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LITIGATION CULTURE IN THE UNITED STATES OF AMERICA AND IN EUROPE

PART THREE WITH FOCUS ON THE COMPARISON OF CIVIL PROCEDURAL LAW BASED ON COMMON LAW AND CONTINENTAL LAW[1]

It is the aim of this blog post to show a detailed comparison in the specific legal area of civil procedural law in order to highlight the baseline giving ground to the differences in the litigation culture and as it is also clearly visible that despite the vast separating factors interestingly enough, a rapprochement in these two legal systems can be tracked down.


a.) Adversarial Versus Inquisitorial Civil Procedural Law

The elementary difference, which should be named primarily, is that that civil procedural law based on common law is “adversarial”, while based on continental law, it is “inquisitorial”. But what do these two traits refer to? Well, the answer is in the role of the judges.


While in common law litigation the judges are equipped with a more passive role, whereas the parties, as adversaries to one another being the plaintiff and the defendant, or as other common law countries also call the litigating actors, the claimant and the respondent, are the ones mainly interacting with one another when it comes to direct and cross-examination of each other. Thus, the judge is more of a neutral arbiter who oversees and assures that the legal procedural provisions are kept as provided by law. The parties of the case each put forward their best arguments and counterarguments based on which the judge ultimately is not to find the truth but to decide and pass a verdict on the case based on the more convincing presentation of the facts and evidence.


On the contrary, in continental law the judge has a more active role, whereas the judge is the one examining the witnesses, clarifying the legal issues of the case and assisting the parties somewhat in the procedure.


A verdict is to be based on ascertaining the definite truth and thereby reaching a justified conclusion as for the decision of the case. Thus, the emphasis is not as much on which party has the more convincing argument or presentation thereof, rather it is what the judge evaluates as more credible based on the facts and evidence as shown in front of the court.


As such, the leading motives deciding the civil litigation case will remain, irrespectively if we are discussing common law or continental law, the facts and the supporting evidence, however at common law the parties are the main actors and at continental law the judge is more in the center of the procedure.


b.) Pleading of Law in front of Court


Further, since based on continental law “jura novit curia[2], that is “the court knows the law”, unlike in common law where the parties must plead not only the law but are obliged to enumerate the case law in form of precedents both underlining and contradicting their own arguments, in continental law this is unnecessary and the parties mainly must present their factual arguments and evidence in support thereof.


c.) The Role of the Complaint


Another interesting dogmatic difference can be traced when looking at the legal systems’ approach to the document, that is the complaint setting the framework of the civil litigation case itself. In accordance with the provisions laid down by common law, the complaint as such is considered merely a formality, whereas based on continental law the parameters of the litigation are determined by the complaint and all parties to the case, as well as the court must fully keep to the content of the complaint throughout the entire litigation procedure.


d.) Pre-Trial Preparation – Process of Service and Discovery


Another interesting factor that generally is a rather significant differentiator between the two legal systems in the process of service and discovery. Also in theses two areas, it is visible that the common law’s “adversarial” system hands over more tasks to the parties, as opposed to continental law’s “inquisitorial” provisions.


The parties at common law themselves are obliged to take appropriate measures for the complaint, followed by the counter-complaint to be served on the adversary party. In the United States of America in such states as California, many companies have been established in order to fulfill such process of service, whereas the parties often do not have the capacity or more realistically, would rather have a third party take care of this rather uncomfortable deed of serving an initiation for a civil law suit against the other person. Certain formal criteria is to be followed while carrying out process of service such as the proper notification of the documents being handed over establishing court documents, which usually must be followed by the words “You’ve been served”, as it is well known also from many movies containing such relevant scenes.


Under the continental legal system, the court controls any and all stages of the civil litigation procedure. Thereby, the plaintiff’s complaint will be served upon defendant and defendant’s counter-complaint will be served upon plaintiff by the court, which is represented by the judge adjudicating the case at hand. Thus, the discovery pre-trial phase at common law has more distinctively the nature of being a private matter dealt by the parties.


In accordance with the provisions as prescribed by common law, the parties themselves, entirely and completely without the intervention of the court or the judge, gather all evidence, meaning literally all, that is a statutory obligation is burdened upon the parties to collect all evidence in favor (pro) and also in disfavor (contra) of their own claim or defense in the pre-trial preparation.


As an example, discovery in practice in the state of California is usually executed by means of pre-printed forms made available by courts. These forms serve as templates for the most common interrogatories pertaining to relevant facts of certain type of cases, which will necessarily need to be clarified in order to proceed with the discovery and thereby the procedure. Such form may be requests for interrogatories, requests for admissions, requests for the production of certain documents or tangible things or request for inspection of certain premises, or request for deposition of certain witnesses, as elaborated on below.


Under continental law, such as before the currently prevailing, Act CXXX of year 2017 on the Hungarian Code of Civil Procedure took effect as of 1 January 2018, the litigating parties also in Hungary had to make all statements which they rested their case or defense upon and these needed to be supported by evidence, however unlike under common law, here the process of gathering evidence was entirely left up to the court to call upon parties to submit their relevant evidence, enhancing thereby the public function of the court also at this pre-trial discovery phase, which very well did reach into trial phases as well.


