Torsten Lörcher, CMS
This is an extract from the fourth edition of GAR’s The Guide to Advocacy. The whole publication is available here.
Advocacy in continental court proceedings
As a characterisation of the differences in procedure between common law and civil law jurisdictions, common law proceedings are often described as being of an ‘adversarial’ nature whereas civil law proceedings are supposedly ‘inquisitorial’. Under common law, the parties’ counsel are the main actors, particularly when it comes to the taking of evidence. The judge’s task is confined to acting as an umpire in the fact-finding process by monitoring the oral arguments and witness examinations, and guaranteeing compliance with certain procedural rules. In contrast to this, the judge takes a more prominent role in civil law proceedings. In particular, it is the judge who is in charge of the taking of evidence. This is well illustrated by the continental approach to the handling of witnesses and experts. Other important traditions of continental European court proceedings that will affect the style in which a case is presented are the applicable standard of proof, the evidential value the court places on different types of evidence and the role of the ‘truth’ in the proceedings.
One of the most significant differences in approach between common law and civil law systems relating to the handling of witnesses are the principles governing witness preparation and the hearing of a witness. While they have been bridged to a large extent in international arbitration by converging practices, they do have an important role in state court proceedings.
Examination of witnesses
As pointed out in the introductory remarks, in civil law systems the judge has a primary role in directing the proceedings. The predominant role of the judge in continental European civil proceedings becomes particularly obvious when it comes to examining witnesses. As a general rule, the questioning of witnesses is led by the judge, who will have read the submissions of the parties in advance of the hearing so as to prepare all the relevant questions to be put to each witness and who will be fully prepared at the hearing. The judge will primarily address open and non-leading questions that focus on those contentious issues for which the witness was called, and that the judge finds relevant for the determination of the dispute at hand. In contrast, the role of the lawyers is more limited. They may only ask questions when the judge has finished his or her examination. In some civil law countries, such as Germany, parties’ counsel have the right to address those additional questions directly to the witness. In parts of continental Europe where civil procedure rules are even stricter in this regard, such as in France, counsel may only forward their own questions to the judge, who will ask them himself or herself to avoid any direct confrontation between counsel and a witness. However, if the judge is well prepared, additional questions by counsel may not be needed to retrieve all relevant information from the witness and the lawyers may even decide to forego further questioning. If the parties’ counsel still insist on their own examination, they will have to respect the limits of permissible questions. They are therefore advised not to ask leading or repetitive questions and not to focus on non-contentious issues, as this type of questioning will mostly be disallowed or cut off by the judge.
The passive and more observational role of civil law counsel during the hearing of a witness as described above is one of the most controversial issues in the debate between different litigation cultures, especially when compared to the common law practice in which the parties’ lawyers are primarily responsible for conducting the questioning of a witness through direct or cross-examination. However, there are comprehensible reasons why the civil law tradition takes a different approach from the common law-style adversarial confrontation of a witness. The arguments put forward are that a neutral person appears better suited to examine a witness because the questions themselves, and in particular the way they are addressed, are not influenced by party interests. In addition, the civil law approach entails a focus on providing additional information to the court. In contrast, the purpose of cross-examination is not necessarily aimed at providing information but can rather be designed to draw the consciousness of the court to the arguments the common lawyer wishes to make. However, continental lawyers and judges often consider putting words into the mouth of a witness through leading questions to be of limited value. In times where court, and in particular arbitral, proceedings are faced with criticism regarding increasing costs and a lack of efficiency, this aspect will – at least when parties from civil law jurisdictions are involved – remain important in the future of advocacy in international arbitration.
Preparation of witnesses
Not only the examination of witnesses but also the preparation of their oral testimony prior to the hearing has been a source of controversy between different legal systems. In this respect, it is not possible to establish a consistent civil law culture with respect to the legitimacy of preparing a witness before his or her testimony in court; looking at the differences between US and English law in this regard, the same is true for the common law world. Whether and to what extent witness preparation by counsel is legally permissible varies widely between the different continental European legal systems. The general assertion that civil law systems on the whole do not permit preparation of witnesses is not correct. Although this is true for countries such as Italy, Belgium, Switzerland and France, where the practice is forbidden, in other civil law countries, such as the Netherlands, Sweden and Austria, counsel is actually allowed to approach a witness before a hearing. In Germany, no statutory provisions expressly prohibit witness preparation before a hearing, which is why it is argued that counsel can question a witness prior to his or her testimony as long as he or she is not induced to give a false statement. Yet even where witness preparation is not prohibited, there is no uniform culture with regard to the methods used in practice as they differ across the continental civil law systems. Most European lawyers will tend to opt for witness familiarisation aimed at explaining the theory, practice and procedure of giving evidence. On the other hand, content-specific witness training involving discussions on the subject matter are less customary. Witness preparation involving mock examinations – a common practice in the US legal system – are even rarer and more unusual.
