Judges as guardian angels: the German practice of hints and feedback.

• Author: Emerson, Robert W.

ABSTRACT

The German practice of Richterliche Hinweispflicht is a judicial duty to give hints and feedback. In a very proactive position, the German judge asks questions of the parties designed to clarify and sharpen the key facts and issues and to give the parties a chance to correct matters that may be grounds for disposition. German judges also must ensure that the parties understand all matters that could affect the outcome of the case. In effect, the German judge's roles may be viewed as civil servant, teacher, and activist, rather than as umpire and overseer, as in the United States.

American civil jurisprudence would benefit from this German concept of the judiciary's role. Judicial participation could increase without resistance in four areas of the U.S. system: the pretrial conference, the pretrial scheduling order for discovery, the use of special masters, and the calling and questioning of witnesses. Under the American approach, although the judiciary has the right to take a more active role in proceedings, most judges fail to exercise this power other than for, perhaps, complex litigation. For example, American judges are given discretionary authority to call a pretrial conference where they can take action with respect to numerous aspects of a case. If the rules of civil procedure were amended to make mandatory both pretrial conferences and the consideration of certain topics, the American system would function more fairly and efficiently, like the German system. American judges could also increase their involvement by facilitating detailed discussions of settlement agreements for all civil cases.

Recommendations must account for the difficulties inherent in extracting any procedural rule from a foreign system and trying to import it into another unique, complex system. Implementing a recommendation can be most successfully undertaken when two cultures are similar enough to be harmonized. A German legal system typically described as inquisitorial seems completely at odds with the American adversarial system and its legal history. However, recent German reforms and changes to the U.S. Federal Rules of Civil Procedure have brought closer these two systems. Both countries seek to recognize due process rights and to avoid situations where litigants will be surprised about a verdict. Additionally, American courts have moved closer to their European counterparts in the past decade by adopting a heightened pleading standard, comparable to the standards imposed by the American Law Institute ("ALI") and UNIDROIT.

Many potential obstacles to implementation relate to judicial workload, to the legal profession's distaste for increased judicial participation, and to the judiciary's limited view of its role. These obstacles could be overcome through the increased use of special masters and magistrates and the continued use of contingency fees. Any move toward increased judicial involvement must be made cautiously in a system so fundamentally and stubbornly adversarial as is the American civil trial process. Still, such reforms can and should be pursued.

TABLE OF CONTENTS I. INTRODUCTION A. The Problem B. A Solution II. JUDGES AS GUARDIAN ANGELS: HINWEISPFLICHT A. Some Background on the German Legal System B. ZPO [section] 139: Richterliche Hinweispflicht 1. Background of ZPO [section] 139 2. Other Sections of the ZPO That Set Forth Hinweispflicht C. The Scope of Hinweispflicht in German Law 1. ZPO [section] 139(1) 2. ZPO [section] 139(2) 3. ZPO [section] 139(3) D. Claims, Material Examination, the Law of Evidence, and Appeals in Germany E. Hinweispflicht and Legal Representation III. INCORPORATING JUDICIAL HINTS AND FEEDBACK INTO AMERICAN CIVIL PROCEDURE A. The Advantage of Judicial Participation in Civil Law Cases B. Potential Convergence C. The Pretrial Conference D. Judicial Authority to Manage Witness Testimony E. Judicial Responsibility to Facilitate Settlement IV. PROBLEMS WITH INCORPORATING HINWEISPFLICHT INTO AMERICAN CIVIL PROCEDURE A. General Problems B. Procedural Rules Are Too Interconnected to Copy C. Inefficiency Can Be Valuable D. Attorneys Are More Skilled at Fact Finding E. The Current Legal Hierarchy Will Resist V. AVOIDING OBSTACLES TO REFORM A. Roadblocks to Reform B. Use of Special Masters and Magistrate Judges as a Potential Solution to the Problem of Understaffing C. Use of Contingency Fees as a Potential Solution to the Problem of Lawyer Resistance VI. CONCLUSION I. INTRODUCTION

1. The Problem

   Many jurisprudents have criticized the American system of litigation as being too complex, costly, and inefficient. (1) Some critics blame this inefficiency on the passive nature of the American judiciary, which functions as more of an umpire than a coach and, thus, leaves the parties mostly to their own devices until the trial commences. (2) The American judge--with the exception of complex litigation (3)--interferes very little in the pretrial process. The American process instead allows the parties and their counsel to determine the scope of discovery, gather and exchange evidence, and interview witnesses using their own discretion and (for the most part) schedule.

