THE GERMAN ADVANTAGE IN CIVIL PROCEDURE
John H. Langbein [FNa]
University of Chicago Law Review, Fall, 1985
Copyright 1985 by The University of Chicago; John H. Langbein
Our lawyer-dominated system
of civil procedure has often been criticized both for its incentives to
distort evidence and for the expense and complexity of its modes of discovery
and trial. [FN1] The shortcomings inhere in a system that leaves to partisans
the work of gathering and producing the factual material upon which adjudication
We have comforted ourselves
with the thought that a law-yerless system would be worse. [FN2] The excesses
of American adversary *824 justice would seem to pale
by comparison with a literally nonadversarial system--one in which litigants
would be remitted to faceless bureaucratic adjudicators and denied the
safeguards that flow from lawyerly intermediation.
The German advantage. The main
theme of this article is drawn from Continental civil procedure, exemplified
for me by the system that I know reasonably well, the West German. [FN3]
My theme is that, by assigning judges rather than lawyers to investigate
the facts, the Germans avoid the most troublesome aspects of our practice.
But I shall emphasize that the familiar contrast between our adversarial
procedure and the supposedly nonadversarial procedure of the Continental
tradition has been grossly overdrawn.
To be sure, since the greater
responsibility of the bench for fact-gathering is what distinguishes the
Continental tradition, a necessary (and welcome) correlative is that counsel's
role in eliciting evidence is greatly restricted. Apart from fact-gathering,
however, the lawyers for the parties play major and broadly comparable
roles in both the German and American systems. Both are adversary systems
of civil procedure. [FN4] There as here, the lawyers advance partisan
positions from first pleadings to final arguments. German litigators suggest
legal theories and lines of factual inquiry, they superintend and supplement
judicial examination of witnesses, they urge inferences from fact, they
discuss and distinguish precedent, they interpret statutes, and they formulate
views of the law that further the interests of their clients. I shall
urge that German experience shows that we would do better if we were greatly
to restrict the adversaries' role in fact-gathering.
The concluding theme of this article directs attention to recent trends
in American civil procedure. Having developed the view that judicialized
fact-gathering has immense advantages over traditional American practice,
I point to the growing manifestations of judicial control of fact- gathering
in certain strands of federal procedure. The Manual for Complex Litigation
[FN5] is infused with notions of judicial management of fact- gathering
for the multi-party Big Case, but there has been no natural stopping place,
and these techniques have been seeping into the conduct of ordinary litigation
in the development that has been called "managerial judging."'
In principle, managerial judging
is more compatible with the theory of German procedure than with our own.
Having now made the great leap from adversary control to judicial control
of fact-gathering, we would need to take one further step to achieve real
convergence with the German tradition: from judicial control to judicial
conduct of the fact-gathering process. In the success of managerial judging,
I see telling evidence for the proposition that judicial fact-gathering
could work well in a system that preserved much of the rest of what we
now have in civil procedure.
I should emphasize, however,
that the main concern of this article is not the sprawling Big Case, but
the traditional bipolar lawsuit in contract, tort, or entitlement. The
Big Case is testing and instructive but quantitatively unimportant. Ordinary
litigation is the place to compare and to judge civil procedural systems.
Outline. After sketching the
main features of German civil procedure (Part I), I contrast the striking
shortcomings of American procedure: the wastefulness and complexity of
our division into pretrial and trial procedure (Part II), and the truth-defeating
distortions incident to our system of partisan preparation and production
of witnesses (Part III) and experts. I devote special attention to the
German practice in obtaining impartial expert testimony (Part IV). I pause
to notice how flimsy are the theoretical justifications that have been
advanced in support of adversary domination of fact-gathering in civil
litigation (Part V). Because a more judge-centered fact-gathering process
would direct attention to the powers of the bench, I describe the incentive
structure of the German career judiciary (Part VI) and the appellate safeguards
for litigants (Part VII). Finally, I point to the potential for the convergence
*826 of the two systems arising from the appearance of managerial
judging in the United States (Part VIII).
OF GERMAN CIVIL PROCEDURE [FN8]
There are two fundamental differences
between German and Anglo-American civil procedure, and these differences
lead in turn to many others. First, the court rather than the parties'
lawyers takes the main responsibility for gathering and sifting evidence,
although the lawyers exercise a watchful eye over the court's work. Second,
there is no distinction between pretrial and trial, between discovering
evidence and presenting it. Trial is not a single continuous event. Rather,
the court gathers and evaluates evidence over a series of hearings, as
many as the circumstances require. [FN9]
The plaintiff's lawyer commences a lawsuit in Germany with a complaint.
Like its American counterpart, the German complaint narrates the key facts,
sets forth a legal theory, and asks for a remedy in damages or specific
relief. [FN10] Unlike an American complaint, however, the German document
proposes means of proof for its main factual contentions. [FN11] The major
documents in the plaintiff's possession that support his claim are scheduled
and often appended; other documents (for example, hospital files or government
records such as police accident reports or agency files) are indicated;
witnesses who are thought to know something helpful to the plaintiff's
position are identified. The defendant's answer follows the same pattern.
It should be emphasized, however, that neither plaintiff's nor defendant's
lawyer will have conducted any significant search for witnesses or for
other evidence unknown to his client. Digging for facts is primarily the
work of the judge. [FN12]
Judicial preparation. The judge
to whom the case is entrusted examines these pleadings and appended documents.
[FN13] He routinely sends for relevant public records. These materials
form the beginnings of the official dossier, the court file. All subsequent
submissions of counsel, and all subsequent evidence-gathering, will be
entered in the dossier, which is open to counsel's inspection continuously.
the judge develops a first sense of the dispute from these materials,
he will schedule a hearing and notify the lawyers. He will often invite
and sometimes summon the parties as well as their lawyers to this or subsequent
hearings. If the pleadings have identified witnesses whose testimony seems
central, the judge may summon them to the initial hearing as well. [FN14]
Hearing. The circumstances
of the case dictate the course of the hearing. Sometimes the court will
be able to resolve the case by discussing it with the lawyers and parties
and suggesting avenues of compromise. If the case remains contentious
and witness testimony needs to be taken, the court will have learned enough
about the case to determine a sequence for examining witnesses.
Examining and recording. The
judge serves as the examiner-in-chief. At the conclusion of his interrogation
of each witness, counsel for either party may pose additional questions,
but counsel are not prominent as examiners. [FN15] Witness testimony is
seldom recorded verbatim; rather, the judge pauses from time to time to
dictate a summary of the testimony into the dossier. [FN16] The lawyers
sometimes suggest improvements in the wording of these summaries, in order
to preserve or to emphasize nuances important to one side or the other.
Since the proceedings in a
difficult case may require several hearings extending across many months,
these summaries of concluded testimony--by encapsulating succinctly the
results of previous hearings--allow the court to refresh itself rapidly
for subsequent hearings. The summaries also serve as building blocks from
which the court will ultimately fashion the findings of fact for its written
judgment. If the case is appealed, these concise summaries constitute
the record for the reviewing court. (We shall see that the first appellate
instance in German procedure involves review de novo, in which the appellate
court can form its own view of the facts, both from the record and, if
appropriate, by recalling witnesses or summoning new ones. [FN17]
who has had to wade through the longwinded narrative of American pretrial
depositions and trial transcripts (which preserve every inconsequential
utterance, every false start, every stammer) will see at once the economy
of the German approach to taking and preserving evidence. [FN18] Our incentives
run the other way; we pay court reporters by the page and lawyers mostly
by the hour.
A related source of dispatch
in German procedure is the virtual absence of any counterpart to the Anglo-American
law of evidence. German law exhibits expansive notions of testimonial
privilege, especially for potential witnesses drawn from the family. [FN19]
But German procedure functions without the main chapters of our law of
evidence, those rules (such as hearsay) that exclude probative evidence
for fear of the inability of the trier of fact to evaluate the evidence
purposively. In civil litigation German judges sit without juries (a point
to which this essay recurs [FN20]); evidentiary shortcomings that would
affect admissibility in our law affect weight or credit in German law.
Expertise. If an issue of technical
difficulty arises on which the court or counsel wishes to obtain the views
of an expert, the court--in consultation with counsel--will select the
expert and define his role. (This aspect of the procedure I shall discuss
particularly in Part IV below.)
Further contributions of counsel.
After the court takes witness testimony or receives some other infusion
of evidence, counsel have the opportunity to comment orally or in writing.
Counsel use these submissions in order to suggest further proofs or to
advance legal theories. Thus, nonadversarial proof-taking alternates with
adversarial dialogue across as many hearings as are necessary. The process
merges the investigatory function of our pretrial discovery and the evidence-presenting
function of our trial. Another manifestation of the comparative efficiency
of German procedure is that a witness is ordinarily examined only once.
Contrast the American practice of partisan interview and preparation,
pretrial deposition, preparation for trial, and examination and cross-examination
at trial. These many steps take their toll in expense and irritation.
Judgment. After developing
the facts and hearing the adversaries' views, the court decides the case
in a written judgment that *830 must contain full findings
of fact and make reasoned application of the law. [FN21]
CONTROL OF SEQUENCE
From the standpoint of comparative
civil procedure, the most important consequence of having judges direct
fact-gathering in this episodic fashion is that German procedure functions
without the sequence rules to which we are accustomed in the Anglo-American
procedural world. The implications for procedural economy are large. The
very concepts of "plaintiff's case"' and "'defendant's
case"' are unknown. In our system those concepts function as traffic
rules for the partisan presentation of evidence to a passive and ignorant
trier. By contrast, in German procedure the court ranges over the entire
case, constantly looking for the jugular--for the issue of law or fact
that might dispose of the case. [FN22] Free of constraints that arise
from party presentation of evidence, the court investigates the dispute
in the fashion most likely to narrow the inquiry. A major job of counsel
is to guide the search by directing the court's attention to particularly
cogent lines of inquiry.
Suppose that the court has
before it a contract case that involves complicated factual or legal issues
about whether the contract was formed, and if so, what its precise terms
were. But suppose further that the court quickly recognizes (or is led
by submission of counsel to recognize) that some factual investigation
might establish an affirmative defense--illegality, let us say-- that
would vitiate the contract. Because the court functions without sequence
rules, it can postpone any consideration of issues that we would think
of as the plaintiff's case--here the questions concerning the formation
and the terms of the contract. Instead, the court can concentrate the
entire initial inquiry on what we would regard as a defense. If, in my
example, the court were to unearth enough evidence to allow it to conclude
that the contract was illegal, no investigation would ever be done on
the issues of formation and terms. A defensive issue that could only surface
in Anglo-American procedure following full pretrial and trial ventilation
of the whole of the plaintiff's case can be brought to the fore in German
of what makes our discovery system so complex is that, on account of our
division into pretrial and trial, we have to discover for the entire case.
We investigate everything that could possibly come up at trial, because
once we enter the trial phase we can seldom go back and search for further
evidence. [FN23] By contrast, the episodic character of German fact- gathering
largely eliminates the danger of surprise; if the case takes an unexpected
turn, the disadvantaged litigant can count on developing his response
in another hearing at a later time. Because there is no pretrial discovery
phase, fact-gathering occurs only once; and because the court establishes
the sequence of fact-gathering according to criteria of relevance, unnecessary
investigation is minimized. In the Anglo-American procedural world we
value the early-disposition mechanism, especially summary judgment, for
issues of law. But for factladen issues, our fixed-sequence rule (plaintiff's
case before defendant's case) and our single-continuous-trial rule largely
The episodic character of German
civil procedure--Benjamin Kaplan called it the "conference method"'
[FN24] of adjudication--has other virtues: It lessens tension and theatrics,
and it encourages settlement. Countless novels, movies, plays, and broadcast
serials attest to the dramatic potential of the Anglo- American trial.
The contest between opposing counsel; the potential for surprise witnesses
who cannot be rebutted in time; the tricks of adversary examination and
cross-examination; the concentration of proof-taking and verdict into
a single, continuous proceeding; the unpredictability of juries and the
mysterious opacity of their conclusory verdicts--these attributes of the
Anglo-American trial make for good theatre. German civil proceedings have
the tone not of the theatre, but of a routine business meeting--serious
rather than tense. When the court inquires and directs, it sets no stage
for advocates to perform. The forensic skills of counsel can wrest no
material advantage, and the appearance of a surprise witness would simply
lead to the scheduling of a further hearing. In a system that cannot distinguish
between dress rehearsal and opening night, there is scant occasion for
In this business-like system
of civil procedure the tradition is strong that the court promotes compromise.
[FN25] The judge who gathers *832 the facts soon knows
the case as well as the litigants do, and he concentrates each subsequent
increment of fact-gathering on the most important issues still unresolved.
As the case progresses the judge discusses it with the litigants, sometimes
indicating provisional views of the likely outcome. [FN26] He is, therefore,
strongly positioned to encourage a litigant to abandon a case that is
turning out to be weak or hopeless, or to recommend settlement. The loserpays
system of allocating the costs of litigation gives the parties further
incentive to settle short of judgment. [FN27]
Adversary control of fact-gathering
in our procedure entails a high level of conflict between partisan advantage
and orderly disclosure of the relevant information. Marvin Frankel put
this point crisply when he said that "it is the rare case in which
either side yearns to have the witnesses, or anyone, give the whole truth."'
If we had deliberately set out to find a means of impairing the reliability of witness testimony, we could not have done much better than the existing system of having partisans prepare witnesses in advance of trial and examine and cross-examine them at trial. Jerome Frank described the problem a generation ago:
[The witness] often detects
what the lawyer hopes to prove at the trial. If the witness desires to
have the lawyer's client win the case, he will often, unconsciously, mold
his story accordingly. Telling and re-telling it to the lawyer, he will
honestly believe that his story, as he narrates it in court, is true,
although it importantly deviates from what he originally believed. [FN29]
Thus, said Frank, "the
partisan nature of trials tends to make partisans of the witnesses."'