Avoid open questions
I have noticed some inexperienced advocates asking open questions in cross-examination – don’t do it. You should put your case politely but firmly. Even if the witness disagrees with you, hope that the tribunal will accept your version of events. If you ask open questions, there is a much greater risk of getting answers that you really don’t want or need.– Ian Hunter QC, Essex Court Chambers
In line with the typical continental notion that the judge is the master of the taking of evidence, expert witnesses are predominantly appointed by the court.In the civil law tradition, the purpose for calling in experts is seen as assisting the court to understand a particular issue that requires certain expertise. The parties will usually have the opportunity to question and refute the expert’s findings, for example, by offering their own expert’s opinion to the court; such experts are retained by the respective party and, in contrast to common law proceedings, they do not owe a particular duty to the court. The corresponding expert reports will therefore be considered as part of the respective party’s submissions and not as some kind of neutral evidence, meaning that the court will not place more weight on them just because the party has obtained its information from an expert. Frequently, courts will follow the findings of the expert it has appointed and use them as the foundation of its decision, provided the court considers the expert’s findings to be convincing.
The reasoning behind this approach is that court-appointed experts are deemed to be more neutral and, thus, their findings more reliable, whereas party-appointed experts are considered more likely to let the respective party’s interests influence their work. Even leaving aside the risk of bias, there is the issue that a party will often be able to find an expert to support its side of the case. In support of the civil law approach regarding experts, it is usually put forward that by letting the court appoint the expert, a battle between parties appointing experts and so-called ‘shopping for experts’ is avoided.
Standard of proof
Another subtle yet potentially crucial difference between civil proceedings in common law and continental jurisdictions is the applicable standard of proof and the threshold that needs to be met to enable the court to render a decision in favour of the party bearing the burden of proof.
Although approaches to the standard of proof differ to some extent within continental Europe, the civil law tradition generally focuses on the inner conviction of the judge when assessing whether the burden of proof has been discharged. German law, for example, stipulates that the judge needs to be ‘convinced’ of the truth of the party’s statement. In that regard, while a degree of conviction bordering on certainty is not necessary, the judge must be sure – as the German Federal Court of Justice puts it – to a practically viable degree of certainty that silences doubts without eliminating them entirely. Similarly, French and Belgian law stipulate that to satisfy the burden of proof, the party needs to establish the existence of a probability or likelihood that is sufficient to convince the judge.
In common law, the doctrine of ‘preponderance of evidence’ (e.g., the United Kingdom and the United States) or ‘balance of probabilities’ (e.g., Canada and Australia) applies in civil proceedings. According to this doctrine, the standard of proof is discharged if the fact sought to be proved is more likely true than not. Consequently, and in contrast to the civil law tradition, common law seeks to apply an objective standard of persuasion. When trying to put this standard into numbers, one could say that as soon as the likelihood has reached 51 per cent, the burden of proof is discharged. In comparison, a mere 51 per cent conviction would not be considered sufficient to silence doubts without eliminating them entirely as required under German law, for example.
Therefore, it seems that civil law applies a stricter standard and, consequently, it is more difficult for a claimant to convince a continental court of law than a common law court. This also means that counsel must be capable of adapting its form of reasoning to the standard of proof required in continental European litigation. The presentation of the case before a civil law judge generally demands more elaborate and detailed arguments as the lawyer must convince the judge to a viable degree of certainty. In common law proceedings on the other hand, lawyers might content themselves with the presentation of a plausible and consistent argument that will suffice, in many cases, to establish a predominant likelihood to the judge.
However, in certain civil actions where important rights are at issue, common law also requires a heightened standard of proof whereby the evidence needs to be ‘clear and convincing’ (United States) or ‘more cogent’ than usual (United Kingdom). This standard applies in cases where one party seeks to prove wilful, wrongful and unlawful acts, fraud or undue influence, or gross negligence.
When it comes to assessing the evidence, continental courts – unlike common law courts – traditionally tend to place greater weight on documentary evidence than on witnesses.
