference between the two traditions is the allocation of responsibility for identifying and investigating disputed issues of fact. In our procedure, the adversaries gather potential proofs in out-of-court pretrial discovery proceedings; and if the case resists settlement, the adversaries select and adduce proofs at trial. In Continental practice, by contrast, the court determines the sequence for investigating issues of fact; and, subject to adversary oversight, the court examines witnesses. Our distinction between pretrial and trial is unknown; rather, a European court investigates and adjudicates in discontinuous hearings, as many as the case requires. In The German Advantage I had three objectives. First, I wanted to make available a concise account of the main attributes of the Continental system that I know something about, the West German. Sometimes even the first principles of German procedure take Anglo- American audiences by surprise, although there is a large English-language literature on the subject (not to mention the vast corpus of German- language reports, treatises, and scholarly monographs surrounding the German code of civil procedure). I came to suspect that the literature was perhaps too large and scattered, and that a work of summary might fill a need. Accordingly, in a 43-page article, I undertook to describe the salient features of German civil procedure