   In the absence of judicial management, the adversarial pretrial process can become protracted and extremely expensive. Although some scholars find value in the American system because of the adversarial process, (4) many see predominantly lawyer-controlled procedure as a hindrance to truth seeking. (5) Furthermore, while Americans are proud that their system gives parties their "day in court," (6) the adversarial system tends to be slow and expensive. In fact, these flaws may lead to opposing forces or at least some variation from the usual, adversarial approach: "the more committed a legal system becomes to adversarial procedure, the more likely it is to embrace parallel non-adversarial alternatives" as means to settle the dispute, such as arbitration, mediation, or, in criminal law, plea bargaining. (7) Moreover, adversarial methods involving discovery or expert testimony are often used "as weapons for wearing down the other side" and "often bear little relationship to their supposed purpose of truth-seeking." (8) Using the adversarial method strategically often results in the success of the party who has the most resources--to both mire down the process with multiple motions for production and pay for experts willing to testify in their favor. (9) These shortcomings indicate that the U.S. system could be better served by incorporating some aspects of the German inquisitorial system--specifically, the duty of judges to give hints and feedback.

   Indeed, donning the inquisitor's robes would not be so radical an approach. Although this history is often overlooked, the American legal system already has embraced inquisitorial procedure. (10) In 1802, Congress enacted legislation stating that " [i]n all suits in equity, it shall be in the discretion of the court, upon the request of either party, to order the testimony of the witnesses therein to be taken by depositions." (11) At that time, courts of equity procured witness testimony before court-appointed officers outside of the courtroom. (12) As court procedure developed, the American system came to be seen as wholly adversarial and the inquisitorial roots of the courts of equity were lost. Consider Judge Douglas Ginsburg's 2003 statement during oral argument that "a judicial officer with investigative responsibilities ... [is,] dare we say, [a] French approach." (13) This statement suggests what many in the legal field believe: "that the very concept of an investigatory judicial role is positively un-American." (14) However, as described above, as late as the nineteenth century, American courts of equity used a significantly inquisitorial form of process. (15)

2. A Solution

   This Article will explore the German practice of Richterliche Hinweispflicht--the judicial obligation to give hints and feedback--in two areas. First, it will look at how the American judiciary does, to some extent, engage in this practice. Second, it will explore how this duty could be further incorporated into American civil procedure to make civil litigation more efficient and less costly. In general, the study of comparative procedure, by challenging and defending concepts and issues in America's procedural process, allows for a better understanding of U.S. procedures as well as those of other countries. Only after understanding the complexities, strengths, and weaknesses of each system may America use the knowledge to consider reforming its own system, adopting new models, or simply broadening its perspectives. (16)

   Richterliche Hinweispflicht, which is codified in [section] 139 of the German Code of Civil Procedure (Zivilprozefiordnung [ZPO]), is an obligation on the part of the judge to ask questions of the parties. This duty is designed to clarify and sharpen the key facts and issues in a case and give the parties an opportunity to correct matters that may be grounds for disposition. (17) The duty also obliges German judges, while in this role of professor, to instruct lawyers and litigants alike and ensure that the parties understand all matters that could affect the outcome of that case. (18) The judge also controls and conducts the proceedings so as to safeguard the unity of law in the system as a whole. (19)

   There are four areas of American civil procedure in which this kind of judicial participation might be increased with minimal resistance: the pretrial conference, the pretrial scheduling order as to discovery, the use of special masters, and the calling and questioning of witnesses. This Article's recommendations address the difficulties inherent in extracting any procedural rule from a foreign system and attempting to import it into another unique, complex, and potentially resistant system. Any move toward increased judicial interference must be made cautiously in a system as...