Civil Law Procedure

Evidence Documentary Record (dossier)

Gathering of evidence (no discovery) Role of judge Party requests to judge Official experts

Hague Evidence Convention

Civil Law Procedure

Hypothetical

Party submits private correspondence with attorney to establish nature of services rendered by attorney.

Evidence (documentary) Relevance Authenticity Hearsay Notarial acts Public documents

Civil Law Procedure

Hypothetical

Party submits private correspondence with attorney to establish nature of services rendered by attorney.

Exclusionary rules (documentary) Privilege Competence Privacy

“Free evaluation of evidence”

Civil Law Procedure

Why doesn’t the US abandon the exclusionary rules of evidence?

If civilian judges can exercise judgment on relevance, why not common law juries?

Civil Law Procedure

What was “The Trial” like in Kafka’s famous novel?

What is the difference between the “pre-trial” and “trial” phases?

Civil Law Procedure

Discovery (gathering of evidence) Compel production

French Code of Civil Procedure Parties and non-party witnesses Descisory oath procedure

Creation of record (dossier)

Civil Law Procedure

How does a party obtain discovery in a civilian court?

Assume you want Correspondence you sent the other party? To cross-examine the party? Testimony from a third-party?

Civil Law Procedure

French Code of Civil Procedure (1972)CHAPTER I - GUIDING PRINCIPLES FOR TRIAL

I PROCEEDINGS (Articles 1 to 3)II THE SUBJECT MATTER OF A DISPUTE (Articles 4 to 5)III THE FACTS (Articles 6 to 8)IV EVIDENCE (Articles 9 to 11)V THE LAW (Articles 12 to 13)VI THE ADVERSARY PROCEDURE (Articles 14 to 17)VII THE CONTENTION (Articles 18 to 20)VIII SETTLEMENT (Article 21)IX ORAL ARGUMENTS (Articles 22 to 23)X DUTY OF COURTESY (Article 24)

Honoré Daumier «My dear Sir, it is

impossible for me

to plead your case.

The most important

pieces are missing:

money.» (1840)

Civil Law Procedure

Article 9

It shall be incumbent on each party to prove in accordance with the law the constituent facts in view of the success of his claim.

Civil Law Procedure

Article 10

A judge may exercise such powers ex proprio motu in the giving of such directions as shall be legally appropriate.

Civil Law Procedure

Article 11Parties shall be held to assist in the implementation of directions, save that the judge may draw such conclusions from the abstention or refusal of a party in relation to the same.

Civil Law Procedure

Where a party is withholding an item of evidence, the judge may, on the application of the other party, order him to produce the same, where necessary under pain of a civil penalty. He may, on application by one of the parties, request or order, where necessary under the same penalty, the production of all exhibits in the possession of third parties where there are no legitimate impediment to producing them.

Civil Law Procedure

How is information obtained from parties?

Civil Law Procedure

CHAPTER III PERSONAL APPEARANCE OF THE PARTIES - Articles 184-198

• A judge may order parties to appear in person.• The parties shall be examined in each other’s

presence [and] be confronted where one of the parties so requests.

• The parties shall answer personally to questions put to them without being able to read from any notes.

Civil Law Procedure

• Personal appearances shall take place in the presence of legal representatives of all the parties or on them being called.

• The judge shall put, where it seems necessary to him, the questions which the parties shall submit to him after the examination.

• A procès-verbal shall be drawn up noting down the statements of the parties and of their absence or refusal to answer.

Civil Law Procedure

• The examined parties shall sign the procès-verbal after having verified or certified that it conforms to their statements …

• [The judge] may order the appearance of corporate entities … in the person of their authorised representatives.

• The judge may draw any conclusion in law from the statements of the parties, from the absence or refusal to answer in relation to a party and establish the same as likely factum probantia.

Civil Law Procedure

How is information obtained from non-party witnesses?

Civil Law Procedure

SECTION II THE INQUIRYArticles 204-221• Any person may be heard as a witness [unless

lacking] legal incapacity • Any person called upon to testify shall be bound

to do so. … Parents or relatives in direct line with one of the parties or a partner or previous partners to a marriage, may object to giving testimony.

Civil Law Procedure

• The judge shall hear the testimony of the witnesses … in the order he shall determine.

• The witnesses shall be heard in the presence of the parties or the latter being called [and their legal representatives].

• Persons who are heard as witnesses shall take the oath to tell the truth. The judge shall remind them that perjury shall be punishable by way of a fine or imprisonment.

Civil Law Procedure

• Witnesses may not read from any notes.• Parties shall neither interrupt, nor question, nor

attempt to influence the witnesses who is giving testimony, nor address them directly …

• The testimony shall be recorded in a procès-verbal. Documents … shall be annexed.

• The judge shall grant leave to the witness, at his request, to seek such expenses in relation to which he is entitled to being paid.

Civil Law Procedure

Alexis Charles-Henri Clerel de Tocqueville• Studied law in Paris • Substitute judge in Versailles before coming to the United States

Civil Law Procedure

Strategy question:

How should US party dealing with civilian counter-party deal with lack of info?

Civil Law Procedure

Obtaining US discovery• File suit in US

• Discovery, before dismissed on forum non conveniens grounds

• Agree to dismissal, on condition of voluntary discovery

• Procedures on assistance to foreign courts

Civil Law Procedure

Role of judge• Investigation framed by pleadings

• Parties present evidence• Parties make requests

• Judge questions witnesses, on request• Oral hearings (deadlines)• Written notes/transcript• Judge appoints “official expert”

• “Stuttgart Model”

Civil Law Procedure

Doesn’t piecemeal litigation invite delays?

And when does litigationever end?

Civil Law Procedure

French Code of Civil Procedure Article 809 (as amended in 1985 and 1987)

The president may … provide by way of summary interlocutory proceedings for such protective measures … as to keep the status quo of the matters as required, either to protect from an impending damage, or to abate a nuisance manifestly illegal.

Civil Law Procedure

Article 809 (Cont.)

Where liability resultant from an obligation cannot be seriously challenged, he may award an interim payment to the creditor or order the mandatory performance of the obligation even where it shall be in the nature of an obligation to perform.

Civil Law Procedure

Can a party to US litigation obtain discovery from

a foreign party? a foreign non-party?

Civil Law Procedure

Civil Law Procedure

Foreign gathering of evidence• FRCP 28(b): procedures for foreign depositions • Hague Evidence Convention

• US court issues letter rogatory• Foreign court compels witness• Witness subject to examination (counsel questions,

transcript)• Foreign “blocking statutes”

• Prevent “fishing expedition” (antitrust cases)• Foreign party may seek exemption

Civil Law Procedure

SUB-TITLE V THE IN-COURT OATH

Article 317The party who invite that evidence shall be taken on oath shall set forth the facts in relation to which it shall be taken.

The judge shall order evidence on oath where it is permissible and shall specify the facts on which it shall be taken.

Civil Law Procedure

Article 319

The judgment which orders the oath shall fix the date, time and venue where it shall be taken. It shall formulate the question in relation to which the oath is to be taken and shall point out that perjury will expose a witness to criminal sentences.

Civil Law Procedure

Article 319 (cont.)

Where the oath is called for in relation to a party, the judgment shall specify further that the party in relation to whom the oath is called for has failed in his claim where he refuses to take the oath and fails to request one in return.