Cross-examination at trial--our
only substantial safeguard against this systematic bias in the testimony
that reaches our courts--is a frail and fitful palliative. Cross-examination
is too often ineffective to undo the consequences of skillful coaching.
Further, because cross-examination allows so much latitude for bullying
and other truth-defeating stratagems, it is frequently the source of fresh
distortion when brought to bear against truthful testimony. [FN31] As
a leading litigator boasted recently in an ABA publication: "*834
By a carefully planned and executed cross-examination, I can raise at
least a slight question about the accuracy of [an adverse] witness's story,
or question his motives or impartiality."' [FN32]
When we cross the border into
German civil procedure, we leave behind all traces of this system of partisan
preparation, examination, and cross- examination of witnesses. German
law distinguishes parties from witnesses. A German lawyer must necessarily
discuss the facts with his client, and based on what his client tells
him and on what the documentary record discloses, the lawyer will nominate
witnesses whose testimony might turn out to be helpful to his client.
As the proofs come in, they may reveal to the lawyer the need to nominate
further witnesses for the court to examine. But the lawyer stops at nominating;
virtually never will he have occasion for out-of-court contact with a
witness. Not only would such contact be a serious ethical breach, it would
be self-defeating. "German judges are given to marked and explicit
doubts about the reliability of the testimony of witnesses who previously
have discussed the case with counsel or who have consorted unduly with
a party."' [FN33]
No less a critic than Jerome
Frank was prepared to concede that in American procedure the adversaries
"sometimes do bring into court evidence which, in a dispassionate
inquiry, might be overlooked."' [FN34] That is a telling argument
for including adversaries in the fact-gathering process, but not for letting
them run it. German civil procedure preserves party interests in fact-
gathering. *835 The lawyers nominate witnesses, attend
and supplement court questioning, and develop adversary positions on the
significance of the evidence. Yet German procedure totally avoids the
distortions incident to our partisan witness practice.
The European jurist who visits
the United States and becomes acquainted with our civil procedure typically
expresses amazement at our witness practice. His amazement turns to something
bordering on disbelief when he discovers that we extend the sphere of
partisan control to the selection and preparation of experts. In the Continental
tradition experts are selected and commissioned by the court, although
with great attention to safeguarding party interests. In the German system,
experts are not even called witnesses. They are thought of as "judges'
Perverse incentives. At the
American trial bar, those of us who serve as expert witnesses are known
as "saxophones."' This is a revealing term, as slang often is.
[FN36] The idea is that the lawyer plays the tune, manipulating the expert
as though the expert were a musical instrument on which the lawyer sounds
the desired notes. I sometimes serve as an expert in trust and pension
cases, and I have experienced the subtle pressures to join the team--to
shade one's views, to conceal doubt, to overstate nuance, to downplay
weak aspects of the case that one has been hired to bolster. Nobody likes
to disappoint a patron; and beyond this psychological pressure is the
financial inducement. Money changes hands upon the rendering of expertise,
but the expert can run his meter only so long as his patron litigator
likes the tune. Opposing counsel undertakes a similar exercise, hiring
and schooling another expert to parrot the contrary position. The result
is our familiar battle of opposing experts. The more measured and impartial
an expert is, the less likely he is to be used by either side. [FN37]
*836 At trial, the battle of experts tends to baffle the trier, especially in jury courts. If the experts do not cancel each other out, the advantage is likely to be with the expert whose forensic skills are the more enticing. The system invites abusive cross-examination. Since each expert is party-selected and party-paid, he is vulnerable to attack on credibility regardless of the merits of his testimony. A defense lawyer recently bragged about his technique of cross-examining plaintiffs' experts in tort cases. Notice that nothing in his strategy varies with the truthfulness of the expert testimony he tries to discredit:
A mode of attack ripe with
potential is to pursue a line of questions which, by their form and the
jury's studied observation of the witness in response, will tend to cast
the expert as a "professional witness."' By proceeding in this
way, the cross-examiner will reap the benefit of a community attitude,
certain to be present among several of the jurors, that bias can be purchased,
almost like a commodity. [FN38]
Thus, the systematic incentive
in our procedure to distort expertise leads to a systematic distrust and
devaluation of expertise. Short of forbidding the use of experts altogether,
we probably could not have designed a procedure better suited to minimize
the influence of expertise. [FN39]
The Continental tradition.
European legal systems are, by contrast, expert-prone. [FN40] Expertise
is frequently sought. The literature emphasizes the value attached to
having expert assistance *837 available to the courts
in an age in which litigation involves facts of ever-greater technical
difficulty. [FN41] The essential insight of Continental civil procedure
is that credible expertise must be neutral expertise. Thus, the responsibility
for selecting and informing experts is placed upon the courts, although
with important protections for party interests.
Selecting the expert. German
courts obtain expert help in lawsuits the way Americans obtain expert
help in business or personal affairs. If you need an architect, a dermatologist,
or a plumber, you do not commission a pair of them to take preordained
and opposing positions on your problem, although you do sometimes take
a second opinion. Rather, you take care to find an expert who is qualified
to advise you in an objective manner; you probe his advice as best you
can; and if you find his advice persuasive, you follow it.
When in the course of winnowing
the issues in a lawsuit a German court determines that expertise might
help resolve the case, the court selects and instructs the expert. The
court may decide to seek expertise on its own motion, or at the request
of one of the parties. [FN42] The code of civil procedure allows the court
to request nominations from the parties [FN43]--indeed, the code requires
the court to use any expert upon whom the parties agree [FN44]-- but neither
practice is typical. In general, the court takes the initiative in nominating
and selecting the expert.
The only respect in which the
code of civil procedure purports to narrow the court's discretion to choose
the expert is a provision whose significance is less than obvious: "If
experts are officially designated for certain fields of expertise, other
persons should be chosen only when special circumstances require."'
[FN45] One looks outside the code of civil procedure, to the federal statutes
regulating various professions and trades, for the particulars on official
designation. [FN46] For the professions, the statutes typically authorize
*838 the official licensing bodies to assemble lists of professionals
deemed especially suited to serve as experts. In other fields, the state
governments designate quasi-public bodies to compile such lists. For example,
under section 36 of the federal code on trade regulation, the state governments
empower the regional chambers of commerce and industry (Industrie- und
Handelskammern) to identify experts in a wide variety of commercial and
technical fields. That statute directs the empowered chamber to choose
as experts persons who have exceptional knowledge of the particular specialty
and to have these persons sworn to render professional and impartial expertise.
[FN47] The chamber circulates its lists of experts, organized by specialty
and subspecialty, to the courts. German judges receive sheaves of these
lists as the various issuing bodies update and recirculate them.
Current practice. In 1984 I
spent a little time interviewing judges in Frankfurt about their practice
in selecting experts. [FN48] My sample of a handful of judges is not large
enough to impress statisticians, but I think the picture that emerges
from serious discussion with people who operate the system is worth reporting.
Among the judges with whom I spoke, I found unanimity on the proposition
that the most important factor predisposing a judge to select an expert
is favorable experience with that expert in an earlier case. Experts thus
build reputations with the bench. Someone who renders a careful, succinct,
and well-substantiated report and who responds effectively to the subsequent
questions of the court and the parties will be remembered when another
case arises in his specialty. Again we notice that German civil procedure
tracks the patterns of decision-making in ordinary business and personal
affairs: If you get a plumber to fix your toilet and he does it well,
you incline to hire him again.
When judges lack personal experience
with appropriate experts, I am told, they turn to the authoritative lists
described above. If expertise is needed in a field for which official
lists are unavailing, the court is thrown upon its own devices. The German
judge then gets on the phone, working from party suggestions and from
the court's own research, much in the fashion of an American litigator
hunting for expertise. In these cases there is a tendency to turn, first,
to the bodies that prepare expert lists in cognate areas; *839
or, if none, to the universities and technical institutes.
If enough potential experts
are identified to allow for choice, the court will ordinarily consult
party preferences. In such circumstances a litigant may ask the court
to exclude an expert whose views proved contrary to his interests in previous
litigation or whom he otherwise disdains. The court will try to oblige
the parties' tastes when another qualified expert can be substituted.
Nevertheless, a litigant can formally challenge an expert's appointment
only on the narrow grounds for which a litigant could seek to recuse a
Preparing the expert. The court
that selects the expert instructs him, in the sense of propounding the
facts that he is to assume or to investigate, and in framing the questions
that the court wishes the expert to address. [FN50] In formulating the
expert's task, as in other important steps in the conduct of the case,
the court welcomes adversary suggestions. If the expert should take a
view of premises (for example, in an accident case or a building-construction
dispute), counsel for both sides will accompany him. [FN51]
Safeguards. The expert is ordinarily
instructed to prepare a written opinion. [FN52] When the court receives
the report, it is circulated to the litigants. The litigants commonly
file written comments, to which the expert is asked to reply. The court
on its own motion may also request the expert to amplify his views. If
the expert's report remains in contention, the court will schedule a hearing
at which counsel for a dissatisfied litigant can confront and interrogate
The code of civil procedure reserves to the court the power to order a further report by another expert if the court should deem the first report unsatisfactory. [FN53] A litigant dissatisfied with the expert may encourage the court to invoke its power to name a second expert. The code of criminal procedure has a more explicit standard for such cases, which is worth noticing because the literature suggests that courts have similar instincts in civil procedure. [FN54] The court may refuse a litigant's motion to engage a further expert in a *840 criminal case, the code says,
if the contrary of the fact
concerned has already been proved through the former expert opinion; this
[authority to refuse to appoint a further expert] does not apply if the
expertise of the former expert is doubted, if his report is based upon
inaccurate factual presuppositions, if the report contains contradictions,
or if the new expert has available means of research that appear superior
to those of a former expert. [FN55]
When, therefore, a litigant
can persuade the court that an expert's report has been sloppy or partial,
that it rests upon a view of the field that is not generally shared, or
that the question referred to the expert is exceptionally difficult, the
court will commission further expertise. [FN56]
A litigant may also engage
his own expert, much as is done in the Anglo- American procedural world,
in order to rebut the court-appointed expert. The court will discount
the views of a party-selected expert on account of his want of neutrality,
but cases occur in which he nevertheless proves to be effective. Ordinarily,
I am told, the court will not in such circumstances base its judgment
directly upon the views of the party-selected expert; rather, the court
will treat the rebuttal as ground for engaging a further court-appointed
expert (called an Oberexperte, literally an "upper"' or "superior"'
expert), whose opinion will take account of the rebuttal. [FN57]
To conclude: In the use of
expertise German civil procedure strikes an adroit balance between nonadversarial
and adversarial values. Expertise is kept impartial, but litigants are
protected against error or caprice through a variety of opportunities
for consultation, confrontation, and rebuttal.
The American counterpart. It
may seem curious that we make so little use of court-appointed experts
in our civil practice, since "[t]he inherent power of a trial judge
to appoint an expert of his own choosing is virtually unquestioned"'
[FN58] and has been extended and codified in the Federal Rules of Evidence
[FN59] and the Uniform *841 Rules of Evidence (Model
Expert Testimony Act). [FN60] The literature displays both widespread
agreement that our courts virtually never exercise this authority, and
a certain bafflement about why. [FN61]
While "simple inertia"'
[FN62] doubtless accounts for much (our judges "are accustomed to
presiding over acts initiated by the parties"' [FN63]), comparative
example points to a further explanation. The difficulty originates with
the locktight segmentation of our procedure into pretrial and trial compartments,
and with the tradition of partisan domination of the pretrial. Until lately,
it was exceptional for the judge to have detailed acquaintance with the
facts of the case until the parties presented their evidence at trial.
By then the adversaries would have engaged their own experts, and time
would no longer allow a court-appointed expert to be located and prepared.
Effective use of court-appointed experts as exemplified in German practice
presupposes early and extensive judicial involvement in shaping the whole
of the proofs. It seems possible that the rise of managerial judging (discussed
below in Part VIII) may at last achieve that precondition for effective
use of court-appointed experts in our system. [FN64]
OF ADVERSARY THEORY
The case against adversary
domination of fact-gathering is so compelling that we have cause to wonder
why our system tolerates it. Because there is nothing to be said in support
of coached witnesses, and very little to be said in favor of litigation-biased
experts, defenders of the American status quo are left to argue that the
advantages of our adversary procedure counterbalance these grievous, truth-defeating
distortions. "You have to take the bad with the good; if you want
adversary safeguards, you are stuck with adversary excesses."DD'
The false conflict. This all-or-nothing
argument overlooks the fundamental distinction between fact-gathering
and the rest of civil litigation. Outside the realm of fact-gathering,
German civil procedure is about as adversarial as our own. Both systems
welcome the lawyerly contribution to identifying legal issues and
*842 sharpening legal analysis. [FN65] German civil procedure
is materially less adversarial than our own only in the fact-gathering
function, where partisanship has such potential to pollute the sources
Accordingly, the proper question
is not whether to have law-yers, but how to use them; not whether to have
an adversarial component to civil procedure, but how to prevent adversarial
excesses. If we were to incorporate the essential lesson of the German
system in our own procedure, we would still have a strongly adver sarial
civil procedure. We would not, however, have coached witnesses and litigation-biased
The confusion with criminal
procedure. Much of the rhetoric [FN66] celebrating unrestrained adversary
domination of judicial proceedings stems from the criminal process, where
quite different policies are at work. [FN67] It has been argued that partisan
fact-gathering is appropriate to the special values of criminal procedure--the
presumption of innocence, the beyond- reasonable-doubt standard of proof,
and the privilege against self- incrimination. [FN68] Bestowing upon the
criminal accused the right to conduct his own fact-gathering, despite
the risk that he may misuse this power in truth-defeating ways, can be
understood as one more way of adjusting the scales to protect the accused.