The emphasis that common law places on oral testimony is a principle originally born out of necessity. The roots of this tradition go back to the Middle Ages, when the jury system was introduced in England. At the time, many jurors, who were mostly common men, could not read or write, so everything had to be presented to the jury orally. Even written evidence was introduced to the jury by a witness who read the document out loud, which explains the importance of witness examinations prevailing today. By contrast, in the civil law tradition, the judge will be literate and will have studied law, with the consequence that written evidence did not need a preliminary introduction into the proceedings by the testimony of a live witness.
In line with this traditional approach, a court in a civil law jurisdiction, as a rule of default, will consider a document to be self-authenticating when it is submitted by a party – which is usually done well in advance of the oral hearing. Another reason why civil law judges tend to attribute a higher probative value to documents is their scepticism regarding the reliability of witness evidence, the court’s ability to correctly determine the truthfulness of a person’s statement and the risk of witness testimony being ‘tainted’ by bias. The latter aspect particularly applies if the witness is somehow connected to either of the parties. Additionally, there is the simple truth that the human memory is prone to cognitive imperfections and deception.
The common law tradition also recognises these potential flaws in witness testimonies, yet it has ventured to conquer them by employing cross-examination. The civil law system resolves this problem by placing more emphasis on other available and more ‘neutral’ sources of evidence, namely contemporary documents.
While the tendency to prefer documents over witness statements as evidence is found in every civil law country, there are quite significant differences on a national level as to the extent of this preference within continental Europe. In Belgium, for example, courts almost never admit witness evidence in commercial disputes, whereas in Germany, witness statements are quite commonly obtained, albeit they may not have a crucial role in the court’s decision-making process.
The pursuit of truth
When analysing the pursuit of truth in continental court proceedings, one needs to bear in mind the purpose of such proceedings. From a continental European judge’s point of view, his or her primary task in disputes relating to civil law claims is to resolve the dispute that is before the court. The court does not consider itself obliged and competent to determine all the relevant facts before rendering its decision. Instead, its judgment will be based on the ‘relative truth’ or ‘procedural truth’. In line with this approach is the principle of adduction of evidence that prevails in civil procedure, which means that the court will only take into account those facts of the case that have actually been presented by the parties. If a fact has not been introduced by a party, the court is barred from considering it and may, in principle, not initiate any further taking of evidence – despite the otherwise inquisitorial nature of civil law proceedings. This rule applies even if the court considers that there is more to the case than the parties have so far provided. Thus, civil courts are willing to accept that their decision might not be based on the actual truth and may thus not be ‘correct’. The continental approach is the result of a balancing of interests in which one party’s interest in obtaining all relevant facts is weighed against another party’s interest in maintaining its privacy as well as the costs accompanying a fully fledged exploration of the facts.
In a globalised and simultaneously fragmented world, attention must still be drawn to cultural differences. There remain certain practices, tendencies, preferences and values, both social and legal, that differentiate advocacy in one jurisdiction from another. Although the dividing lines between common law and civil law countries are increasingly becoming blurred in international arbitration, as participants become more experienced and sophisticated, the contrasting points of view nonetheless continue to influence advocacy with respect to the elicitation and communication of evidence and the questioning of witnesses. With the civil law background of most countries in continental Europe, parties are generally not under an obligation to disclose documents. Though some jurisdictions in continental Europe provide for requests for production of documents, whereby one party can ask the other to produce internal documents, the procedure is of very limited scope and, some may say, of little use. In any event, the procedure bears no comparison with the expansive system available under some common law jurisdictions, in particular the United States. While the IBA Rules on the Taking of Evidence in International Arbitration now embody a document production regime as an acceptable practice, it should not be overlooked that parties from civil law jurisdictions that are not familiar with an obligation to disclose have difficulty accepting the idea of being compelled to provide the opposing party with documents that are prejudicial or potentially damaging. To create a level playing field, counsel have to educate their clients early on and convince them of the importance with which the obligation to produce must be treated, as well as the benefits of complying.– Georg von Segesser, von Segesser Law Offices
Accordingly, there is less likelihood in civil law of obtaining evidence that is in the possession of the other or a third party, the key word in this regard being ‘discovery’ or ‘disclosure of documents’ or, rather, the lack thereof. This does not mean that the search for the truth has no role in civil law proceedings. For example, courts in continental Europe are prohibited from taking into account evidently false or even contradictory statements made by a party. However, obtaining all the information relevant to the case is neither required nor a top priority before rendering a decision. Thus, civil law systems have refrained from vesting the parties of civil proceedings with a broad right to seek evidence and information it does not possess. Only in limited cases may one party request the other to hand over documents that are in its possession. Under German law, for example, such a request is only successful if a party is obliged to do so under substantive law or if the opposing party has referred to a document in the proceedings as evidence without submitting it to the court. Alternatively, the court may order a party to produce documents on its own initiative if either party has made reference to a particular document. French and Italian civil procedural laws are even stricter in this regard.
