The Superiority of German Justice to U.S. Justice

In the Atlantic, comparative-law prof James Maxeiner argues that German civil justice is superior to its American counterpart (h/t Ed Philp):

Comparing how American process works to its German counterpart highlights five ways in which our own system is defective:

1. In Germany, parties must tell judges about their claims at the outset. In their complaints, German plaintiffs are required to state facts that support their claims. They must identify evidence upon which they plan to rely; defendants, in turn, must substantiate denials with facts where possible. In the United States, by contrast, plaintiffs reveal few facts and identify little evidence in their complaints. Before 1938, they had to at least state facts.

2. German judges "live" with cases from the start. Judges, not defendants, are the first people to read plaintiffs' complaints. Upon filing, judges review complaints to make sure that they meet procedural requirements and determine whether the facts alleged, if proven, would support judgments. Only after judges have reviewed complaints are they served to defendants -- baseless complaints ordinarily don't get this far.

In the United States, on the other hand, judges do not review complaints before service or often at any time. After service, on defendants' request, they may review specific aspects, but this post-service review, in comparison to its German counterpart, is protracted and expensive. A requirement (embodied in two recent Supreme Court decisions, Twombly and Iqbal) that there be a finding that asserted claims are legally "plausible" was met with vociferous criticism.

3. In Germany, judges and parties cooperate to frame issues. When German judges authorize complaints for service, they generally direct parties to go into conference together. In these conferences, judges confer with both sides -- not just with both sides' lawyers but with the actual litigants themselves. In discussions with the parties, they frame the issues that they will need to decide to judge cases. They clarify what plaintiffs seek, they identify which legal rules might apply, and they establish which facts are material and in dispute. Parties are under a statutory duty of cooperation to answer judges fully and to substantiate claims with offers of evidence where appropriate.

In the United States, judges often do not hold early pretrial conferences, and when they do, these conferences are typically used to set deadlines rather than frame issues. Rarely do they require the litigants to be present. Parties are under no duty of cooperation (although the Federal Rules Committee is currently considering one).

4. German judges take evidence only on disputed issues of material fact. Judges do not waste time with evidence that they do not need for their decisions -- i.e., evidence that does not contribute to resolving a disputed material issue. For issues that are material and in dispute, parties may ask the court to take evidence. Judges rule on these requests in written orders, in which they determine specific issues on which evidence may be taken from particular witnesses. They take evidence only in court. Judges are subject to a statutory duty of clarification which requires that they not decide material issues adversely without making parties aware that they need to offer evidence or otherwise contest the particular point.

In the United States, in contrast, the parties themselves get to determine what evidence to seek. Without court order and outside of court, they may force their opponents to divulge any evidence that they deem "relevant" to a claim or defense. They are not limited to taking evidence regarding matters that are material and in dispute, leading to hugely expensive and time-consuming evidence-gathering free-for-alls.

5. German judges explain their decisions. German trial judges are required to explain their decisions fully -- i.e., to state the undisputed parts of the case, to set out the parties' conflicting arguments, and to explain their reasons for resolving those disputed issues as they did. In the United States, judges do justify their decisions in bench trials, but such trials are comparatively rare; juries, do not justify their decisions at all; jury verdicts leave parties in the dark.

The virtues of German civil justice are clear. In the German system, judges are narrowing issues in dispute from the beginning. By the time they are ready to decide the case, the parties know upon which disputed facts the decision will turn. With each step forward, the decision of the case becomes increasingly predictable. Parties may read the handwriting on the wall and settle the case, not because the costs of going forward are too high but to avoid the litigation risk of an adverse decision. Throughout the process, an engaged and empowered judiciary ensures a speedy, reasoned, and equitable resolution.

I've spent a good deal of time thinking about this, and have come to conclusions similar to Maxeiner's. The German system, by downplaying the role of lawyers, narrowing issues, and actively searching for consensus, resolves disputes more efficiently than American civil justice. Further, its seems to reach judgments which are just as sound, if not more so, so all that procedural streamlining is not coming at a cost in terms of substantive justice. Maxeiner is especially right to conclude that forcing trial judges to explain their decisions in writing -- which is common in the federal system but not in many state systems -- is necessary. The fact that first-instance judges can simply decide important issues without explaining their reasoning gives laziness and bias plenty of room to hide, and mediocre judges use it liberally.