"The specter of capital punishment and the often barbaric conditions
of our penal institutions in the past and present, as well as the unique
stigma of conviction of a crime, have had a profound impact upon the protections
accorded the defendant and the freedom of action accorded the defense
lawyer in a criminal case."' [FN69] While I happen to disagree that
adversary procedure is a particularly effective way to implement
*843 our concern for safeguard in the criminal process, [FN70]
my present point is simply that regardless of right or wrong, that concern
is absent in the world of civil procedure. In civil lawsuits we are not
trying systematically to err in favor of one class of litigants.
Equality of representation.
The German system gives us a good perspective on another great defect
of adversary theory, the problem that the Germans call "'Waffenungleichheit"'--literally,
inequality of weapons, or in this instance, inequality of counsel. In
a fair fight the pugilists must be well matched. You cannot send me into
a ring with Muhammed Ali if you expect a fair fight. The simple truth
is that very little in our adversary system is designed to match combatants
of comparable prowess, even though adversarial prowess is a main factor
affecting the outcome of litigation. Adversary theory thus presupposes
a condition that adversary practice achieves only indifferently. It is
a rare litigator in the United States who has not witnessed the spectacle
of a bumbling adversary whose poor discovery work or inability to present
evidence at trial caused his client to lose a case that should have been
won. Disparity in the quality of legal representation can make a difference
in Germany, too, but the active role of the judge places major limits
on the extent of the injury that bad lawyering can work on a litigant.
[FN71] In German procedure both parties get the same fact-gatherer--the
judge. (I discuss below (in Part VI) the incentives and safeguards designed
to attract and motivate able judges.)
Prejudgment. Perhaps the most influential justification for adversary domination of fact-gathering has been an argument put forward by Lon Fuller: Nonadversarial procedure risks prejudgment--that is, prematurity in judgment. [FN72] Fuller worried that the *844 judge would make up his mind too soon.
What generally occurs in practice is that at some early point a familiar pattern will seem to emerge from the evidence; an accustomed label is waiting for the case and, without awaiting further proofs, this label is promptly assigned to it. . . .
An adversary presentation seems
the only effective means for combatting this natural human tendency to
judge too swiftly in terms of the familiar that which is not yet fully
known. The arguments of counsel hold the case, as it were, in suspension
between two opposing interpretations of it. While the proper classification
of the case is thus kept unresolved, there is time to explore all of its
peculiarities and nuances. [FN73]
This passage obtains much of
its force from the all-or-nothing contrast that so misdescribes German
civil procedure. In a system like the German, which combines judicial
fact-gathering with vigorous and continuing adversarial efforts in nominating
lines of factual inquiry and analyzing factual and legal issues, the adversaries
perform just the role that Fuller lauds, helping hold the decision in
suspension while issues are framed and facts explored.
In German procedure counsel
oversees and has means to prompt a flagging judicial inquiry; but quite
apart from that protection, is it really true that a "familiar pattern"'
would otherwise beguile the judge into investigating too sparingly? If
so, it seems odd that this asserted "natural human tendency"'
towards premature judgment does not show up in ordinary business and personal
decision-making, whose patterns of inquiry resemble the fact-gathering
process in German civil procedure. Since the decision-maker does his own
investigating in most of life's decisions, it seems odd to despair of
prematurity only when that normal mode of decision-making is found to
operate in a courtroom. Accordingly, I think that Fuller overstates the
danger of prematurity that inheres in allowing the decision-maker to conduct
the fact-gathering; but to the extent that the danger is real, German
civil procedure applies just the adversarial remedy that Fuller recommends.
Depth. Fuller's concern about
prematurity shades into a different*845 issue: how to
achieve appropriate levels of depth in fact-gathering. Extra investment
in search can almost always turn up further proofs that would be at least
tenuously related to the case. Adversary domination of fact-gathering
privatizes the decision about what level of resources to invest in the
case. The litigants who are directly interested in the outcome decide
how much to spend on search. In German procedure, by contrast, these partisan
calculations of self-interest are subordinated, for a variety of reasons.
The initiative in fact-gathering is shared with the judge; and the German
system of reckoning and allocating the costs of litigation is less sensitive
to the cost of incremental investigative steps than in our system where
each side pays for the proofs that it orders. [FN75] On the other hand,
the German judge cannot refuse to investigate party-nominated proofs without
reason, [FN76] and this measure of party control greatly narrows the difference
between the two systems.
Writing in 1958, Kaplan and
his co-authors recorded their "impression"' that German civil
"proceedings do not in practice serve as an engine of discovery comparable
in strength to the modern American methods,"' [FN77] in part because
German courts are hostile to fishing. [FN78] Further, the authors worried
that the technique of *846 recording witness testimony
in succinct summaries could bleach out "[f]ine factual differentiations."'
[FN79] They found German procedure to be "far less preoccupied than
the American with minute investigation of factual detail of reliability
of individual witnesses."' [FN80]
Defenders of the American status
quo may take too much comfort from these observations. A main virtue of
German civil procedure, we recall, is that the principle of judicial control
of sequence works to confine the scope of fact- gathering to those avenues
of inquiry deemed most likely to resolve the case. Fact-gathering occurs
when the unfolding logic of the case dictates that investigation of particular
issues is needed. That practice does indeed contrast markedly with the
inclination of American litigators "to leave no stone unturned, provided,
of course, they can charge by the stone."' [FN81] The primary reason
that German courts do less fact-gathering than American lawyers is that
the Germans eliminate the waste. Likewise, when American observers notice
that there is less harrying of witnesses with "those elaborate testings
of credibility familiar to American courtrooms,"' [FN82] I incline
to think that the balance of advantage rests with the Germans, since so
*847 much of what passes for cross-examination in our procedure
is deliberately truth- defeating. [FN83]
Interestingly, detractors of
Continental procedure have also voiced the opposite criticism--complaining
of excessive rather than inadequate depth. Stephan Landsman, for example,
defending American adversary practice against the complaint that it sets
too low a value on the discovery of material truth, warns against inquisitorial
zeal. "The weakness of human perception, memory, and expression will
often render the discovery of material truth impossible. To become preoccupied
with truth may be both naive and futile. It is to the advantage of the
adversary system that it does not define its objectives in such an absolute
and unrealistic fashion."' [FN84] This argument overlooks a crucial
distinction--between the case with unknowable facts and the case in which
the truth-defeating excesses of American adversary fact-gathering cause
knowable facts to be obscured. The former scarcely excuses the latter.
I side with Blackstone in thinking that fact-finding is the central task
of civil litigation. "[E]xperience will abundantly shew,"' he
wrote, "that above a hundred of our lawsuits arise from disputed
facts, for one where the law is doubted of."' [FN85] Resolve the
facts, resolve what actually happened, and the law usually takes care
The choice between adversarial
and judicial conduct of fact-gathering need not correlate strongly with
the level of search achieved in a legal system. Factors unrelated to that
choice, such as the clarity of the substantive law or the attitude toward
fishing, will influence the levels of search. If the Germans saw any virtue
in the American practice of allowing the adversaries to cascade each other
with undigested files and records, they could in principle incorporate
our luxuriant fishing tradition into their procedure (perish the thought)
while still preferring court-appointed experts and *848
forbidding adversary contact with nonparty witnesses. Furthermore, within
the realm of judge-conducted fact-gathering, we would expect the levels
of search to vary significantly among legal systems, depending upon the
incentives for judicial diligence, the scope of adversary oversight, and
the effectiveness of appellate review.
Viewed comparatively from the
Anglo-American perspective, the greater authority of the German judge
over fact-gathering comes at the expense of the lawyers for the parties.
Adversary influence on fact-gathering is deliberately restrained. Furthermore,
in routine civil procedure, German judges do not share power with jurors.
There is no civil jury. [FN86]
Because German procedure places
upon the judge the responsibility for fact- gathering, the danger arises
that the job will not be done well. The American system of partisan fact-gathering
has the virtue of its vices: It aligns responsibility with incentive.
Each side gathers and presents proofs according to its own calculation
of self-interest. This privatization is an undoubted safeguard against
official sloth. After all, who among us has not been treated shabbily
by some lazy bureaucrat in a government department? And who would want
to have that ugly character in charge of one's lawsuit?
The answer to that concern
in the German tradition is straightforward: The judicial career must be
designed in a fashion that creates incentives for diligence and excellence.
The idea is to attract very able people to the bench, and to make their
path of career advancement congruent with the legitimate interests of
The career judiciary. The distinguishing
attribute of the bench in Germany (and virtually everywhere else in Europe)
is that the profession of judging is separate from the profession of lawyering.
Save in exceptional circumstances, the judge is not an ex-lawyer like
his Anglo-American counterpart. Rather, he begins his professional career
as a judge.
In Germany judges and lawyers
undergo a common preparatory schooling. After completing a prescribed
course of university legal education that lasts several years, [FN87]
the young jurist sits a *849 first state examination.
After passing this examination satisfactorily, he enters upon an apprenticeship
that now lasts two and one-half years. He clerks for judges in the civil
and criminal courts, assists in the prosecutor's office, and works in
a lawyer's office. At the conclusion of this tour of duty, the young jurist
sits a second state examination, remotely akin to our bar examination,
which concludes the certification process. Thereafter, the career lines
of judge and lawyer diverge.
Recruitment. Although West
Germany is a federal state the state and federal courts comprise an integrated
system. The courts of first instance and the first layer of appellate
courts are state courts, while the second (and final) layer of appellate
jurisdiction operates at the federal level. [FN88] Thus, even though the
basic codes of civil and criminal law and procedure are federal codes,
the state courts have exclusive jurisdiction until the final appellate
instance. It follows that most judges are state judges; [FN89] and since
appointment to the federal bench is by way of promotion from the state
courts, [FN90] all entry-level recruitment to the bench occurs at the
In each of the eleven federal
states, the ministry of justice is responsible for staffing the courts.
Entry-level vacancies are advertised and applications entertained from
young jurists. The judiciary is a prized career: influential, interesting,
secure, and (by comparison with practice of the bar) prestigious and not
badly compensated. "[O]nly the graduates with the best examination
results have any chance of entering the judicial corps."' [FN91]
Advancement. A candidate who
is accepted begins serving as a judge without any prior legal-professional
experience, typically in *850 his late twenties. [FN92]
At the outset his position is probationary, although he must be promoted
to tenure or dismissed within five years. [FN93] His first assignment
may be to a court of petty jurisdiction (Amtsgericht), or else he will
become the junior member of a collegial chamber of the main court of general
jurisdiction (Landgericht, hereafter LG), where he can receive guidance
from experienced judges. [FN94]
The work of a German judge
is overseen and evaluated by his peers throughout his career, initially
in connection with his tenure review, and thereafter for promotion through
the several levels of judicial office and salary grades. A judge knows
that his every step will be grist for the regular periodic reviews that
will fill his life-long personnel file. His "efficiency rating"'
[FN95] is based in part upon objective factors, such as caseload discharge
rates and reversal rates, and in part on subjective peer evaluation. The
presiding judge of a chamber has special responsibility for evaluating
the work of the younger judges who serve with him, but the young judges
are rotated through various chambers in the course of their careers, and
this reduces the influence of an aberrant rating from any one presiding
judge. These evaluations by senior judges pay particular regard to (1)
a judge's effectiveness in conducting legal proceedings, including fact-gathering,
and his treatment of witnesses and litigants; and (2) the quality of his
opinions--his success in mastering and applying the law to his cases.
This meritocratic system of
review and promotion is meant to *851 motivate the judge
to perform at his best. In the main first-instance court (LG), which is
sectioned into many three-judge panels called chambers, the judge aspires
to advance to the position of presiding judge of a chamber, a job of greater
importance and status with corresponding salary improvement. From there
the main career path leads to the first appellate instance (Ober-landesgericht,
hereafter OLG), which is also divided into many chambers, each led by
a presiding judge who is promoted to that job after distinguishing himself
as an ordinary judge of the court. [FN97] And the final appellate instance,
the federal supreme court for nonconstitutional law (Bundesgerichtshof,
hereafter BGH), is staffed almost entirely with judges who have been promoted
from the OLG. [FN98]
Meritocratic review and promotion
are meant to reward and thereby to inspire judges to be diligent in fact-gathering,
to stay current in the law, and to be fair and accurate in the conduct
of hearings and the rendering of judgments.
Specialization. I have been
speaking throughout this article of the ordinary courts. Of the 17,000
judges who were sitting in Germany as of 1983, the most recent year for
which the statistics are published, 13,000 sat in the ordinary courts.
[FN99] The others served in the specialized court systems for administrative
law, tax and fiscal matters, labor and employment law, and social security.
[FN100] Furthermore, *852 the Germans operate a separate
supreme constitutional court (Bundesverfassungsgericht), to which the
other courts refer some contentious constitutional business. Appointment
to the constitutional court is by design highly political; members are
seldom part of the career judiciary that I have been describing. [FN101]
The specialized courts and
the constitutional court siphon off business that Americans would expect
to see in the ordinary courts. Within the German ordinary courts of first
instance there are special divisions that have counterparts in our tradition--for
crime, for what we would call probate, for domestic relations. In addition,
commercial law matters are removed to specialized chambers. [FN102] Thus,
the German ordinary courts of first instance have a somewhat narrower
diet than our own.
