The German Advantage in Civil Procedure

Abstract

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. The shortcomings inhere in a system that leaves to partisans the work of gathering and producing the factual material upon which adjudication depends. We have comforted ourselves with the thought that a lawyerless system would be worse. The excesses of American adversary 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 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. 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