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A German Claimant can’t be his own Witness

Civil Procedure Laws and actual Litigation Practice in German Court Rooms is very different from English or US Civil Trials

Under the English Civil Procedure Rules, it is common practice that a Claimant provides a witness statement to the court. To the eyes of German lawyers and Judges, this is a strange concept, because German law does not allow parties to provide witness statements as evidence before the Court.

Under section 447 German Civil Procedure Rules (CPR), a party (Claimant or Defendant) may only provide evidence by her / his own personal statement of facts, if the other party expressly consents to such “Parteivernehmung” (evidence by party statement). Obviously, such permission is usually not granted. Thus, in a German Court room, a party is not able to give “hard evidence” by giving a statement in his/her own words. German law simply does not trust such party statements to be objective and accurate.

German Claimants and Defendants may, of course, present their side of the story and the German Civil Courts will take such statements by the parties into due consideration, but they will not be considered as hard evidence, see section 453 Civil Procedure Rules (CPR):

Evaluation of the evidence obtained in examining a party

(1) The court is to evaluate, at its discretion and conviction, the testimony of the party pursuant to section 286.

The general principle regarding evaluation of evidence is contained in section 286 German Civil Procedure Code (CPR):

Evaluation of evidence at the court’s discretion and conviction

(1) The court is to decide, at its discretion and conviction, and taking account of the entire content of the hearings and the results obtained by evidence being taken, if any, whether an allegation as to fact is to be deemed true or untrue. The judgment is to set out the reasons informing the conviction of the judges.

(2) The court shall be bound to statutory rules of evidence only in the cases designated in the present Code.

Section 448 allows the German Civil Court to formally examine a party directly:

Section 448 Ex officio examination

Even if no petition has been filed by a party, and without consideration of the onus of proof, the court may direct that a party or both of the parties be examined regarding the facts and circumstances at issue, if the results of the hearings and of the taking of evidence, if any, do not suffice to establish to the satisfaction of the court the truth or untruth of a fact or circumstance that is to be proven.

This is, however, not often done and is meant as a means of last resort.

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Thus, under German procedural law, party statements are not considered “hard evidence“, but are instead qualified as mere “Parteivortrag”. If the other party disputes such Parteivortrag, then the party bearing the burden of proof for this issue will lose the case unless the party can present hard evidence. In other words: Parteivortrag per se is not enough, even if the judge believes the Parteivortrag is true. Without hard evidence in the form of documents or real witnesses the Claimant will have not made their case under German Civil Procedure Rules.

In addition, even expert reports, if submitted by a party, are not considered real evidence, but only constitute so called “qualifizierter Parteivortrag” (qualified party statement). In order for an expert report to be taken seriously under the German Civil Procedure Rules, the expert must have been chosen and appointed by the Court. This is a very different approach compared to civil litigation in England.

When our German litigation lawyers represent English or American Claimants in German Courts, these clients and their foreign legal counsel usually have a very hard time understanding that we do not ask the Client to submit a written Witness Statement and that we also do not recommend to get an expert opinion straight away. The reason is, as explained above, that under German Civil Procedure Rules, witness statements are not being submitted in written form anyway (much less the statement of a party), because the judge questions the witnesses during the oral hearing. If a legal counsel approaches a witnesses at any time before the court hearing, this may be seen as trying to influence the witness. So, any “preparation” or “coaching” of a witness, is at best useless, and at worst it will be considered as attempting undue influence by a party, which may render the testimony of the witness worthless.

In regards to experts (Gutachter or Sachverständige), it may in some cases be necessary to get a pre-trial expert report in order to get a better understanding of some facts (for example medical or technical issues). However, while such a pre-trial expert opinion (Privatgutachten) may of course be submitted to the German Court, the Claimant and Defendant must always be aware of the fact that such a “privately obtained expert report” is not hard evidence under the German Civil Procedure Rules. The expert’s findings will, in most cases, not be accepted by the other party and in that instance, the Court must and will select and instruct a neutral expert in order to provide a report directly to the Court. So, from a perspective of trial strategy, if in a certain technical area there are not many experts available, it may be unwise to obtain a pre-trial report from such expert, because he or she will then be “burned”, i.e. cannot be chosen by the Court anymore.

After all of the above, it is rather surprising that a party’s legal counsel (the Rechtsanwalt, i.e. the German barrister) is permitted to act as a witness for his / her client. If, for example, at any time during pre-trial negotiations, the Defendant (let’s say in a meeting or a phone conversation) has admitted to some fact which helps the Claimants case, the Claimant’s counsel may give a witness statement about this, which is then considered hard evidence. It does not happen very often that a German litigator stands up and gives a formal witness statement for the benefit of his client. And if it does, all the lawyers look at each other as if they feel that something must not be quite right. However, the German Supreme Court (Bundesgerichtshof) has ruled that a German lawyer is permitted to act as a witness for his own client,  Court Order of 8.5.2007 – VI ZB 80/06 (for details see here).

More on civil litigation and evidence rules in German Courts of law and before German arbitration tribunals:

 

The law firm Graf & Partners was established in 2003 and has many years of experience with British-German and US-German legal matters.The Anglo-German litigation lawyer team of GP Chambers is well equipped to advise and represent clients from the UK and other English speaking countries. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please contact German lawyer Bernhard Schmeilzl, LL.M. (Leicester), managing partner and head of the litigation department. Bernhard is also frequently asked by British and US Courts and Tribunals or by legal counsels to provide expert reports and legal opinions on German law.

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