At the appellate level, including
the first appellate instance (OLG) that proceeds by review de novo, there
is extensive specialization. An OLG is quite large by our standards, sometimes
staffed with more than a hundred judges, who sit in chambers containing
four or five judges. Cases are allocated among these chambers on the basis
of subject matter. [FN103] All the medical malpractice cases go to one
chamber, the maritime cases to another, and so forth. This system permits
the judges to develop over the years just that sort of expertise in legal
subspecialties that we expect of lawyers, particularly lawyers in large-firm
practice, in the United States. The litigants get judges who know something
about the field, in contradistinction to the calculated amateurism of
our appellate tradition. [FN104]
Political influence. Judicial
appointments and promotions issue *853 in the name of
the state or federal minister of justice, who is an important political
official, usually a member of the state or federal parliament and of the
cabinet. The minister acts in consultation with an advisory commission
of senior judges; [FN105] in some of the German states that commission
has a formal veto power.
Directly political concerns
appear to be very subordinated in the selection and advancement of judges.
Because this subject is not much ventilated in the literature, I have
inquired about it when talking with German judges and legal academics.
The impression I have gained is that political considerations do not materially
affect appointment or promotion until the level of the federal supreme
court (BGH). [FN106] Party balance is given weight in BGH appointments,
but political connections do not substitute for merit. Positions on the
BGH go to judges who have distinguished themselves on the OLG.
We must remember that the decision
to isolate important components of constitutional and administrative-law
jurisdiction outside the ordinary courts in Germany lowers the political
stakes in judicial office, by comparison with our system, in which every
federal district judge (and for that matter, every state judge) purports
to brandish the Constitution and thus to be able to wreak major social
and institutional change.
American contrasts. If I were
put to the choice of civil litigation under the German procedure that
I have been praising in this article or under the American procedure that
I have been criticizing, I might have qualms about choosing the German.
The likely venue of a lawsuit of mine would be the state court in Cook
County, Illinois, and I must admit that I distrust the bench of that court.
The judges are selected by a process in which the criterion of professional
competence is at best an incidental value. [FN107] Further, *854
while decent people do reach the Cook County bench in surprising numbers,
events have shown that some of their colleagues are crooks. If my lawsuit
may fall into the hands of a dullard or a thug, I become queasy about
increasing his authority over the proceedings.
German-style judicial responsibility
for fact-gathering cannot be lodged with the Greylord judiciary. Remodeling
of civil procedure is intimately connected to improvement in the selection
of judges. I do not believe that we would have to institute a German-style
career judiciary in order to reform American civil procedure along German
lines, although I do think that Judge Frankel was right to "question
whether we are wise"' to disdain the Continental model, and to "'wonder
now whether we might benefit from some admixture of such [career judges]
to leaven or test our trial benches of elderly lawyers."' [FN108]
The difference in quality between the state and federal trial benches
in places like Cook County is sufficient to remind us that measures far
short of adopting the Continental career judiciary can bring about material
will long remain uncomfortable at the prospect of a more bureaucratic
judiciary. We have not had good experience attracting and controlling
an able career bureaucracy in the higher realms of public administration,
although we have scarcely tried. Some observers point to that elusive
construct, national character. Europeans in general and Germans in particular
are thought to be more respectful of authority, hence better disposed
toward the more bureaucratic mode of justice that judicialized fact- gathering
Cultural differences surely
do explain something of why institutional and procedural differences arise
in different legal systems. The important question for present purposes
is what weight to attach to this factor, and my answer is, "Not much."'
It is all too easy to allow the cry of "cultural differences"'
to become the universal apologetic that permanently sheathes the status
quo against criticism based upon comparative example. Cultural differences
that help explain the origins of superior procedures need not restrict
their spread. If Americans were to resolve to officialize the fact-gathering
process while preserving the political prominence of the higher bench,
we would probably turn initially to some combination of judges, magistrates,
and masters for getting the job done. Over time, we would strike a new
balance between bench and bar, and between higher and lower judicial office.
The rise of American managerial
judging (discussed in Part VIII below) should put us on notice that we
may no longer have the leisure to decide whether we want more judicial
authority over civil litigation. If greater judicial control of civil
proceedings is inevitable, greater attention to safeguarding litigants'
interests against abuse of judicial power must follow. The German model
should inspire attention to the way judicial career incentives (above
all, meritocratic selection, review, and promotion) can serve as safeguards
Like the career incentives
that encourage good judicial performance, the German appellate process
is designed to protect litigants *856 from caprice, error,
or sloth. The adversarial component of lawyerly oversight, to which this
article has so often referred, ultimately depends for its effectiveness
upon the threat of appellate review. From the standpoint of comparison
with American procedure, two attributes of German appellate practice appear
especially noteworthy: (1) the requirement, meant to facilitate review,
that the first- instance court disclose in writing its findings of fact
and reasons of law; and (2) the de novo standard of review.
Disclosure of grounds. Unless
the first instance court is successful in encouraging the parties to settle,
[FN110] it must decide the case by means of a written judgment containing
findings of facts and rulings of law. [FN111] The thoroughness of the
German judgment is legendary. [FN112] Empirical study has shown how seriously
the first-instance courts take their judgment-writing responsibility.
[FN113] Judges know that they will be judged on the quality of their opinions.
Good opinions reduce the reversal rate and win esteem in the peer evaluation
process. Judges know that the reviewing court will have convenient access
to the whole of the evidence and the submissions received at first-instance,
since the dossier goes up with the appeal. Especially when coupled with
searching review by an appellate court of great ability, the requirement
of written findings and reasons is a bulwark against arbitrary or eccentric
adjudication. In our system, by contrast, the conclusory general verdict
of a jury is the antithesis of a reasoned judgment; nor do we insist on
much better in the realm of bench trials. [FN114] Fact-finding in American
courts all too often resembles Caligula dealing with vanquished gladiators:
thumbs up or thumbs down, yours but to wonder why.
Review de novo. Ultimately,
it is the prospect of appellate review in German civil procedure that
makes the other safeguards effective, both as deterrents and as correctives.
The dissatisfied litigant has the right of appeal de novo (Berufung) in
the first appellate instance (typically the OLG). [FN115] No presumption
of correctness *857 attaches to the initial judgment.
What makes this astonishingly liberal system of appellate review possible
is the extreme economy of the technique, previously discussed, of recording
in pithy summaries the evidence gathered at first instance. [FN116] Retrial
becomes for the most part only rereading.
The OLG "may choose to
rehear evidence and is likely to do so when demeanor of a witness seems
important or when the record fails to give sufficient detail."' [FN117]
The main task in review de novo is not, however, gathering new evidence,
but considering afresh the record and the judgment from below. OLG review
guarantees to the dissatisfied litigant a second look by a panel of long-experienced
judges on all matters of law and fact. In other words, for a litigant
who wishes it, fact-finding will be reassigned from the court that did
the primary fact-gathering (and this is another way in which German procedure
may be said to respond to Lon Fuller's concern about the danger of prejudgment
in the investigating court [FN118]). OLG review is collegial; a panel
of several judges decides the case. [FN119] And because the OLG panels
are specialized by subject matter, chances are that some of the judges
who decide the case will be masters of the particular field of law.
From the OLG there is a further
level of review (by the BGH) according to a standard of review (Revision)
that approximates the Anglo-American notion of review for error. [FN120]
Adequacy of safeguards. There
is no denying the power of the German judge, yet complaints about the
misuse of judicial power are extremely rare. The career incentives and
the system of appellate review have been designed to deter and correct
abuse. Experience suggests that they work.
*858 VIII. AMERICAN MANAGERIAL JUDGING: CONVERGENCE?
Important changes have occurred
in recent years that diminish the contrast between German and American
civil procedure. Under the rubric of case management, American trial judges
are exercising increasing control of the conduct of fact-gathering. Although
many American courtrooms remain untouched by the new developments, the
changes have occurred broadly enough to have about themselves the look
of the future.
The Manual. Managerial judging
arose in the federal courts as a response to the increasing quantity of
so-called "complex litigation"'--cases that involve "'unusual
multiplicity or complexity of factual issues."' [FN121] The Manual
for Complex Litigation was created to deal with these cases, but because
complexity is a matter of degree, managerial judging was hard to confine
to the Big Case. The Manual identifies antitrust, securities, mass disaster,
product liability, class action, and multiparty cases, among others, as
typical. [FN122] In cases with many parties and many issues, the feeling
grew that court-centered control was needed to prevent the confusion and
duplication that would result if the adversaries were "left to themselves,
each pursuing the course that is most favorable to his particular client."'
[FN123] Accordingly, "[t]he essence"' of what the Manual propounds
"is the exercise of judicial control over complex litigation plus
a positive plan for discovery and pretrial preparation."' [FN124]
The Manual effects judicial control over adversary fact-gathering through a set of interconnected measures:
(1) The judge uses pretrial conferences to explore the case with counsel and to identify key issues. [FN125]
(2) The judge is expected to promote settlement from the earliest opportunity. [FN126]
(3) The judge also helps sharpen the issues. "To the extent feasible the judge should narrow the issues in the course of the first pretrial conference and limit discovery *859 accordingly."' [FN127]
(4) Issue definition leads to the regulation of discovery. The court convenes discovery conferences and breaks discovery into "waves."' [FN128] Thus, the court decides what subjects may be investigated in what sequence. This power has now been codified for the ordinary Federal Rules of Civil Procedure in revised rule 26(f): "Following the discovery conference, the court shall enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery . . . . " [FN129]
(5) The Manual recommends that
the court explore the need for expert testimony early, in part in order
"to determine whether court appointment of an expert is desirable."'
Convergence. What makes the
Manual look "proto-Germanic"' in the eyes of the comparative
lawyer is the informal feel of "the conference method;" [FN131]
and the active judicial role in defining issues, promoting settlement,
[FN132] and fixing the sequence for fact-gathering.
To be sure, managerial judging
in the pretrial process leaves adversary domination of the trial (especially
jury trial) largely unaffected. But the vast preponderance of cases settle
or are dismissed before trial; pretrial procedure is the whole procedure
for most of our caseload. [FN133]
judicial control of the pretrial process interacts with certain features
of trial procedure. Early identification of issues and issue- specific
discovery can lead to issue-specific trial, that is partial trial, under
rule 42(b). [FN134] One could envision manipulating these powers to replicate
something of the German court's control over the sequence of issue- identification
and fact-gathering in the development of a lawsuit. [FN135] And under
rule 53(c), which empowers the court to refer issues to a master for investigation
and report, [FN136] one could imagine further movement toward judicial
conduct of fact-gathering. That is, however, still a glimmer; the important
trend has been toward judicial control of the adversaries' conduct of
the investigatory function, not judicial conduct of the investigation.
Thus, while managerial judging
leaves untouched some of the worst abuses of our trial procedure such
as coached witnesses and partisan experts, it has reoriented pretrial
procedure away from adversary domination; and in a legal system that actually
tries only a tiny fraction of its civil caseload, judicial capture of
pretrial could become more important than continuing adversary control
The importance of managerial
judging ought not to be over-stated. Managerial judging is prevalent in
the federal courts, but less evident in the state systems where complex
litigation is less prevalent. (Many of the state systems also lack an
essential predicate for managerial judging, the continuous-case-management
system in which a case remains assigned to the same trial judge from initial
docketing to final judgment.) Moreover, even within the federal system,
managerial judging is routine only for complex cases that require to be
dealt with under the Manual. Outside the realm of the Big Case, the litigant
gets managerial judging only if, by the fortuity of the case- assignment
wheel, he draws a managerial judge. If you get assigned to Robert Keeton
or Prentice Marshall or William Schwarzer, you get managerial judging.
If you draw a traditional federal district judge, you get old-style adversary
domination *861 of the pretrial process. It is hard to
imagine that our system can long continue to leave such fundamental choices
to luck and whim.
Safeguards. Not only does whim determine whether a litigant gets managerial judging, but whim can surface in the conduct of managerial judging. Judith Resnik observes:
give judges greater power. Yet the restraints that formerly circumscribed
judicial authority are conspicuously absent Managerial judges frequently
work beyond the public view, off the record, with no obligation to provide
written, reasoned opinions, and out of the reach of appellate review.
. . . [B]ecause managerial
judging is less visible and usually unreviewable, it gives trial courts
more authority and at the same time provides litigants with fewer procedural
safeguards to protect them from abuse of that authority. [FN137]
Viewed from the perspective
of comparative law, therefore, American managerial judging displays contrasting
tendencies. On the one hand, it exhibits convergence toward the Continental
model of judicial domination of the fact- gathering process. On the other
hand, the haphazard growth of managerial judging has not been accompanied
by Continental-style attention to safeguarding litigants against the dangers
inherent in the greatly augmented judicial role. The career incentives
for our judiciary are primitive, and the standards of appellate review
barely touch the pretrial process.
The trend toward managerial
judging is irreversible, [FN138] because *862 the trend
toward complexity in civil litigation that gave rise to managerial judging
is irreversible. If we were to learn from the success of the long established
German tradition of managerial judging, we would not only improve our
safeguards, we would encourage more complete judicial responsibility for
the conduct of fact-gathering. For example, we might have the judge (or
a surrogate such as a master or a magistrate) depose witnesses and assemble
the rest of the proofs, working in response to adversary nomination and
under adversary oversight as in German procedure. We might then be able
to forbid the adversaries from contact with witnesses--in other words,
we could abolish the coaching that disgraces our civil justice. We would
also be able to routinize the use of court-appointed experts. And if we
were to concern ourselves with devising a standard of appellate review
appropriate to the seriousness of managerial judging, we might want to
experiment with the German technique of succinct recordation of evidence.
Concentration. When Kaplan
sought "the grand discriminant, the watershed feature, so to speak,
which shows the English and American systems to be consanguine and sets
them apart from the *863 German, the Italian, and others
in the civil-law family,"' he found it in our "single-episode
trial as contrasted with discontinuous or staggered proof-taking"'
on the Continent. [FN140] Arthur von Mehren has advanced a similar view,
showing in a recent article how extensively the concentrated trial has
affected the rest of our civil procedure. [FN141]
For the future, however, I
doubt that the contrast between systems of concentrated and discontinuous
trial will have such prominence in thinking about comparative civil procedure.
