The Role of the Judge in Civil Litigation – Are the Procedural Rules Still Up to Date?

The Association of German Jurists (Deutscher Juristentag) is a venerable institution, one of the oldest in Germany’s legal community, having been established in 1860. It aims to promote the development of the legal system across all fields of law. Its recommendations have often been a catalyst for legal reforms. The Association’s activities culminate in the bi-annual German Jurists Forum (Deutscher Juristentag). This year, the 70th German Jurists Forum, will be held from September 16 to 19, 2014 in Hannover. One of its “divisions” (Abteilung) will be devoted to the role of the judge in the context of civil litigation reforms.

Here is the outline of what will be discussed in Hannover:

“The Code of Civil Procedure (ZPO) and the Courts Constitution Act (GVG) date back to the 19th century. It is about time to modernize the way litigation matters are being allocated within the court system and how procedures are managed. Lawyers have become increasingly specialized, facts have become more complex and disputes more voluminous; computers allow briefs to be easily (re)produced, and rules have been introduced that create sanctions for undue delays in litigation – all of these factors have changed indeed heightened expectations of what civil litigation should deliver.

The procedural division of the 70th Deutschen Juristentag plans to discuss whether, and if so which, instruments must be created to make civil litigation modern, attractive and efficient. Amongst other topics, the following will be discussed:

  • Statutory rules for specialisation (as provided for in the coalition agreement between CDU, CSU and SPD): Should additional specialisations or options to create specialized courts comprising several court districts be created, for example in construction matters, investor disputes, or medical malpractice cases?
  • Allow for flexibility in the allocation of cases to judges: Is it possible, within the boundaries imposed by the constitution, to give powers to the presiding judges that allow for a more flexible allocation of judges, and increase quality and efficiency through staffing, for example by allocating a more senior judge in lieu of a junior judge to whom the case would have been allocated originally?
  • Creation of flexible judicial bodies tailored to the disputes, for example through the appointment of lay judges with the required expertise, or through the appointment of professional judges from other branches of the judiciary to generate expertise on the bench that matches the subject matter of the dispute (examples would be an architect or engineer as lay judges in a construction matter, or a judge from the tax tribunal in a professional liability case brought against a tax adviser).
  • Widening the parties’ choice to determine the competent court, for example allowing an important test case to go straight to the Court of Appeals (Oberlandesgericht) if the parties so agree? Allow agreements on the exclusion of the public from court hearings to protect parties, as a means from stopping cases to be moving into arbitration instead?

Modern civil litigation could also mean that the parties have to present their pleadings in a prescribed format, and are forced to summarize the facts on which they rely.

A discussion of the role of the judge in civil litigation thus also touches upon the role of the lawyer. All of the above relates to the job description of judges, regarding the continuing education requirements and the use of IT.”

Professor Callies, University of Bremen, has been appointed as the rapporteur. His report will form the basis of two days of intensive discussions in Hannover. At the end, the attendees will take a formal vote on various recommendations to the law makers (see here for the 2012 resolutions, here for my post on the 2012 sessions, and here for Commissioner Reding’s speech on class actions at the 2012 Forum).

I am planning to attend, and will in any event cover the matter here in more detail.

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