Professor Dr. Hein D. Kötz - dean of Bucerius Law School in Hamburg, Germany, and a leading scholar in comparative law - presented the inaugural Herbert L. Bernstein Memorial Lecture on September 10. In a speech entitled "Civil Justice Systems in Europe and the United States," he addressed essential differences between the European and American civil justice systems and their relevance to reform.
Professor Kötz began his well-attended lecture with kind words for Professor Bernstein, with whom he'd shared a four-decade friendship. The two worked together at the prestigious Max Planck Institute at Hamburg, Germany, and were graduate students together at the University of Michigan in the 1960s.
"Herbert's death at the Law School a little more than a year ago was a great shock not only to the Duke Law School community, but also to the many friends he had in Germany," Professor Kötz said. "I knew him for nearly 40 years, and I am very grateful indeed for this opportunity to pay tribute to him and his contribution to the law and legal education."
Professor Bernstein, a specialist in contract, comparative and private international law, taught at Duke Law School from 1984-2001, when he died unexpectedly. In recognition of his contributions to the legal community as well as his commitment to justice, his students and his colleagues, the Law School established the lecture to bring to Duke each year a distinguished comparative and international law scholar to give a public lecture to the Law School community.
During his remarks, Professor Kötz drew a distinction between American civil proceedings, in which lawyers tend to conduct the major part of interrogation of witnesses, and the system in Germany and many other European countries, in which that task falls largely to the court itself.
A similar distinction exists with respect to the calling of expert witnesses. "In Germany, as indeed in most Continental countries, the expert will be selected and appointed by the court after consultation with the parties," Kötz said. That differs markedly from U.S. courts, in which the lawyers would find experts who then would be examined and cross-examined much like other witnesses.
Professor Kötz said an advantage of the German system is that witnesses receive relatively little coaching from lawyers and that judges would "take a dim view of the reliability of a witness" who had spent a great amount of preparation time with a lawyer. That fact, coupled with the German court's strong role in the process of selecting relevant evidence and witnesses from what is brought before the court by the parties, leads to some efficiencies not enjoyed in American civil cases, he said, adding that the much more aggressive discovery process in American civil law raises privacy concerns.
He dismissed criticisms that the German model, sometimes described as inquisitorial rather than adversarial as in the United States, is less likely to produce just outcomes. "All arguments generally praising the virtues of the adversarial system of the common law and contrasting them with the vices of the inquisitorial system ascribed to the civil law are misguided and, in Herbert Bernstein's words, 'cannot advance, even by an inch, the comparative analysis of German and American civil procedure'."
Despite its advantages in many situations, bringing the Continental model to America could be difficult, Professor Kötz noted, as it would require major changes in legal procedure and possibly the abolition of the civil jury. Yet the civil jury already has disappeared to a great degree, he said, in England, Canada and Australia.
Professor Kötz did offer some defense of the American system, especially in major civil cases. For example, he said, the American tradition of big class-action suits allows individuals to protect public interests through the courts in ways that are extremely unlikely in German and other Continental courts.
"Civil litigation as a means of vindicating the public interest is by far less significant in Europe," Professor Kötz said. "Class actions for the recovery of damages suffered by hundreds or thousands of persons are unknown on the Continent."
Conversely, though, civil juries in America are unpredictable in the way they award damages in smaller cases, he said. "Unpredictability leads to uncertainty, and uncertainty increases the importance of good legal representation which may be easily available to repeat players like insurance companies but raises concerns about access to justice for the poor and procedural equality of litigants with disparate economic resources."
If America is to make a change, Professor Kötz suggested, it might do well to reform the process for these smaller cases.
"If there is a desire to reform American civil procedure so as to provide effective justice for the 'little guy,' either by making changes within the traditional system or by developing alternative
methods of dispute resolution, then the Continental experience may well be a worthwhile object of study," he said.