The tendency of our pretrial process to displace the trial, a phenomenon
long evident in American criminal procedure, [FN142] is now increasingly
manifest in civil procedure as well. Between discontinuous trial in the
Continental tradition and our system of discontinuous pretrial proceedings
followed by concentrated trial, the difference need not be all that great,
especially since so few of our cases actually go to trial. Although ostensibly
conducted in preparation for the concentrated trial, managerial judging
in its more important aspects is directed toward suppressing the trial.
Managerial judging succeeds best when pretrial clarification produces
settlement, capitulation, or dismissal.
Even when civil cases do advance
to trial in our system, much of what has made the trial so consequential
is the latitude for adversary distortion in the fact-adducing process.
Accordingly, I incline to point to a different "grand discriminant"'
between the two legal cultures--not concentration, but adversarial versus
judicial responsibility for gathering and presenting the facts. If our
concentrated trial occurred after nonadversarial fact-gathering in the
pretrial process. our trial might ultimately resemble somewhat the current
German review-de-novo proceeding for first appeals. [FN143] At trial the
court would recall and examine key witnesses afresh, while facts not in
serious controversy would be elicited from the pretrial dossier.
The jury. "The common
law system,"' writes von Mehren, "had to concentrate trials
because of the jury. . . . The presence *864 of a jury
makes a discontinuous trial impractical."' [FN144] Historically,
it is surely correct that concentration of the trial eliminated the problems
of reassembling and controlling groups of laymen across long intervals,
problems that would otherwise have bedeviled a system of routine but discontinuous
jury trial. "'Moreover, at least until relatively modern times, there
was probably no way in which material presented at widely separate points
in time could have been preserved in a form that would have enabled the
jury to refresh its recollection when it ultimately came to deliberate
and render the verdict."' [FN145] In an age of stenographically reported
and now videotaped testimony, however, those concerns look less fundamental.
Although civil jury trial is
a comparative rarity within the declining subset of our cases that go
to any kind of trial, [FN147] the jury entitlement is enshrined in the
seventh amendment and in comparable state constitutional guarantees. There
is a substantial body of opinion that the civil jury is a worthwhile safeguard,
and that view can scarcely be gainsaid as long as our trial bench remains,
at the margin, so unreliable.
The question arises, therefore,
whether the jury guarantee will continue to dominate our increasingly
juryless practice. In the context of comparative civil procedure, the
question is whether the jury tradition that underlies the Anglo-American
concentrated trial is a true "grand discriminant,"' capable
of preventing conver gence toward Continental procedure. An initial cause
for doubt is that the Anglo-American tradition has been for half a century
decisively sundered in the matter of the jury entitlement. The English
effectively abolished civil jury trial in 1933. [FN148] Paradoxically,
however, theirs is the more faithful adherence to the tradition of the
concentrated trial, because their pretrial process is less developed.
What has continued to unite English and American civil procedure,
*865 therefore, is adversary domination of fact-gathering. [FN149]
But must the American jury
entitlement ultimately defeat convergence toward the German model? In
other words, is judicial responsibility for fact-gathering incompatible
with lay adjudication? We have little direct experience, since European
legal systems do not share our preoccupation with the jury in civil procedure.
The Germans employ juror-like lay judges for first-instance proceedings
in various of the specialized courts (labor, social, commercial, administrative,
tax) and in the courts that handle cases of serious crime. [FN150] The
lay judging system combines lay and professional judges in a single panel
(a "mixed court"') that deliberates and decides together. I
have elsewhere had occasion to describe the German mixed court, and to
contrast it with our jury court in the realm of criminal procedure. [FN151]
I came to the conclusion that while each form of court structure has advantages,
the two are broadly comparable in serving the main purposes of the jury
guarantee. [FN152] Elsewhere in Europe, true jury courts have been incorporated
into criminal procedural systems that retain strongly nonadversarial pretrial
processes. [FN153] Key witnesses who have been examined in the officialized
pretrial are simply recalled for the jury. Accordingly, the indications
are that judicial conduct of fact-gathering could be smoothly integrated
into the jury tradition.
Abridging adversary theory.
It is curious that managerial judging took hold so easily in a legal system
supposedly governed by the counterprinciple of judicial inactivity. [FN154]
Because managerial *866 judging imposes such major limits
on partisan autonomy in fact-gathering, it is in principle irreconcilable
with that branch of adversary theory that purports to justify adversary
Regardless of where managerial judging is headed for the future, it has already routed adversary theory. I take that as further support for the view advanced in Part V that adversary theory was misapplied to fact-gathering in the first place. Nothing but inertia and vested interests justify the waste and distortion of adversary fact-gathering. The success of German civil procedure stands as an enduring repreach to those who say that we must continue to suffer adversary tricksters in the proof of fact.
FNa Max Pam Professor of American
and Foreign Law, University of Chicago Law School; Russell Baker Scholar
(1985). Scholars, judges, and practitioners in the U.S. and Germany have
favored me with suggestions for research or have commented on prepublication
drafts. Among those whose help has most proximately affected this paper,
although not always in directions that they would have preferred, are
Albert Alschuler, Erhard Blankenburg, Mauro Cappelletti, Gerhard Casper,
Mary Ann Glendon, Geoffrey Hazard, Benjamin Kaplan, Robert Keeton, Hein
Kotz, John Merryman, Henry Monaghan, Richard Posner, Martin Redish, Mathias
Reimann, Erich Schanze, William Schwarzer, Steven Shavell, Geoffrey Stone,
Cass Sunstein, and Arthur von Mehren. I am grateful to learned audiences
who reacted to this paper in earlier versions at law school workshops
at Cornell, Harvard, and Northwestern; at the 1984 meeting of the American
College of Trial Lawyers; at the 1985 meeting of the litigation section
of the Association of American Law Schools; and at a session of the National
Academy of Sciences' Committee on National Statistics, Panel on Statistical
Evidence in the Courts.
FN1 E.g., JEROME FRANK, COURTS
ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE (1949); Frankel, The Search
for Truth: An Umpireal View, 123 U. PA. L. REV. 1031 (1975); Brazil, The
Adversary Character of Civil Discovery: A Critique and Proposals for Change,
31 VAND. L. REV. 1295, 1298-1303 (1978).
FN2 E.g., STEPHAN LANDSMAN,
THE ADVERSARY SYSTEM: A DESCRIPTION AND DEFENSE 38, 40-41, 43 (1984).
FN3 A somewhat similar account
of Continental practice could be based upon other Western European systems,
although details would differ, particularly as one moves from the Northern
European systems that have been most influenced by Austrian-German legal
culture, to the systems of Southern Europe, where judicial domination
of fact-gathering is less prominent and where less adequate resources
have been devoted to developing and motivating the bench. See Cappelletti,
Social and Political Aspects of Civil Procedure--Reforms and Trends in
Western and Eastern Europe, 69 MICH. L. REV. 847, 858-59 (1971).
FN4 Von Mehren remarks that,
especially by contrast with criminal procedure, where adversarial components
are thoroughly subordinated in the Continental tradition, "the civilprocedure
systems of France, Germany and the United States were--and remain--adversarial."'
Von Mehren, The Significance for Procedural Practice and Theory of the
Concentrated Trial: Comparative Remarks, in 2 EUROPAISCHES RECHTSDENKEN
IN GESCHICHTE UND GEGENWART: FESTSCHRIFT FUR HELMUT COING 361 n.3 (N.
Horn ed. 1982). When writers take the shortcut and speak of German or
other Continental civil procedure as "nonadversarial"' (a usage
that I think should be avoided although I confess to having been guilty
of it in the past), the description is correct only insofar as it refers
to that distinctive trait of Continental civil procedure, judicial conduct
FN5 MANUAL FOR COMPLEX LITIGATION
(5th ed. 1982).
FN6 Resnik, Managerial Judges,
96 HARV. L. REV. 376 (1982).
FN7 Regarding the role of the
Small Case in these developments, see infra note 138.
FN8 Readers interested in the
detail of the German system will find, in addition to the indigenous treatises,
a surprisingly rich English-language literature. The remarkable minitreatise,
Kaplan, von Mehren & Schaefer, Phases of German Civil Procedure (pts.
1 & 2), 71 HARV. L. REV. 1193, 1443 (1958) [hereafter cited as Kaplan-von
Mehren], although approaching its thirtieth anniversary, remains fundamentally
accurate. See also 2 E.J. COHN, MANUAL OF GERMAN LAW 162-248 (2d ed. 1971).
For comparative observations growing out of the Kaplan-von Mehren study,
see Kaplan, Civil Procedure-- Reflections on the Comparison of Systems,
9 BUFFALO L. REV. 409 (1960) [hereafter cited as Kaplan]. William B. Fisch
updated the Kaplan-von Mehren article, with particular attention to the
1977 amendments that are discussed infra note 9, in Fisch, Recent Developments
in West German Civil Procedure, 6 HASTINGS INT'L & COMP. L. REV. 221,
236-60 (1983). On the 1977 reforms see also Gottwald, Simplified Civil
Procedure in West Germany, 31 AM. J. COMP. L. 687 (1983). Regarding the
appellate system, see Meador, Appellate Subject Matter Organization: The
German Design from an American Perspective, 5 HASTINGS INT'L & COMP.
L. REV. 27 (1981). On the differing roles of lawyers, judges, and other
legal professionals, see Kotz, The Role and Functions of the Legal Professions
in the Federal Republic of Germany, in DEUTSCHE LANDESREFERATE ZUM PRIVATRECHT
UND HANDELSRECHT, XI INTERNATIONALER KONGRESS FUR RECHTSVERGLEICHUNG 69
(U. Drobnig & H. Puttfarken ed. 1982) [hereafter cited as Kotz, Legal
Profession]; see also DIETRICH RUESCHMEYER, LAWYERS AND THEIR SOCIETY:
A COMPARATIVE STUDY OF THE LEGAL PROFESSION IN GERMANY AND IN THE UNITED
STATES 27-62 (1973).
FN9 Reforms enacted in 1976 and in force since 1977, based on practice pioneered in Stuttgart and widely known as the "Stuttgart Model,"' encourage the courts to dispose of a case in a single hearing when circumstances permit. See, e.g., LEO ROSENBERG & KARL-HEINZ SCHWAB, ZIVILPROZESSRECHT § 84, at 456- 60, § 107, at 614-17 (13th ed. 1981); see id. § 107, at 614 for bibliography. For English-language discussion, see Bender, The Stuttgart Model, in 2 ACCESS TO JUSTICE: PROMISING INSTITUTIONS 433 (M. Cappelletti & J. Weisner ed. 1979).
As modified, the code reads: "Ordinarily (in der Regel), the case should be resolved in a single hearing, comprehensively prepared."' ZIVILPROZESSORDNUNG [ZPO] (Code of Civil Procedure) § 272(I). In aid of this comprehensive preparation, ZPO § 273, formerly ZPO § 272(b), authorizes the court to take various steps in advance of the hearing (for example, requiring the parties to clarify positions, obtaining documents, summoning parties and witnesses to the hearing). Many simpler cases do lend themselves to one-hearing disposition, either through court-aided settlement or by judgment. When this happens the German procedure resembles the American pattern of pretrial preparation followed by a concentrated trial. However, even in such cases, because the court has the option to schedule further hearings if developments at the initial hearing seem to warrant further proofs or submissions, German procedure is devoid of the opportunities for surprise and tactical advantage that inhere in the Anglo-American concentrated trial. See infra text accompanying note 23.
For cases that do not lend themselves to one-hearing resolution, the 1977 amendments have not altered the episodic character of the procedure. Further hearings may be ordered as necessary. See, e.g., ZPO § 278(IV). "'The whole procedure up to judgment may therefore be viewed as being essentially a series of oral conferences."' Kotz, Civil Litigation and the Public Interest, 1 CIV. JUST. Q. 237, 243 (1982) [hereafter cited as Kotz, Civil Litigation].
German procedure recognizes
something called the Konzentrationsmaxime, which, if translated as the
"principle of concentration"' and equated with the rule of concentrated
trial in Anglo-American law, is a serious false cognate. The Konzentrationsmaxime
expresses nothing more than the general efficiency value that the court
should handle the case as rapidly as possible, and where possible in a
single hearing. See, e.g., ADOLF BAUMBACH, ZIVILPROZESSORDNUNG § 253,
Ubersicht at 634, P 2(E) (43d ed. 1985).
FN10 See ZPO § 253 (complaint);
id. §§ 271, 274(II) (service on the defendant).
FN11 ZPO § 253(IV) invokes
ZPO § 130, including § 130(5), calling for the party to designate the
means of proof he thinks will support his contentions of fact. For a specimen
complaint and other items of record from a hypothetical lawsuit rendered
in English, see 2 E. COHN, supra note 8, at 191-97.
FN12 For English-language discussion
of this point, which is so striking to those of us bred in the Anglo-American
tradition, see Kaplan-von Mehren, supra note 8, at 1206-07, 1247-49.
FN13 In former times there
was greater use of collegial first-instance courts, but by 1974 the tradeoff
between dispatch and safeguard was resolved in favor of dispatch, and
ZPO § 348 now presupposes a single-judge court in most circumstances.
For background in English see Fisch, supra note 8, at 227-36; on the former
practice, see Kaplan-von Mehren, supra note 8, at 1206-07, 1247- 49.