I do have a few caveats, though:

1. Many of the procedural trappings of American justice are driven -- whether directly or indirectly -- by the possibility that a jury might decide key issues. If you are going to put much more power in the hands of judges to guide and resolve disputes, you will need to put much more effort into picking good judges. In half of American states, judges are elected, often in partisan political elections. As long as American continues this foolish and outdated policy, I don't want to give the judges who are chosen by it more power. German judges, by contrast, start their careers in their  late 20s as highly independent, near-unfirable civil servants.
2. Maxeiner considers the lack of wide-ranging, independent powers of discovery in German trials a feature, not a bug. I personally am not so sure. The American civil discovery process, which doesn't exist in Germany, can be a massively powerful investigative tool. True, German judges can order their own court-mandated evidence-gathering, but if they don't agree that a certain topic is worth investigating further, there's no recourse for the parties. Giving lawyers free rein to question witnesses under oath and comb through a companies' files may endanger privacy, but it also fosters transparency and accountability, two areas in which German justice often falls short. Americans know much more about the wrongdoing of American corporations than Germans know about the wrongdoing of their corporate giants, and one main reason for this is lawsuits that drag dirt into the open.
3. The financial and social context is worth keeping in mind. The sums involved in American litigation are much larger than those in dispute in German courts. German lawyers get paid a modest amount of money (50% of German lawyers make less (g) than € 35,000 per year, and the average salary is € 50,000 Euro) whether they win or lose, whereas in America, a lawyer on a contingent-fee case may lose thousands of dollars if he loses the lawsuit. Plus, an uninsured person who is injured in an accident may have tens of thousands of dollars in medical expenses that he or she cannot pay -- thus providing a strong incentive to file claims and try to win them. Because the financial stakes for parties and lawyers in America are often higher than in Germany, you may have a real problem with reforms that deprive those lawyers and parties of a chance to directly participate in and guide the process.

Comments

[Deep Thought]

Excellent points made here. I want to add just one point:

There is one thing in the US justice system that I (as a German) am really jealous of: The Fruit of the Poisonous Tree doctrine.

It is astounding what prosecutors can get away with in Germany. The police may search your flat illegally, but if they find something incriminating like a pirated DVD or whatever, that retro-justifies their illegal actions. It's called "zufallsfunde" (chance findings) and it is horrible. A US judge would not even bother to laugh at the prosecution for stuff like that.

[Michael Elsdörfer]

This (hard to navigate) document lists the number of Judges in Germany at 20.000 as well, but the claims there are 30.000 judges in the US:

http://www.unodc.org/pdf/crime/eighthsurvey/8sv.pdf (page 137).

[Till]

I generally agree with (and, as a German attorney, feel quite happy about) Maxeiner's and your opinions. I disagree, though, about the role of the discovery process.
Yes, the discovery process may serve as an investigative tool. But that is not its purpose, and using discovery to generally investigate a company is - in my opinion - an abuse of a legal tool that is meant for a different purpose. German law provides for investigative tools, if you can prove a valid interest in obtaining the information. In particular, you can request information as a shareholder of a company; or, if you have a convincing argument ("substantiierte Darlegung"), perhaps even backed by certain proof, that the defendent has breached its obligations, the burden of argument and - potentially - proof is reversed, so that the defendant must convince the court of and potentially prove its innocence. I find this somewhat more differentiated than the US system, more of a scalpel than a broadsword, if you will, and assume that the German system gives a reasonable benefit for far less costs than the US system.

Let me hasten to add that the US system does have advantages.
First, judges are generally far more professional. By electing attorneys with much experience, you ensure that judges understand the parties' interests better and make more sensible decisions than Germany's fresh-off-university judges. Also, some - but by no means a majority of - German judges tend to adopt a civil servant mentality and consequently lack the work ethic that US judges have.
I would also like to add that Germany has a much higher number of judges. As far as google tells me, Germany has around 20.000 judges in total, while the US - with four times the population - has only 10.000.
Second, language. German court procedure and decisions tend to be comprehensive, but technical (what with Germans being engineers at heart). US decisions, in my admittedly limited experience, tend to be more understandable and convincing, which may improve their acceptance. I would be willing to wager that US judges are much less criticized than German judges.

Finally, let me take the opportunity to thank you for your thoroughly enjoyable blog, and hope for more articles and discussion like this.