Which change guarantees a negotiation by the jury

Civil litigation in the USA

The structure of civil proceedings in the USA is fundamentally different from that in Germany, particularly with regard to the jury (jury), the evidence procedure before the hearing (pretrial discovery) and the cost (American rule of costs).

1st jury

The VII. Amendment of the US-American Constitution guarantees every citizen of the US the right to bring their action before a jury (jury) to negotiate. Since the jury makes the decision, the judge's activity in this case is limited to briefing the jury and directing the hearing.

A jury usually consists of six to twelve people. Candidates are selected at random from voters and taxpayers' registers. They are legal laypeople and sometimes make their decision on the basis of sympathy.

Attending a jury is an American civic duty. The members receive a small amount of compensation for their work. Employees must be released from their employers.

2. Evidence procedure before the hearing

As in Germany, the civil process begins with the filing of the lawsuit (complaint) at the court. A brief description of the alleged facts and the claims derived from them is sufficient to bring an action.

Only after the filing of a lawsuit will the parties begin to investigate the facts of the case by means of preliminary judicial proceedings (pretrial discovery). These proceedings are conducted under the supervision of the court. However, the litigants themselves are responsible for the content and scope pretrial discovery enables

  • Request evidence (i.e. documents, movable property and electronically stored information) in the possession of the other party or a third party (request);
  • the submission of written questions (interrogatories) to answer and
  • the out-of-court hearing of parties and witnesses (deposition).

The (only) prerequisite is that the requested material can lead to the discovery of evidence. Because of this, the pretrial discovery sometimes also as »fishing expedition«Criticized.

There is no such procedure in German law. Here each party can only use the evidence that it actually has.

3. Access to evidence from foreign group companies

Only US-based litigants are directly obliged to surrender evidence. However, the disclosure obligation includes all relevant documents that a party in »possession, custody or control" Has. This regulation enables the US courts to oblige the parties to the proceedings to obtain evidence from third parties (such as foreign parent or sister companies).

4. US Evidence Assistance in a Trial Outside the US

Thepretrial discovery can in principle also be initiated by a party to the litigation who is involved in proceedings pending outside the USA. If there is a corresponding request for evidence, a US court may require a person found within its jurisdiction to provide documents or to give testimony in support of a legal dispute outside the US (Section 1782 (a) of the Federal Rules of Civil Procedure).

5. Sanctions for failure to provide evidence

If a party to the litigation fails to produce evidence to be surrendered, the court can order sanctions if it considers the failure to produce evidence to be frustrated (doctrine of spoliation). Possible sanctions are

  • the imposition of fines;
  • the exclusion of the non-submitting party's own evidence;
  • the instruction to the jury to draw the conclusion from the non-submission of certain evidence that these have a disadvantageous content;
  • the issuance of a judgment in favor of the claim against or in favor of the non-submitting party.

6. Retention

An obligation to secure evidence generally exists from the point in time at which the subsequent litigation party has or should have been aware of an impending legal dispute. Often the future defendant is given a so-called preservation letter sent. This is required to secure certain evidence.

7. Litigation costs

In Germany, the rule applies that the unsuccessful party has to bear all costs of the legal dispute. US procedural law does not recognize this rule. Each party has to bear its own costs (American rule of costs). The American lawyer bills at an hourly rate of between 300 and 600 USD. The amount of the total fee depends on how many lawyers are involved in a case. Since the implementation of the evidence procedure before the hearing (pretrial discovery) is very labor-intensive and time-consuming, high fees can quickly arise.

The plaintiff has the option of paying a contingency fee with his lawyer (contingency fee) to agree. In this case it is agreed that the lawyer will receive part of the awarded sum (usually between 30 and 40 percent). However, the contingency fee is controversial because the plaintiff bears no cost risk and is therefore encouraged to file a lawsuit even in less promising cases.

The defendant, on the other hand, has to bear the costs of his legal defense himself in any case. In order to avoid costs, the defendant therefore usually concludes a settlement (settlement) with the plaintiff, even if the lawsuit has little oversight to succeed. Only about ten percent of the complaints are heard orally.

Since July 1, 2008, the agreement of a contingency fee has also been permissible in Germany if the plaintiff would otherwise not be able to enforce his claim for economic reasons (Section 4a Law on the Remuneration of Lawyers / RVG).

8. Main hearing

After the preliminary negotiation phase has been completed, the oral main hearing follows (trial). This takes place "in one piece" without interruption. It begins - if the case is heard by a jury - with the selection of the jury members. The parties then hold their opening statements (opening statements) and the taking of evidence begins. Witnesses are heard by the parties - also by means of cross-examination.

The jury should protect against unobjective influence - such as facts that a witness can only hear from (hearsay) knows - be protected. If a party is of the opinion that such improper influence is taking place, it will raise an objection (objection). The judge then decides whether the challenged evidence will be admitted.

After the closing arguments (closing statements) the judge instructs the jury about their duties. This makes her decision (verdict) usually unanimously.

9. Punitive damages

If the action is successful, the defendant is usually required to pay damages (compensatory damages) condemned. The plaintiff is to be financially as it would be if the damaging event had not occurred. In addition, in around three percent of the judgments, the defendant is required to pay punitive damages (punative damages) sentenced to the plaintiff if the damage is based on "outrageous behavior" on the part of the defendant. Punative damages should punish the defendant for his behavior and prevent him and others from repeating it.

10. Class actions

A class action or class action (class action) is a lawsuit brought by a multitude of plaintiffs - one class - to be led. To a class belong to persons who have similar rights or rights from a similar issue. The judgment is for all members of the class binding, but only the so-called representatives are involved in the process itself, at least one of whom is a member of the class have to be. However, in certain cases you can exclude yourself from participation (opting out), e.g. if there is an interest in conducting one's own process.

The class action has a long tradition in the USA and plays an important role in product liability law in particular. However, it is not without controversy, as it leads to procedures which involve small amounts of money for the individual and which do not class action would probably not be led.