It will be visible that the new Hungarian Code of Civil Procedure now is following the path of common law as well, with its very own rigid rules, yet mix of the “inquisitorial” function of the court. Therefore, a rapprochement of the two legal systems is very visible even on the statutory law level, revealing that more similarities exist between common law and continental law, than one would imagine.


e.) Statements of Witnesses and Depositions

Yet another very striking difference is how witnesses under continental law may either give a statement by means of submission of a notarized or otherwise validated declaration to the court or in the presence of the judge personally at trial. The judge, representing the public powers of the court interrogates the witness and may allow for the counter-parties to pose questions as well, usually having to be requested in advance, leaving the full control over the procedure entirely at the hand of the judge.


However, as referred to above, under common law witnesses may be “deposed” under the deposition request initiated in the discovery phase. Such request must be formulated very carefully, whereas the proper scope of who, why and in what specific matters will be questioned about is a ground base for the legitimacy of procedural rules. Thereby, it is for the litigating attorneys to be specific on the matter at hand pertaining to the factual case yet leave the scope as open and general as possible in order to be able to dig deeper into potentially finding further evidence relevant to the case.


This procedure is rather strange to a law practitioner of a continental law regime, whereas the witness or even counter-party is asked to appear at usually the opponent’s law firm premises, nevertheless this location may also be a different, neutral location, if the specific circumstances of the case requires such accommodation.


Under the deposition rules prevailing in the state of California, a so-called court reporter must always be present at the deposition. The task of the court reporter is to prepare the verbatim transcript of the deposition. Oftentimes videos are also made of the deposition.


Such deposition may be quite stressful and intense on the deposed party. Therefore, the legal counsel of the deposed party most likely will “move the court” by means of the statutorily granted tools in form of motions and objections in order for the court to either strike or in any other form refrain from admitting the evidence or a part thereof into the trial phase of the civil litigation procedure. At common law trials, if any matter is left unspoken for following the depositions, the witnesses are usually examined in both direct and cross-examination in front of the judge and if applicable, the jury.


f.) Admissibility and Evaluation of Evidence

In accordance with the provisions of the Civil Procedural Code of most continental legal systems, especially when making a parallel with common law civil procedure, it can be stated that any evidence is admissible, unless it derives from criminal action (such doctrine exists also in common law under the “fruit of the poisonous tree rule”, meaning no evidence is admissible if the evidence or the obtaining of the evidence in any way, shape or form may be derived from illegal action), however the adjudicating judge of the matter will evaluate the weight of such evidence, which is subject to appeal.


Contrary to such system, common law provides for strict rules on the admission of evidence in civil litigation procedures. As for documentary evidence the authenticity of the document must always be proven as well, in support of the fact that the proponent claiming the authenticity of the document truthfully is what the proponent claims the document to be.


Another such filter for the admissibility of evidence under common law is the so-called “best evidence rule”. This simply means that the best evidence available to the proponent supporting their statement of a matter is the one that must be submitted to the court.


One unique rule by means of common law is based on the desire to leave vastly uncertain issues to the point of gossip out of the factual matters of a civil law suit. The so-called hearsay rule is rather complex, however the main function of the rule is for an out-of-court statement made or repeated in court to prove the truth of the matter asserted to be inadmissible under certain circumstances.

g.) The Current Trend of Rapprochement of Common Law and Continental Law


Given that in today’s modern era, globalization and world economic integration have become a multinational purpose, thereby a strong tendency can be traced to show that the differences between the common and continental legal systems are slowly aimed to disperse since the end of the 19th century and the beginning of the 20th century.


A rather interesting example is how many continental legal system countries, including Hungary[3], have brought the stare decisis doctrine into their legal systems by passing laws prescribing that the judgments of the Supreme Courts are made binding on the inferior courts.


On the other hand more and more statutes and codes are accepted in common legal system countries, the proliferation of such statutory law narrows the courts’ power of interpretation.


Another great example, which certainly made a major contribution, was the creation of the European Union, especially after year 1973, when the United Kingdom and Ireland joined. The legal framework of community law with its supremacy was created, integrating mixed elements of both common law and continental law.


Most importantly though, the ever-rising role of international law as the cradle for cooperation of the worlds’ countries is giving such lessening effect to the differentiation of common law and continental law. By adopting international treaties, model and uniform rules, as well as conventions, it is clearly traceable that despite all traditional and philosophical heritage left to humanity as to the approach to legal matters, there is yet need for unification and simplified cooperation by approximation of legal provisions. Such examples are found in the United Nations Convention on Contracts for the International Sale of Goods (concluded in Vienna, Austria in year 1980, known abbreviated as “CISG”), which was adopted by both continental and common law countries.


Thus, although, as seen in the analysis above, substantial differences do exist, especially from a legal cultural, procedural and general legal approach perspective between common law and continental law, a general convergence and approximation of the two legal systems, aided by globalization is very visibly and clearly traceable in today’s modern world.




[1] “Civil Law and Common Law: Two Different Paths Leading to the Same Goal”, Dr. sc. Časlav Pejović, Associate Professor of Private International Law, Kyushu University, Japan, (2000), page 20-30. [2] “Civil Law and Common Law: Two Different Paths Leading to the Same Goal”, Dr. sc. Časlav Pejović, Associate Professor of Private International Law, Kyushu University, Japan, (2000), page 21. [3] Based on sub-point c) of subsection (1) of § 24 of the Hungarian Act CLXI of year 2011 on the organization and administration of the courts.


*ALL RIGHTS RESERVED. FOR ANY KIND OF USAGE OF THIS ARTICLE - CONTACT: nora.szabo@noraszabolaw.com



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