One of the greatest privileges of our job is to see and learn new things every day. Contact with other cultures, legal systems, alternative decision-making methods and other ways to negotiate is simply exciting.  In addition to contract and crisis negotiations, our tasks abroad often include the assertion of claims, often arising from commercial relations or transport damage. If legal proceedings become necessary, we manage these for our clients. It can happen that we travel all over the world to pursue our clients’ interests locally. This week I am in Canada for a mediation and our colleague Dr. Dansalia is in Chandigarh, India, to support our local colleague there.

One element of proceedings in common law countries that fascinates me because of the complexity, the effort involved and the challenges for lawyers and clients are the discoveries or depositions.

In Canada and other common law countries, civil proceedings involve a stage called “discoveries” which is a pre-trial taking of evidence. This is where both sides exchange information and evidence to understand each other’s case better. It includes oral examinations (called “examinations for discovery”) where lawyers question the other side’s witnesses under oath to gather facts. This very complex process leads to an impressive investigation of the case.

In Germany or other civil law countries, civil proceedings do not have a similar discovery phase. Instead, the “taking of evidence” happens during the trial itself. Here, the judge plays a more active role in gathering and examining evidence. Witnesses and experts present their testimony directly to the judge, who decides what evidence is relevant and admissible. The process is more controlled by the court, with less back-and-forth between the parties outside of the trial. However, the parties have a great deal of influence over which facts they present and offer as evidence. The court can then only take evidence on the facts presented and by taking the evidence offered by the parties.

So, the main difference is that common law proceedings emphasize pre-trial information exchange additionally to the process of taking evidence during the trial itself, while in many civil law proceedings, the evidence is primarily gathered and assessed during the trial under the judge’s guidance.

From our experience with proceedings in common law and civil law countries, the procedure with discoveries or depositions is more complex, longer and more costly. Sometimes it may lead to earlier settlement. If there is a choice, for example in arbitration proceedings or in cases where there is a place of jurisdiction  in both systems, the time and cost factor probably argues for the civil law taking of evidence.

Am I to shaped by my roots in the civil law system? Or can this be objectively determined? What is your experience?