FN14 The nineteenth-century
tradition that one of the parties had to nominate a witness before the
court could examine him (Verhandlungsmaxime) has long been something of
a fiction, since a party usually detects a strong incentive to follow
judicial suggestion in nominating some line of proof. The reforms of the
1970s directed to accelerating the procedure have further accentuated
the court's authority to investigate independent of party nomination.
For recent complaint from the bar that the bench is straining too far
in this direction, see Birk, Wer fuhrt den Zivilprozess--der Anwalt oder
der Richter? 38 NEUE JURISTISCHE WOCHENSCHRIFT 1489, 1496 (1985).
FN15 See ZPO §§ 395-97.
FN16 See Kotz, Civil Litigation,
supra note 9, at 240.
FN17 See infra text accompanying
FN18 But see infra text accompanying
FN19 ZPO §§ 383-89. See generally
A. BAUMBACH, supra note 9, §§ 383-389, at 1018-29.
FN20 See infra text accompanying
FN21 For discussion of the
importance of those safeguards, see infra text accompanying notes 110-14.
FN22 For English-language discussion,
see Kaplan-von Mehren, supra note 8, at 1208-31, especially 1224-28.
FN23 For discussion of the
parallels to discovery waves under the Manual for Complex Litigation and
to bifurcated trials under Federal Rule of Civil Procedure 42, see infra
text accompanying notes 134-35.
FN24 Kaplan, supra note 8,
FN25 ZPO § 279 imposes upon the court the duty to explore the possibility of a settlement at every stage of the proceeding. "Settlement is sometimes prized as the crown of the judicial function, as the goal for which a healthy legal system continually strives."' OTHMAR JAUERNIG, ZIVILPROZESSRECHT § 48 (VII), at 171 (20th ed. 1983). Kaplan and his coauthors remark: "The intensity and candor of the court's drive toward settlement will astonish an American observer. In few cases does settlement go unmentioned and it is the judge who generally initiates the discussion."' Kaplan-von Mehren, supra note 8, at 1223.
In 1977 I spent some time observing the conduct of civil cases in the main first-instance court (Landgericht, or LG) in Frankfurt. In one case, involving the amount of child support, the presiding judge told a defendant who was resisting the settlement recommended by the court: "If we have to go to judgment, I assume that the judgment would not look much different than the suggested settlement."' He settled.
Settlement has many advantages, especially in the eyes of judges who promote it:
(1) It accelerates resolution of the case.
(2) No one is stigmatized as the loser.
(3) The court is spared writing a judgment, which is a considerable attraction in a legal system that takes the contents of the written judgment so seriously, see infra text accompanying notes 111 13. Kotz warns in this regard that "an activist judge who applies pressure in order to persuade the parties to accept a settlement may be motivated, not so much by a desire to end the litigation in a peaceable manner and thereby to protect the public interest in reducing delay in the courts but, instead, by a wish to reduce his workload."' Kotz, Civil Litigation, supra note 9, at 238.
(4) Because settlement precludes appeal, the court knows that if it embodies its result in a settlement rather than a judgment, there is no possibility of being reversed. (Regarding reversal rates as a factor affecting progress in judicial careers, see infra text accompanying note 95.)
The Kaplan-von Mehren article
makes the instructive comparative point that the greater judicial involvement
in settlement in German procedure reflects the German judge's early and
active role in developing the facts. "In American practice, on the
other hand, a large percentage of settlements are concluded with the judges
playing no part, for barring preliminary motions or a pretrial conference,
cases commonly do not appear before the judges until the stage of trial."'
Kaplan-von Mehren, supra note 8, at 1223 n.120. On the correlation between
the growing involvement of American judges in pretrial discovery and their
larger role in promoting settlement, see infra text accompanying notes
124-32 & note 132.
FN26 The presiding judge is
required to discuss the factual and legal aspects of the case with the
parties, ZPO § 139(I), and to advise the parties of his doubts, ZPO §
FN27 ZPO § 91 announces the basic principle, although the details extend across several special statutes, including the Kostenordnung [KOSTO] (Statute on Costs) and the Bundesrechtsanwaltsgebuhrenordnung [BRAGO] (Federal Statute on Lawyers' Fees). See generally 1 STEIN-JONAS, KOMMENTAR ZUR ZIVILPROZESSORDNUNG § 91 Vorbemerkungen at 293-304 (20th ed. 1984). For brief treatment in English, see 2 E. COHN, supra note 8, at 182-90; Kaplan-von Mehren, supra note 8, at 1461-70; see also Pfennigstorf, The European Experience with Fee Shifting, LAW & CONTEMP. PROBS., Winter 1984, at 37; infra note 78.
In a valuable recent analysis
of the effects of cost-shifting regimes, Steven Shavell makes the point
that cost-shifting actually increases the parties' propensity to litigate
in the situation where each overvalues his chances of prevailing. Shavell,
Suit, Settlement, and Trial: A Theoretical Analysis under Alternative
Methods for the Allocation of Legal Costs, 11 J. LEGAL STUD. 55, 65-66
(1982). The German effort at active judicial clarification of the facts
and issues is a counterforce likely to correct such misperceptions much
of the time.
FN28 Frankel, supra note 1,
at 1038 (emphasis in original).
FN29 J. FRANK, supra note 1,
FN31 Wigmore's celebrated panegyric--that
cross-examination is "the greatest legal engine ever invented for
the discovery of truth"'--is nothing more than an article of faith.
5 JOHN H. WIGMORE, EVIDENCE § 1367, at 29 (3d ed. 1940). Judge Frankel
explains why: "The litigator's devices, let us be clear, have utility
in testing dishonest witnesses, ferreting out falsehoods, and thus exposing
the truth. But to a considerable degree these devices are like other potent
weapons, equally lethal for heroes and villains."' Frankel, supra
note 1, at 1039. For a well-known discussion of deliberately misleading
techniques of examination and cross-examination, drawn mostly from how-to
books, see J. FRANK, supra note 1, at 81-85. For recent discussion (by
a booster of adversary procedure) of the shortcomings of cross-examination
as a remedy for coaching, see Landsman, Reforming the Adversary Procedure:
A Proposal Concerning the Psychology of Memory and the Testimony of Disinterested
Witnesses, 45 U. PITT. L. REV. 547, 570-71 (1984). In the hands of many
of its practitioners, cross-examination is not only frequently truth-defeating
or ineffectual, it is also tedious, repetitive, time-wasting, and insulting.
FN32 Hanley, Working the Witness
Puzzle, LITIGATION, Winter 1977, at 8, 10.
FN33 Kaplan-von Mehren, supra
note 8, at 1201. Kotz has written lately in a similar vein: "German
attorneys will be highly reluctant to talk with prospective witnesses.
This results in part from an ethical standard as expressed in the canons
promulgated by the German Bar Association where it is said: 'Questioning
of witnesses out of court is advisable only when special circumstances
justify it. In such questioning even the appearance of attempting to influence
the witness must be avoided.' [Citing Richtlinien der Bundesrechtsanwaltskammer
fur die Ausubung des Anwaltsberufs, § 4 (May 11, 1957).] If any attorneys
were prepared to wink at this standard, which is doubtful, they would
have to take account of the further fact that German judges would take
an extremely dim view of the reliability of witnesses who previously had
discussed the case with counsel."' Kotz, Civil Litigation, supra
note 9, at 241.
FN34 J. FRANK, supra note 1,
FN35 E.g., KURT JESSNITZER,
DER GERICHTLICHE SACHVERSTANDIGE 72, 78 (7th ed. 1978).
FN36 Equally revealing is the
slang used to describe the preparation of ordinary witnesses: "sandpapering"'
and "horseshedding."' For remarks on the latter, see MARVIN
E. FRANKEL, PARTISAN JUSTICE 15 (1980).
FN37 Advertisements like the following (from the journal of the trial lawyers' association) conjure up a vision more of the huckster than of the scientist: "'EXPLODING BOTTLES-FLYING CAPS[:] expert with 20 years worldwide experience . . . . 100 success to date."' TRIAL, Feb. 1985, at 92.
One excuse for the litigation-biased
expert is the claim that "there is no such thing as a neutral, impartial
[expert] witness. . . . [He] is bound to be biased and partial, and strongly
motivated towards advocacy of his particular prejudiced point of view."'
Diamond, The Fallacy of the Impartial Expert, 3 ARCHIVES OF CRIM. PSYCHODYNAMICS
221, 229-30 (1959), reprinted in DAVID W. LOUISELL, GEOFFREY C. HAZARD,
JR. & COLIN C. TAIT, CASES AND MATERIALS ON PLEADING AND PROCEDURE
842, 846 (5th ed. 1983). However, it is important not to confuse litigation-bias
(hiring somebody to conform his views to the needs of your lawsuit) with
the good faith differences of opinion that can develop in scientific fields
or in other areas of expertise concerning questions that have not been
authoritatively resolved. It is true that bias may provoke a difference
of opinion; it is false to reason that a difference of opinion must reflect
FN38 Ryan, Making the Plaintiff's
Expert Yours, FOR THE DEFENSE, NOV. 1982, at 12, 13; see also Trine, Cross-examining
the Expert Witness in the Products Case, TRIAL, NOV. 1983, at 86 (taking
as its leitmotif the advice from a fisherman's manual that "[t]he
concept behind playing a trout is to tire him to the point where he may
be easily handled or netted, yet is not at the portals of death"').
FN39 See, for example, the
trial judge's account of a proceeding that concerned an issue of Salvadoran
law: "[T]he experts for the respective sides contradict each other
in every material respect."' Corporacion Salvadorena de Calzado,
S.A. v. Injection Footwear Corp., 533 F. Supp. 290, 293 (S.D. Fla. 1982),
cited in Merryman, Foreign Law as a Problem, 19 STAN. J. INT'L L. 151,
158 n.10 (1983).
FN40 See generally INSTITUT
DE DROIT COMPARE DE PARIS, L'EXPERTISE DANS LES PRINCIPAUX SYSTEMES JURIDIQUES
FN41 E.g., Arens, Stellung
and Bedeutung des technischen Sachverstandigen im Prozess, in EFFEKTIVITAT
DES RECHTSSCHUTZES UND VERFASSUNGSMASSIGE ORDNUNG 299 (P. Gilles ed. 1983).
For a volume of conference proceedings largely devoted to this topic,
see DER TECHNISCHE SACHVERSTANDIGE IM PROZESS (F. Nicklisch ed. 1984)
(see especially id. at 273ff., for the editor's English-language general
FN42 See ZPO § 404(I); K. JESSNITZER,
supra note 35, at 97.
FN43 ZPO § 404(III).
FN44 ZPO § 404(IV).
FN45 ZPO § 404(II).
FN46 For a list of statutes
that authorize licensing and similar bodies to designate experts, see
2 STEIN-JONAS, KOMMENTAR ZUR ZIVILPROZESSORDNUNG § 404(II), at 1674-75
(19th ed. 1972); see also K. JESSNITZER, supra note 35, at 122-23.
FN47 GEWERBEORDNUNG [GEWO]
(Code on Trade Regulation) § 36.
FN48 I wish especially to acknowledge
rewarding discussions with Dr. Erika Bokelmann, Richterin am Oberlandesgericht
Frankfurt; Dr. Heinrich Gotzke, Vorsitzender Richter am Landgericht Frankfurt;
and Dr. Ernst Windisch, Richter am Bundesgerichtshof.
FN49 ZPO § 406(I). See generally
A. BAUMBACH, supra note 9, § 406, at 1047- 49.
FN50 E.g., PETER ARENS, ZIVILPROZESSRECHT
203 (2d ed. 1982).
FN51 K. JESSNITZER, supra note
35, at 183.
FN52 ZPO § 411(I) authorizes
the court to require the expert to report in writing. The language of
the statute may make this look exceptional ("If a written report
is ordered . . . . "), but in practice ordering the report is quite
the norm. See K. JESSNITZER, supra note 35, at 166-67.
FN53 ZPO § 412(I).
FN54 See, e.g., K. JESSNITZER,
supra note 35, at 232.
FN55 STRAFPROZESSORDNUNG [STPO]
(Code of Criminal Procedure) § 244 (IV). See generally 3 LOWE-ROSENBERG,
DIE STRAFPROZESSORDNUNG UND DAS GERICHTSVERFASSUNGSGESETZ § 244 (IV),
PP 143-150 (23d ed. 1978).
FN56 See K. JESSNITZER, supra
note 35, at 231-32.
FN57 Cf. id. at 235-36.
FN58 FED. R. EVID. 706 advisory
FN59 FED. R. EVID. 706.
FN60 UNIF. R. EVID. 706, 13
U.L.A. 319 (1974).
FN61 See, e.g., 3 JACK B. WEINSTEIN
& MARGARET A. BERGER, WEINSTEIN'S EVIDENCE P 706, at 706-8 to
-12 (Supp. 1985).
FN62 Merryman, supra note 39,
FN64 See infra text accompanying
FN65 See supra text accompanying
FN66 The obligatory illustration
is Lord Brougham's speech in the defense of Queen Caroline: "[A]n
advocate, in the discharge of his duty, knows but one person in all the
world, and that person is his client. To save that client by all means
and expedients . . . is his first and only duty . . . . " 2 TRIAL
OF QUEEN CAROLINE 8 (J. Nightingale ed. 1821), cited in Fried, The Lawyer
as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE
L.J. 1060, 1060 n.1 (1976).
FN67 Monroe Freedman's well-known
book, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM (1975), typifies this viewpoint.
Regarding limiting this policy to criminal as opposed to civil procedure,
see, e.g., Luban, The Adversary System Excuse, in THE GOOD LAWYER: LAWYERS'
ROLES AND LAWYERS' ETHICS 83, 91-92 (D. Luban ed. 1984); Schwartz, The
Zeal of the Civil Advocate, 1983 AM. B. FOUND. RESEARCH J. 543, 548-50.
