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II. The two differences which are particularly important for legal practice
Some people think that there are two fundamental differences between German and Anglo-American civil procedure. The first one is that the role of the court and the role of lawyers are different. Second, there is no distinction between pretrial and trail, between discovering evidence and presenting. I agree the first one is also particularly important for legal practice, however, I think the second important difference, which has significant relevance for international legal practice, is the difference in the appeal. I will address them one by one.
1. The inquisitorial civil procedure in civil law and adversarial civil procedure in common law is the particularly important difference I consider for legal practice.
This difference directly reflects the different role of different actors in different legal systems. In American system, the work of gathering and producing the factual material belongs to the partisans and this is what the judgments depend upon. At the other hand, it is the judge who has greater responsibility to investigate the facts alleged by the parties. In short, judges and lawyers have different role during the trail of the two kinds of civil procedures. At the same time, many other differences the two civil procedures are derived from it.
In civil law civil procedure, the judge plays a very important role in the trail. The judge has “extensive power to supervise and exercise initiative in the proceedings.” The judge not only presides the schedule of the proceeding, he also asks the parties or the witness some questions according to the outline he has prepared before trail, and ask any issue he forms or reformulates during the trail. If the judge thinks it is necessary, he can investigate himself or invite some experts to issue experts opinion on some professional issues. If the parties fail to investigate evidence, they can apply the judge to get it. All the power located into the judge and there is no limitation of the judge. So it is criticized that it cannot guarantee the equity. Lawyers have not enough power in civil procedure in most civil law countries. For example, the lawyers cannot ask the witness; when the court gather and shift evidence, the lawyers keep an eye over the judges’ work. But this does not mean that it is no use to hire a lawyer in litigation. The lawyers must have their absolute necessity if they are greatly restrict in fact-gathering, otherwise the parties will not pay for them. They help the parties to file the documents, narrate the key facts which the claim or defense upon, apply the statutes or legal theory which they according to, clarify why the remedies or /and damages exist and whether they should be supported or not, draft the documents to identify which witness is useful for the party they represented and apply the judge to investigate, read and inspect the court’s dossier, appear in every hearing, discuss and communicate their opinion with the judge, pose additional question when the judge finish interrogating the witness, suggest improvements in the summaries which the judge made, debate with the opposite side before the judge finish the investigation, etc.
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