Friday, 2. December 2022

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Decision making in civil court proceedings in Germany – Don’t expect the ultimate truth

What is actually the probability that the judgement rendered by a German civil court is correct?

Well, I am not aware of any empirical studies on this. Probably there are none, because the objective truth can usually not be determined. Who can judge with certainty whether a judgment is right or wrong?

In the following, I will present a few (slightly provocative) ideas on this subject.

1. The civil court as a service provider

In civil cases, the court is actually not much more than a service provider. It decides cases if and as long as the litigants want it to do so. Provided that they have paid the advance on legal costs to the state judiciary.

If the parties decide to settle the dispute, the court immediately withdraws from the case. Even if the judge has perhaps already formed an opinion and would like to decide the case, he or she is no longer allowed to do so. The parties have taken the decision-making authority away from him/her again.

This is called the „Dispositionsmaxime“ (literally translated: disposition maxim). Some say that it is the most important procedural principle in civil proceedings. It  means that it is at the disposition of the parties whether there is a lawsuit or not.

2. The judge’s unwillingness to render a verdict

Many a judge would probably like to say: I don’t know who is right here. Can’t you sort this out yourself and come to an agreement?

Perhaps this is why every civil case – and even more so every case before the labor court – begins with a so-called conciliation hearing (Gütetermin). There, the court tries to “persuade” the litigants to reach an amicable settlement. This is what our procedural law wants. Not (only) because the judge can save himself the work associated with a judgment and increase his caseload (= effectiveness), but mainly because an agreement supported by both sides meets with the greatest acceptance. At least that is the theory.

But if the parties are unable to reach an agreement, then the court must decide. And if a decision is demanded of the court, then it must also be granted the authority and competence to make a decision. This is true even if one does not agree with the result.

3. The judge’s ignorance of the case

The fact that the litigants sometimes – quite rightly – disagree with the result is also due to the fact that the court of all the parties involved actually knows the least about the case. How so?

Quite simply. The client is the one who knows the facts best, because he was usually there in person when it all happened. The lawyer has the second best knowledge of the facts. However, his knowledge is already impaired by the fact that the client probably only tells him part of the truth and conceals the more negative or perhaps even embarrassing aspects.

And at the very end comes the court. The court’s knowledge of the facts is “filtered” twice, on the one hand by the client and on the other hand by the lawyer who, as the representative of his client’s interests, quite often only tells the court what is advantageous for his client; of course, in compliance with the procedural duty to tell the truth. – (Pretrial discovery under German law is much different from US law)

The court must then make its decision on this often insufficient factual basis. It is therefore quite common, so to speak, that this decision cannot always be correct from an objective point of view. But unfortunately, we have not yet invented a better system.

4. The Truth is negotiable

What you should also know: Unlike in criminal cases, the civil court does not investigate the truth, i.e. the facts of the case, on its own motion, but bases its decision-making on the facts that are presented to it by the parties. There is also a nice legal term for this procedural principle, but I will spare you that now.

Instead, I will give you an example: If both parties agree that the traffic light was green, then it was green for the court – even if the traffic light was in fact clearly red. This is because what is undisputed between the parties will not be questioned further by the court. The truth, at least as far as the facts are concerned, is therefore negotiable to a certain extent.

Incidentally, a matter is already undisputed if one side asserts something that the other side does not (substantively) dispute. The court also only summons and hears witnesses if this is requested by one of the parties to the proceedings. It is therefore not necessarily the fault of the court if it bases its decision on incorrect facts, but is often preceded by an error or omission on the part of one of the parties to the proceedings.

5. Judges are not more competent than lawyers

I have already pointed out in an earlier post (Judges and Lawyers) that judges are no better lawyers than attorneys. We all went through the same legal training in Germany: university, 1st state exam, traineeship, 2nd state exam, and then you start working as a judge, prosecutor, lawyer, notary, corporate counsel – or cab driver. …

It may well happen that the man (or woman) on the bench has worse grades in the state exam than your lawyer. Or less knowledge of the law in a particular specialty. Or that he spends less time on the case than your legal counsel. Or do you really believe that the judge is still sitting at his desk dealing with your case while your lawyer is long gone?

No, intelligence, competence, diligence and discipline, or whatever else one might associate with a good lawyer, presumably do not occur to a greater degree in judges than in lawyers or other legal professionals.

6. Cost-cutting constraints and procedural economy

Judicial proceedings cost money. After all, the ladies and gentlemen in the judges’ robes have to live on something. Therefore, the state demands that they work effectively.

In some areas, the judiciary is known to be overburdened. This is expressed in the long duration of proceedings (e.g. 1 year waiting time until the first hearing, and there are usually more than one in a German trial). But even more, it requires the judge to focus on what is legally relevant to the decision. And these are by far not all aspects of the facts that the person seeking justice would like to talk about in court.

But if it is irrelevant to the decision-making process, then the court will not spend any time on it. The courtroom is not the place for a comprehensive review of all the aspects of a conflict. I think I have written this somewhere before.

7. Judges are only human, too

And if a judge has five thick files on his desk, which he has to work through until the next day, and if he also a family at home, then he will not read each and every page meticulously from the first to the last line, but probably skim one or the other paragraph. You don’t do that any differently in your work, do you?

Of course, a judge is not allowed to admit this. Just as little as the surgeon will tell you after the operation that he was still quite tired when he cut you open because it had unexpectedly become a bit late the night before, and so on. …

To a certain extent, the judge has to conceal such weaknesses in order not to jeopardize the authority associated with his office. This can sometimes lead to situations that annoy lawyers. Let’s put it this way: If a judge has not understood something, he likes to call the argumentation of the litigant “inconclusive”. If, on the other hand, the lawyer or client cannot understand the court’s reasoning, then he or she is considered to be “stubborn”. That’s just the way it is. Should we get upset about it? You can, but it doesn’t help.

8. Conclusion

Civil court proceedings do not necessarily lead to a correct result (judgment). Nothing proves this better than the fact that the decision in the first instance often turns out differently than in the second instance (appeal) or in the third instance („Revision“ or 2nd appeal).

Does this mean that one should despair? No, not at all. Our legal system is generally good and reliable. But it is not perfect.
Nobody is infallible, neither your lawyer nor the court.

As Rag’n’Bone Man expresses it so well: I’m only human after all, don’t put the blame on me.

Dr. Wolfgang Gottwald
Rechtsanwalt/Attorney at Law

DR. GOTTWALD
Rechtsanwalt
Attorney at Law

Leopoldstraße 51
80802 München

Tel.: 089/383 293-10
Fax: 089/383 293-13

w.gottwald@kanzlei-dr-gottwald.de