FN68 See, e.g., Garner v. United
States, 424 U.S. 648, 655 (1976), asserting that "the preservation
of an adversary system of criminal justice"' is "the fundamental
purpose of the Fifth Amendment."DD'
FN69 Schwartz, supra note 67,
FN70 It seems unlikely that
privatized fact-gathering favors the accused in American criminal procedure.
In the typical case the prosecution's greater resources disadvantage the
accused by comparison with the nonadversarial fact- gathering of German
criminal procedure. For a discussion of German criminal procedure, see
Langbein, Land Without Plea Bargaining: How the Germans Do It, 78 MICH.
L. REV. 204, 206-12 (1979).
FN71 The active role of the
German judge extends to matters of law as well as fact. The discussion
of this point in the Kaplan-von Mehren article remains quite sound: There
is "an overriding principle of German law, jura novit curia, the
court knows--and is bound to apply--general law without prompting from
the parties."' Kaplan-von Mehren, supra note 8, at 1224-25 (discussing
ZPO § 139); cf. id. at 1227-28.
FN72 Fuller's argument is usually
cited to a speech text, Fuller, The Adversary System, in TALKS ON AMERICAN
LAW 30 (H. Berman ed. 1961). See, e.g., Schwartz, The Professionalism
and Accountability of Lawyers, 66 CALIF. L. REV. 669, 672 n.5 (1978) (citing
that work as "[t]he first successful attempt to analyze the adversary
system"'). Fuller's argument first appeared in the report of a body
known as the Joint Conference on Professional Responsibility. Professional
Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159 (1958)
[hereafter cited as Fuller]. Randall cosigned the report for the ABA but
must have had nothing to do with writing it. Portions of Fuller's argument
were republished in the posthumously assembled work that appeared as Fuller,
The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 383 (1978).
FN73 Fuller, supra note 72,
FN74 The assumption that adversary
procedure corrects for the dangers of prejudgment needs itself to be probed.
I have known American litigators to complain of particular judges tending
to make up their minds too soon, even on the pleadings.
FN75 See sources cited supra
FN76 A. BAUMBACH, supra note
9, § 286, at 749-51, PP 3(B)(a)-(1).
FN77 Kaplan-von Mehren, supra
note 8, at 1246.
FN78 Id. at 1247.
The extreme form of fishing that our discovery process invites, viz., bringing a lawsuit in order to discover whether you might actually have one, is unknown not only in Continental procedure, but in English procedure as well. See, e.g., Jolowicz, Some Twentieth Century Developments in Anglo-American Civil Procedure, in 1 STUDI IN ONORE DI ENRICO TULLIO LIEBMAN 217, 241-44 (1979).
The absence of fishing-type lawsuits is more a function of the loser-pays cost- shifting principle common to all major legal systems except our own than it is a function of different investigative procedures. In this connection see Kaplan's remarks on aspects of discovery in England:
[R]epresenting a possible loser, the solicitor is interested in holding down the expenses on his own side and in seeing to it that his opponent's reimbursed expenses are kept well within reason; representing a potential winner, he is still concerned lest he incur expenses that will be found inessential and thus will not be reimbursed.
Kaplan, An American Lawyer in the Queen's Courts: Impressions of English Civil Procedure, 69 MICH. L. REV. 821, 822 (1971).
Hostility to fishing is not confined to other legal systems, nor based solely on considerations of efficiency. Judge Rifkind lamented a decade ago that
the power for the most massive invasion into private papers and private information is available to anyone willing to take the trouble to file a civil complaint. A foreigner watching the discovery proceedings in a civil suit would never suspect that this country has a highly-prized tradition of privacy enshrined in the fourth amendment.
Rifkind, Are We Asking Too Much of Our Courts? 70 F.R.D. 96, 107 (1976).
Although the Kaplan-von Mehren
article correctly observes that German hostility to fishing is a tension
point in the contrast with American practice, the example that the authors
choose to illustrate the point is wrong. Without citation to authority,
they say: "Suppose an eyewitness to an occurrence, testifying in
court, states that another person was present: is it permissible [for
the court or the adversaries] to ask him then and there to give up the
person's name? The answer commonly given is no."' Kaplan-von Mehren,
supra note 8, at 1247. However, the authors continue, "there is no
bar to a party's asking the witness the same question in the court corridor,"'
id., after which, presumably, that side would nominate the newly-identified
witness for subsequent judicial examination. I have put this example to
countless German legal professionals familiar with German civil procedure,
and I have never found one who thought it was other than flatly wrong.
Whatever the etiquette may have been in Hamburg in the 1950s when Kaplan
and his coauthors were at work, there is today no convention restricting
judge or counsel from following up such leads during the course of courtroom
examination of a witness.
FN79 Kaplan-von Mehren, supra
note 8, at 1236.
FN80 Id. at 1237. In a similar
vein the authors observe that the German judge's "questing attitude"'
toward developing the case, encouraged by ZPO § 139 (on which, see supra
note 71), tends "to debilitate German lawyers by providing them with
an inward excuse for sloppy work,"' although "it would be hard
to say whether in the long run this is outweighed by benefits, such as
helping the party represented by an ineffective lawyer."' Kaplan-von
Mehren, supra note 8, at 1228. Followers of the public speeches of Chief
Justice Warren Burger are aware that concern about the extent of sloppy
lawyering is not confined to Germany. Sloppiness aside, it is certainly
the case that, because German judges bear the main responsibility for
fact-gathering, German lawyers do less (and get paid less) than American
lawyers. See infra note 89.
FN81 Rhode, Ethical Perspectives
on Legal Practice, 37 STAN. L. REV. 589, 635 (1985).
FN82 Kaplan-von Mehren, supra
note 8, at 1236.
FN83 See supra note 31.
FN84 S. LANDSMAN, supra note
2, at 36.
FN85 3 WILLIAM BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND *330 (1768). This emphasis on fact-finding
as the central function of the civil procedural system remains, I believe,
the dominant view both in the Anglo-American tradition and in Continental
civil procedure. I think that the work of John Thibaut and Laurens Walker,
A Theory of Procedure, 66 CALIF. L. REV. 541 (1978), does not represent
a true departure from this view. When the authors call it a "misconception
that the fundamental objective of the legal process is the discovery of
truth,"' id. at 556, they are not denying that the proper work of
the legal system is typically to establish the sequence of past events.
Rather, they are pointing out that the experimental method for ascertaining
truth in the sciences must be largely foreclosed to the law, in part because
legal disputes so characteristically do arise out of past facts.
FN86 See infra text accompanying
FN87 For good English-language
accounts see RUDOLF B. SCHLESINGER, COMPARATIVE LAW: CASES, TEXT, MATERIALS
157-82 (4th ed. 1980); Griess, Legal Education in the Federal Republic
of Germany, 14 J. SOC'Y PUB. TCHRS. L. 166 (1978).
FN88 For detailed discussion
in English, see Meador, supra note 8.
FN89 Data for 1983 appears
in STATISTISCHES BUNDESAMT, STATISTISCHES JAHRBUCH 1984 FUR DIE BUNDESREPUBLIK
DEUTSCHLAND 338 (1984). Table 15.2, "Judges in State and Federal
Service,"' shows 16,429 state and 493 federal judges. Using data
for the year 1973, Kotz estimates that about one German lawyer in five
is a judge. "To the foreign observer,"' he notes, "the
most conspicuous feature of the German legal profession is perhaps the
very large judiciary . . . . " Kotz, Legal Profession, supra note
8, at 71. The size of the German bench is, of course, no mystery. "The
real reason that the Germans need more judges is the same reason that
they need fewer lawyers: their civil procedure assigns to the judiciary
much of the workload that we leave to private counsel."' Langbein,
Judging Foreign Judges Badly: Nose Counting Isn't Enough, JUDGES' J.,
Fall 1979, at 4, 6.
FN90 Except for the federal
constitutional court, discussed infra text accompanying note 101.
FN91 Manfred Wolf, Ausbildung,
Auswahl und Ernennung der Richter, in HUMANE JUSTIZ: DIE DEUTSCHEN LANDESBERICHTE
ZUM ERSTEN INTERNATIONALEN KONGRESS FUR ZIVILPROZESSRECHT IN GENT 1977,
at 73, 77 (P. Gilles ed. 1977).
FN92 Id. For English-language
discussion of the recruitment and promotion process in Bavaria, see Meador,
German Appellate Judges: Career Patterns and American-English Comparisons,
67 JUDICATURE 16, 21-25 (1983).
FN93 DEUTSCHES RICHTERGESETZ
[DR subscript I G] (Statute on the German Judiciary) § 12(2). DR subscript
I G § 22 governs the grounds for dismissing an untenured judge; see GUNTHER
SCHMIDT-RANTSCH, DEUTSCHES RICHTERGESETZ § 22, at 202-08 (3d ed. 1983).
There are special rules limiting the competence of untenured judges, DR
subscript I G §§ 27-29, in order to assure litigants that major decisional
responsibility will be in the hands of tenured (i.e., unquestionably independent)
judges. See EDUARD KERN & MANFRED WOLF, GERICHTSVERFASSUNGSRECHT 138-39
(5th ed. 1975).
FN94 Although much of the work
of a LG chamber is now assigned to a single judge for discharge without
collegial participation, see supra note 13, the basic unit of organization
remains the collegial chamber, and there is still an important residue
of collegial first-instance business.
FN95 Herrmann, The Independence
of the Judge in the Federal Republic of Germany, in CONTEMPORARY PROBLEMS
IN CRIMINAL JUSTICE: ESSAYS IN HONOUR OF PROFESSOR SHIGEMITSU DANDO 61,
FN96 These factors were mentioned
to me repeatedly in 1984 when I had occasion to inquire about the promotion
process in interviews with German judges and with German law professors
specializing in civil procedure and judicial administration. See also
infra note 113 and accompanying text.
FN97 Wolf, supra note 91, at
77; see also Meador, supra note 92, at 22-23.
FN98 Meador, supra note 92,
at 24-25. The BGH now has more than a hundred judges and a dozen chambers.
Call to that court is perhaps not quite the prize that we might imagine
the pinnacle to be. There has been some concern that not enough of the
best OLG judges aspire to join the BGH, despite the enhancement in rank,
authority, and compensation that promotion to the BGH entails. The opportunity
for promotion to the BGH usually comes when a judge is well into his forties
or fifties and long settled in his home state. The BGH sits in Karlsruhe,
an unexciting city on the southwestern fringe of the country. Some prominent
OLG judges decline to exile themselves and their families to Karlsruhe
from life in Munich, Dusseldorf, Frankfurt, or Hamburg. We can imagine
the problem in American terms by supposing that we had created a supreme
court of nonconstitutional law and sited it in Akron, Boise, or Macon;
perhaps we would have found Learned Hand and Henry Friendly not too anxious
for that last round of promotion. But laying aside this peculiarity about
the BGH, it can be said with great confidence that most German judges
aspire to maximize their chances for promotion through the lower levels
of the pyramid.
FN99 STATISTISCHES BUNDESAMT,
supra note 89, at 338 (Table 15.2).
FN100 For discussion in English,
see ARTHUR T. VON MEHREN & JAMES R. GORDLEY, THE CIVIL LAW SYSTEM
133-37 (2d ed. 1977); Meador, supra note 8, at 31-34. Continental specialized
court systems are distinguished from ours by having their own appellate
systems. In the United States, appeal lies from the specialized tax court
to the regular courts of appeal, and thereafter to the Supreme Court.
In Germany, appeal lies from the tax court to the supreme court for tax
matters, with no possibility of review by the federal supreme court of
ordinary jurisdiction (BGH).
FN101 For an English-language
account, now a little dated, see DONALD P. KOMMERS, JUDICIAL POLITICS
IN WEST GERMANY: A STUDY OF THE FEDERAL CONSTITUTIONAL COURT 113-59 (1976).
[GVG] (Statute on the Organization of the Courts) §§ 93-95. See generally
OTTO R. KISSEL, GERICHTSVERFASSUNGSGESETZ §§ 93-95, at 894-911.
FN103 For commentary in English,
see Meador, supra note 8, at 44-72.
FN104 The case for the generalist
judiciary is argued anew in RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS
AND REFORM 147-60 (1985). It would entail a large digression in the present
article to detail all of my disagreements with Judge Posner's treatment
of this subject. I find particularly unpersuasive Posner's central claim
that specialized courts are unworkable in fields where differences of
view persist among the specialists. "It is remarkable in how few
fields of modern American law there is a professional consensus on fundamental
questions."' Id. at 153. This is an exaggeration, and one that resembles
in an eerie way the all-law-is-politics theme of a contemporary legal-academic
movement with which Posner is ordinarily not associated. The truth is
that even in fields like constitutional law or torts (Posner's examples)
where much is unsettled, there are vast areas of consensus. The work of
legal doctrine is to forge consensus. The more learned the court, the
more likely is the court to do that job well.
FN105 For discussion of Bavarian
practice, see Meador, supra note 92, at 22- 23.
FN106 See Wolf, supra note
91, at 77-78.
