The Process and Main Stages of Civil Litigation in Germany
Filing a Civil Complaint
In order to initiate a civil lawsuit (Zivilprozess) in Germany, the plaintiff (Kläger) files a complaint with the competent German court (see here). This complaint is called “Klage” or “Klageschrift”, which means “statement of claim”.
After due registration by the court and a very preliminary compliance check with regards to the formal requirements set out by the German Civil Procedure Rules, the complaint is then served to the defendant. In most cases, the court itself takes care of the service procedure, but only after the claimant has either paid the court fees (Gerichtskosten) or has been granted legal aid by the court, which requires the claimant to demonstrate reasonable chances of success.
Personal service of civil litigation documents is normally not required in Germany and – as long as there is a valid address of the defendant within Germany — the claimant does not have to bother with any matters of service at all (for details see here).
In addition to the Klageschrift (complaint) itself, the court will serve to the defendant a letter setting a deadline for the defendant to inform the court whether they wish to dispute the claim. This deadline is usually 2 weeks if the defendant is resident in Germany but can be significantly longer if the defendant resides outside Germany. The court documents will contain detailed explanatory notes on the rights and obligations of the defendant. If the defendant misses this deadline, the German court will issue a default judgment (Veräumnisurteil), which is explained here.
In the Klageschrift (civil complaint), the plaintiff or their lawyer first explain why this specific German court has jurisdiction (Zuständigkeit) and demonstrate that all other formal requirements are satisfied, for example that the plaintiff is duly represented by a German licensed lawyer which is required on the High Court level and up (Postulationsfähigkeit), that the case is not already pending elsewhere (anderweitige Rechtshängigkeit), and that the lawsuit is not frivolous (Rechtsschutzbedürfnis). This part of the complaint is called “Zulässigkeit der Klage” (admissibility of the complaint).
The second part of the German statement of claim, the so called “Begründetheit der Klage” (justification of the claim), deals with the actual legal merits of the claim. In this part of the civil complaint, the German plaintiff’s lawyer describes the nature of the injury and damages and lays out how the defendant caused the harm.
The actual “application for relief” (Klageantrag) is usually stated right at the beginning of the complaint (i.e. on page 1 or 2). Some old-fashioned German litigation lawyers, however, put the demand for relief at the end of the German civil complaint. In the Klageantrag, the plaintiff may seek a wide variety of remedies, inter alia the payment of a specific amount of money to compensate for the damages (Zahlungsanspruch), or a court order against the defendant to stop a specific conduct (Unterlassungsanspruch). A German civil court may order many other types of relief, for details see this post.
Preparation of a German Civil Case
As we have explained in other posts (here), there is neither any discovery procedure under German civil procedure rules, nor are there any depositions or written witness statements. There is also no jury and no cross-examination of witnesses. German civil cases are much more centered around the judge (or panel of judges). These judges do not appreciate showboat lawyers trying to create a spectacle (to impress their client). Instead, these German judges want to be presented the relevant facts. Calmly and without aggressively attacking witnesses or experts. Remember that nowadays approximately 50% of German high court judges are female. They are usually not a fan of too much lawyer testosterone in the courtroom.
Since there is no jury and since the professional German judges are already well aware of the facts of the case from the submitted briefs, there are usually also no closing arguments. Once the relevant witnesses are heard (questions are asked by the judge!), the judge gives the parties an opportunity to discuss the case, especially to consider a late stage settlement. If this fails, the oral hearing is usually ended rather abruptly and the court adjourns.
This German style of a rather “mellow approach to civil litigation” often creates considerable frustration for US clients and their US attorneys because they feel that their side is not being presented as it should be. And a reasonable dose of US style aggressiveness in a German courtroom can work wonders. We frequently use these “shock and awe” tactics for our international clients. However, overdoing this in a German courtroom can be counterproductive. German trial lawyers who represent US or UK clients in Germany must explain the options and openly discuss strategy.
All this leads to a very different preparation of the civil lawsuit compared to the USA or the United Kingdom. In general, the oral hearings themselves are much less dramatic and also much less important for the outcome of the lawsuit. The lawyer’s briefs (Schriftsätze) together with reports of expert witnesses (Sachverständige), who are selected, instructed and questioned by the court – not by the parties, are generally what decides the case.
Settling a German Lawsuit
To avoid the stress, delay and expense which come with a formal trial, German civil procedure rules encourage litigants to attempt to reach any amicable resolution of the legal dispute. Thus, it is not only permitted but highly recommended and expressly encouraged by German civil litigation judges to settle a lawsuit – at any stage. The German system of statutory legal fees (both court and lawyer fees) also incentivises settlements. To be blunt: German lawyers earn more fees if they can get their clients to settle. More on this in the post: How to Settle a Lawsuit in Germany.
Oral Hearing in German Civil Proceedings
As explained above, there is no jury. Thus, oral hearings in German civil lawsuits are much shorter. If there is no need to hear witnesses or experts, and if the parties are unwilling to discuss a settlement, the hearing can be over in 10 minutes. For more on oral hearings in a German civil procedure see here .
The taking of evidence in a German civil trial is explained in this post here. Further major differences between civil litigation in German and the USA are that (i) there are no verbatim records or transcripts of what is said in the German oral hearings (details here), much less are there any video cameras or live broadcast; and (ii) the court documents are not public record.
How are Judgments issued by German Civil Courts?
Once all evidence is presented, expert reports have been obtained and once there has been at least one oral hearing, the court decides whether there is the need for another oral hearing or whether the court is willing to allow the parties to submit one final statement within a specific deadline (Schriftsatzfrist).
Whenever the court is satisfied that all relevant aspects have been duly dealt with and both parties have had sufficient opportunity to state their arguments and to present their evidence, then the court informs the parties about the date on which the judgment will be handed down (Verkündungstermin). Again, since there is no jury, this is a rather undramatic. In the vast majority of cases, neither party shoes up for the rendition of the judgment (Urteilsverkündung), because that would be over in 2 minutes since the judge only reads the operative provisions (Urteilstenor), i.e. who has won the lawsuit. In practice, both parties’ lawyers have a paralegal call the court on the day of the Urteilsverkündung and ask the court clerk to fax or email an advance copy of the judgment. The official copy of the German judgment will then be sent by post within a few days. Usually, the judgment is served to the parties’ lawyers who will then evaluate the reasons given by the court. Based on this evaluation, they will then advise their clients on whether it makes sense to officially appeal the German judgment.
More information on litigation and legal fees in Germany is available in these posts:
- Making a Court Claim for Money in Germany: It’s actually quite easy
- Standard of Proof in German Civil Litigation
- German Litigation Experts explain Civil Procedure Rules
- A German Claimant can’t be his own Witness
- Compensation for a wrecked Car under the German Law of Torts
- Does German Law of Torts know the Egg Shell Skull Rule?
- How expensive is a German Lawsuit?
- Expert Reports on German Law
For legal advice on German civil procedure and how to successfully litigate in Germany, contact theinternational litigation experts and trial lawyers of GrafLegal.
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