Are judges the better lawyers?
1. In order to become a judge in Germany, you generally have to have a certain average grade in the (first and) second state exam. Depending on current staffing needs, the required average is such that – let’s say – only the best 30% of graduates can become judges. (- varying from year to year and from state to state). That is law school graduates become judges right after the “bar exam”.
Consequently, because of the grade requirement, there are many lawyers (attorneys) who do not have the legal qualification to become a judge. (There are grades in the German “bar exam” and those are extremely important)
2. On the other hand, a judge is not more qualified than a good attorney. Many law school graduates do have the required grades to become a judge, but for whatever reason they decide against this “civil service job”.
3. Good attorneys are in no way inferior to judges in terms of their legal qualification and are sometimes even more qualified. See Legal Tribune Online of 13 September 2018: “With 6.5 points into the judgeship” and the statement: “Exam with honors no longer mandatory to become a judge”.
4. In court, however, the roles and functions are nevertheless always such that the judge stands above the lawyer. In Germany, the presiding judge conducts the proceedings. And at the end, the court decides on the case and not the attorney. For the client, therefore, the impression can sometimes arise that counsel was not competent enough, because the court did not follow his reasoning.
5. Are judges always right? Of course not. This can be seen from the fact that the decision in the first instance is often different from the decision, on appeal, in the second or third instance. If a judgment is overturned in the higher instance, this usually means that the higher judges were of the opinion that the judge or judges of the lower instance adjudicated the case incorrectly, i.e. committed a legal error. This is not surprising. Because judges can, of course, be just as mistaken as lawyers.
6. In court, however, a judge will rarely admit that he or she was mistaken. At least that is my courtroom experience. So judges often claim to be “infallible” to the outside world, as the Pope used to do. To a certain extent, they probably have to, because otherwise their authority vis-à-vis the other parties to the proceedings would suffer. Why should a plaintiff or a defendant submit to the judgement of the judge if the judge himself admits that he may not be right? In my experience, it is only in confidential conversations that judges will admit that they sometimes do not know themselves how to decide a case.
7. Judges, too, are only human. They make mistakes, and sometimes they are just lazy and don’t feel like dealing with a case sufficiently. This can happen with any professional, including judges.
8. What conclusions should you draw from this:
a) As a client, do not expect the ultimate justice from a judicial decision.
b) Nothing is more convenient for a judge than when the parties come to an amicable settlement, so that the judge does not have to render a contentious judgment.
c) Judicial proceedings are also subject to the principle of procedural economy (effectiveness). This means that circumstances that are not relevant to the decision are ignored. The courtroom is not the place for a comprehensive review of the facts of life. It is good to know this as a client.
9. Last point: Civil trials in Germany are often quite boring. They have nothing to do with what you know from American TV movies. In civil proceedings, reference is often made to what has already been stated at length in the written briefs and pleadings. Flamboyant pleadings are neither expected nor welcome. Nor does it make much sense to appear overly assertive or even aggressive. Unlike an American jury, which consists mainly of lay judges (jurors), a professionally trained German judge is generally not impressed by theatrics. In fact, such theatrics are often counterproductive. German civil proceedings are generally calm and businesslike. And that I think is a good thing.