FN107 The following remarks by Justice Seymour Simon of the Illinois Supreme Court, made in an unpublished speech, deserve wide attention:
For 15 years I was an elected ward committeeman in the nation's most publicized local political party organization, the Democratic Party of Cook County. As a committee member, I attended slate-making sessions for judges as well as other candidates--sessions which, until recent years, always were held behind closed doors. There, I have seen those seeking to be picked as judges sponsored and praised by their committeemen, but praised not for their learning and experience in the law, praised not for their academic backgrounds or legal achievements, but praised instead for their loyalty to their political party, for their work in the precincts or, in the political lingo that became standard usage in appraising the quality of judicial aspirants, "for remembering from whence they came."' Recently a committeeman who was also an alderman was quoted as favoring an aspirant because he would be an "alderman's judge."' I have heard would-be judicial candidates asked to pledge their support to all the other candidates on their party's ticket even though they had no idea who these candidates would be. Sometimes judgeships were parceled out to ward organizations because it was "their turn"' or as a reward for performance in previous elections. . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
John Gilligan, Governor of Ohio from 1971 to 1975 . . . , wrote this about judicial elections: "It's a murderous ordeal to go through. It takes a full year out of your life handing out matchbooks and going to wiener roasts. There are lawyers who would be very fine judges who simply would not subject themselves to that. . . . "
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Of still greater concern is the unfortunate truth that the all-pervasive need for campaign funds in modern politics intertwines judicial elections with political fundraising. . . . Although under our Supreme Court Rules and those of the ABA a [campaign] committee ostensibly shields a candidate from the identity of his campaign contributors, a candidate is not prohibited from attending his own fundraising parties where he can observe who shows up and who doesn't. For that matter, I wonder how many judicial candidates turn down checks handed to them by acquaintances who meet them on the street. And, all campaign contributions, including names of contributors of more than $150, must be reported by the fundraising committee so that anyone who is curious, including the candidate or his friends or family, can examine these reports. And there is no rule against examining an opponent's reports.
S. Simon, After "Greylord"'
What? Address at the Chicago Bar Association and Illinois State Bar Association
1983 Dinner Honoring Illinois Supreme Court 4-5, 6-7, 10-11 (November
4, 1983) (unpublished speech; copy on file with The University of Chicago
FN108 Frankel, supra note 1,
FN109 Part of what makes the
federal bench more attractive--that the supremacy clause makes federal
judges more powerful--is beyond emulation. But other attributes of the
federal judicial career that could be copied must affect the quality of
the recruits. For example, the federal salary scale, while hardly munificent,
is significantly better than at the state level, especially when account
is taken of the generous federal judicial pension scheme. Lifetime tenure
makes the federal judicial career more attractive, sparing federal judges
from the career uncertainty and indignity to which state trial judges
are exposed through the elective process, on which see supra note 107.
The appointive process for selecting judges enhances the influence of
the organized bar and other interest groups that have some concern to
assure professional competence in the judiciary.
FN110 See supra note 25.
FN111 ZPO § 313(I)(5)-(6);
see 2 STEIN-JONAS. supra note 46, § 313(IV)-(V), at 1279-84.
FN112 See Weyrauch, The Art
of Drafting Judgments: A Modified German Case Method, 9 J. LEG. ED. 311,
FN113 In a considerable sample
of nondivorce cases that went to judgment (i.e., that resisted settlement)
in the main first-instance court (LG), an average 43 of the total time
devoted to all aspects of the courts' work (including review of the dossier,
fact-gathering, and oral hearings) was spent on writing the judgment.
2 BUNDESRECHTSANWALTSKAMMER, TATSACHEN ZUR REFORM DER ZIVILGERICHTSBARKEIT:
AUSWERTUNGEN 64-65 (1974).
FN114 See Leubsdorf, Constitutional
Civil Procedure, 63 TEXAS L. REV. 579, 630 & n.311 (1984).
FN115 Appeal de novo lies from the court of petty jurisdiction (Amtsgericht) to the court of general jurisdiction (LG). For the LG, which is the main first- instance court, the OLG is the court with responsibility for review de novo.
Following are some figures
that give a feel for the frequency of appeal de novo to the OLG from the
LG. In 1981 the LGs had a first-instance caseload of 574,860 cases and
the OLGs had a caseload of 85,021. The LGs decided 106,538 cases by full
judgment ("streitiges Urteil"'), which is the main cohort of
cases that can give rise to appeal de novo; in the same year the OLG decided
25,299 cases by "streitiges Urteil."' STATISTISCHES BUNDESAMT,
supra note 83, at 339 (Table 15.4.1).
FN116 See supra text accompanying
FN117 Kaplan-von Mehren, supra
note 8, at 1451; see id. at 1453 (discussing the purposes of review de
FN118 See supra text accompanying
FN119 See Kaplan-von Mehren,
supra note 8, at 1451.
FN120 Id. at 1454.
FN121 MANUAL, supra note 5,
FN123 Id. § 1.10.
FN124 Id. (italics deleted).
FN125 Id. § 1.20. The Manual
also encourages "the practice of obtaining counsel's views of the
case by requiring the filing before discovery of initial pretrial briefs
containing all the legal and factual contentions of the parties."'
Id. We have seen that it is characteristic of German practice that counsel
may guide the court's work by submitting written commentary on issues
of law or fact. See supra text between notes 20 and 21.
FN126 MANUAL, supra note 5,
FN127 Id. § 1.30.
FN128 Id. § 0.50 ("Ordinarily,
in a complex case, use of sequential discovery-- first wave, second wave,
and special issue--promotes efficiency, orderliness, and early completion
of all permissible discovery."'); see also id. § 1.50.
FN129 FED. R. CIV. P. 26(f).
"'Rule 26(f) mandates the holding of a discovery conference upon
proper motion by a party. In the complex case, however, the judge should
not ordinarily wait for the filing of such a motion . . . . " MANUAL,
supra note 5, § 1.95. Judge Schwarzer has expressed "dissatisfaction"'
that the Manual is inadequately directive. WILLIAM W. SCHWARZER, MANAGING
ANTITRUST AND OTHER COMPLEX LITIGATION: A HANDBOOK FOR LAWYERS AND JUDGES
§ 1-1, at 4 (1982).
FN130 MANUAL, supra note 5,
§ 2.60; see also id. § 3.40.
FN131 See supra note 24 and
accompanying text. Judith Resnik remarks on the informality of managerial
judging, noticing that these conferences resemble "'ordinary business
meetings."' Resnik, supra note 6, at 407.
FN132 Resnik, who popularized
the term "managerial judging,"' observes the similarity to the
German practice in promoting settlement as it was described in the Kaplan-von
Mehren article. "Ironically, their description of the German judge--'.
. . as insistent promoter of settlements'--now seems apt for the American
judge as well."' Resnik, supra note 6, at 386 (citing Kaplan-von
Mehren, supra note 8, at 1472).
FN133 "[O]ver ninety percent
of the cases in most courts terminate through settlement or dismissal
prior to trial."' Miller, The Adversary System: Dinosaur or Phoenix?
69 MINN. L. REV. 1, 14 (1984); see id. at 4 n.7 (citing ADMINISTRATIVE
OFFICE OF U.S. COURTS, ANNUAL REPORT OF THE DIRECTOR 1983, at 142 (Table
FN134 FED. R. CIV. P. 42(b).
FN135 See supra text accompanying
FN136 FED. R. CIV. P. 53(c).
But see Brazil, Referring Discovery Tasks to Special Masters: Is Rule
53 a Source of Authority and Restrictions? 1983 AM. B. FOUND. RESEARCH
J. 143. For an account of the work of the court-appointed masters in managing
pretrial procedures in the mammoth AT&T antitrust case, see Hazard
& Rice, Judicial Management of the Pretrial Process in Massive Litigation:
Special Masters as Case Managers, in WAYNE D. BRAZIL, GEOFFREY C. HAZARD,
JR. & PAUL R. RICE, MANAGING COMPLEX LITIGATION: A PRACTICAL GUIDE
TO THE USE OF SPECIAL MASTERS 77 (1983).
FN137 Resnik, supra note 6,
at 378, 380. Under the rubric of "managerial judging."' Resnik
brings two trends: the one that so interests us in the present article,
the growth of judicial participation in the fact-gathering work of the
pretrial process; and the phenomenon to which Chayes directed attention
a decade ago, the increasing judicial responsibility for devising and
adjusting complex remedial orders in the post-trial process, primarily
for public law litigation. Chayes, The Role of the Judge in Public Law
Litigation, 89 HARV. L. REV. 1281 (1976).
FN138 Resnik's article, which is so instructive in pointing to the dangers that lurk in unconstrained managerial judging, sometimes conveys the impression that managerial judging is a foible that the judiciary might be persuaded to abandon. E.g., Resnik, supra note 6, at 445 (the federal bench has been "[s] educed by controlled calendars, disposition statistics, and other trappings of the efficiency era and the high-tech age"'; further, "[n]o one has convincingly discredited the virtues of disinterest and disengagement, virtues that form the bases of the judiciary's authority."'). This yearning for the golden age of judicial passivity exaggerates the potential for retracing our steps, because it does not give due weight to the factors that gave rise to managerial judging: the growth in complex litigation and the difficulty of distinguishing the Big Case from slightly smaller cases.
In emphasizing the Big Case as the origin of managerial judging in American procedure, I do not mean to imply that I think that managerial judging ought to be confined there. To the contrary, I agree with the point that Hein Kotz has long asserted, most recently in Kotz, Zur Funktionsteilung zwischen Richter und Anwalt im deutschen und englischen Zivilprozess, in FESTSCHRIFT FUR IMRE ZAJTAY 277, 290-91 (R.H. Graveson et al. eds. 1982), that the German advantage in civil procedure is at its greatest in the Small Case, where the costliness of adversary fact-gathering is intolerable. See also Jolowicz, supra note 78, at 270 (cited by Kotz, predicting that the Anglo-American systems will experience "'an abandonment of the adversary process, even if only for small claims"'). For cogent evidence of the judicial hand in small claims litigation, see Galanter, Palen & Thomas, The Crusading Judge: Judicial Activism in Trial Courts, 52 S. CAL. L. REV. 699, 706-08 (1979).
A full account of the decline of adversary fact-gathering in the real practice of modern American dispute resolution would also give due attention to the rise of administrative decision-making. See, e.g., JERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY DISABILITY CLAIMS (1983), describing one corner of the field:
There are perhaps 5,600 state agency personnel (supported by 5,000 more) whose sole function is to adjudicate disability claims. Over 625 federal administrative law judges hear administrative appeals from state agency denials. This total of more than 6,000 adjudicators approaches the size of the combined judicial systems of the state and federal governments of the United States. And the claims that these officials adjudicate are not small. The average, present, discounted value of the stream of income from a successful disability application is over $30,000. Disability claims, on the average, thus have a value three times that required by statute for the pursuit of many civil actions in federal district courts.
Id. at 18.
FN139 MANUAL, supra note 5,
§ 2.711, relying upon FED. R. EVID. 1006, notices the possibility of using
summary rather than verbatim testimony for "[v] oluminous or complicated
data."' On the parallel to German techniques of recording and consulting
testimony, see supra text accompanying notes 15-18.
FN140 Kaplan, supra note 78,
FN141 Von Mehren, supra note
FN142 I have discussed the
origins and the shortcomings of our nontrial plea bargaining procedure
in Langbein, Understanding the Short History of Plea Bargaining, 13 L.
& SOC'Y REV. 261 (1979), and Langbein, Torture and Plea Bargaining,
46 U. CHI. L. REV. 3 (1978).
FN143 See supra text at note
116. Note further that developments in German procedure have also been
undermining the contrast between concentrated and discontinuous trial.
Regarding the German effort to limit discontinuity, see supra note 9;
see also von Mehren, supra note 4, at 370-71.
FN144 Von Mehren, supra note
4, at 364 (note omitted).
FN145 Id. at 364-65.
FN146 See, e.g., M. FRANKEL,
supra note 36, at 109-14, discussing the Ohio experiment in which judicially
edited videotaped evidence is replayed for the trial jury. Frankel observes
the potential for this technique to help liberate us from the concentration
requirement, and thus to bring us closer to Continental civil procedure.
Id. at 113-14.
FN147 Two decades ago Kenneth
Culp Davis gathered data indicating that "[f]ive out of six trials
in courts of general jurisdiction are without juries."' Davis, An
Approach to Rules of Evidence for Nonjury Cases, 50 A.B.A. J. 723, 723
FN148 ADMINISTRATION OF JUSTICE
(MISCELLANEOUS PROVISIONS) ACT. 1933, 23 & 24 Geo. 5, ch. 49, § 6.
See Ward v. James,  1 Q.B. 273, 279-303, for discussion of the minute
residual sphere of civil jury trial in England.
FN149 At least for the present,
the Americans do not find English companions on the early steps of the
path of convergence toward German-style judicial responsibility for fact-gathering.
The predicate is lacking--the English have not followed us into managerial
judging. The English have restricted in a variety of ways the growth of
complex multi-party litigation, the phenomenon that gave rise to American
managerial judging. English substantive law is narrower, their pretrial
system is primitive, their multi-party practice is less permissive, and
their loser-pays cost-shifting rules deter adventurous litigation. See
R. Prichard, A Systemic Approach to Comparative Law: The Effect of Cost,
Fee, and Financing Rules on the Development of the Substantive Law, J.
LEGAL STUD. (forthcoming); Jolowicz, supra note 78, at 226-57, especially
FN150 See generally EKKEHARD
KLAUSA, EHRENAMTLICHE RICHTER: IHRE AUSWAHL UND FUNKTION, EMPIRISCH UNTERSUCHT
FN151 Langbein, Mixed Court
and Jury Court: Could the Continental Alternative Fill the American Need?
1981 AM. B. FOUND. RESEARCH J. 195.
FN152 Id. at 215-19.
FN153 See GERHARD CASPER &
HANS ZEISEL, DER LAIENRICHTER IM STRAFPROZESS 9-10 (1979).
FN154 See Miller, supra note
133, at 21-22, for some interesting conjectures on why the bar has not
resisted the rise of managerial judging. For the cheering endorsement
of the American College of Trial Lawyers, see AMERICAN COLLEGE OF TRIAL
LAWYERS, RECOMMENDATIONS ON MAJOR ISSUES AFFECTING COMPLEX LITIGATION