Smoking guns are not a myth
Document production requests, these days sometimes resulting in Redfern Schedules of even 100 pages or more, are at the same time the bane of opposing parties and tribunals alike, but also the potential path to the ‘smoking gun’. I recall in particular a contractual case between the parastatal company of an EU Member State as claimant and a state applying for EU membership as respondent. The claimant’s counsel researched the index to the archives of the EC relating to that application and thought they had identified a document, though they were unable to examine the document itself, that might be that ‘smoking gun’. Notwithstanding repeated and ingenious efforts on the part of the respondent to avoid disclosure, the tribunal, on which I was a co-arbitrator, succeeded in compelling the respondent to disgorge the document itself. Bingo! It was a letter to the European Commission (EC) from the respondent government, in effect begging the EC not to impose a certain condition on the respondent, since (I paraphrase with poetic licence) ‘If you do that, it will put us in breach of our contract with the claimant EU Member State’s parastatal!’ The European Union had since imposed that condition, hence the respondent had confessed. So, don’t be afraid of making precisely targeted requests for production of documents. You owe it to your client, even if the process drives your opponent and the tribunal crazy with work.– Charles N Brower, Twenty Essex Chambers
In contrast to this, common law considers that the main goal of court proceedings is to determine the truth, that is the ‘absolute truth’. One reason for the difference in approaches is rooted in the tradition of jury trials in the common law system. The jurors were the adjudicators of the facts, but had no legal background. They were therefore assumed to be unable to see through the trickeries and pleadings of the lawyers appearing before them.The quest for the truth is the dominant purpose of common law proceedings and it is considered to prevail over other potential interests involved, such as a party’s right to maintain its privacy, the proportionality of the evidentiary methods and the protection of personal data. Accordingly, common law permits both parties to request the production of all relevant documents for inspection, including those that are unfavourable to the party, so as to bring all relevant evidence to light.
Cross-examination mistakes to avoid, as a civil lawyer
Under the inquisitorial system applied in most civil law countries, counsel lack the opportunity to develop skills for conducting an efficient and professionally structured cross-examination. So, what do they do? Either they try to go by the book and concentrate on closed propositions limiting the witness to answering ‘yes’ or ‘no’, or they ask the witness open-ended questions that allow him or her to comment at random on whatever they consider to be important from their perspective. Neither of those alternatives really produce what the tribunal would like to hear from the witnesses. While the style of the American litigation lawyer used to advocate before lay juries in the United States may be considered by the tribunal as too aggressive and long-winded, too limited a focus on getting the witness to respond with ‘yes’ or ‘no’ may also not be very helpful. Arbitrators, especially those from a background with an inquisitorial approach, are interested in why and when a witness did what he or she did. In addition, in civil law jurisdictions, written evidence is often considered more reliable than oral evidence. However, this does not require counsel to ask a witness to read a document or to confirm that what has been read to him or her by counsel is correct. Of course, certain questions need an introduction or require a witness to be guided through a number of documents, but very often arbitrators and witnesses are taken through a string of documentary evidence that could more efficiently be summarised or incorporated in a short and straight question.– Georg von Segesser, von Segesser Law Offices
In international arbitration, this practice often leads to lengthy and cost-intensive proceedings. It is not uncommon for proceedings on the issue of document production alone to become a time-consuming intermediate dispute. The procedure is often very labour intensive for both the submitting and the receiving party that has to analyse the documents. It is obvious that there is a tension between these procedures and the aim to conduct arbitral proceedings quickly and efficiently.
Advocacy in international arbitration in continental Europe
One of the crucial advantages of arbitration compared to state court proceedings is that it provides the parties with a significant degree of autonomy and flexibility in resolving their disputes. Arbitration allows parties and arbitral tribunals to tailor the procedure to the specific situation, the parties’ expectations and the individual circumstances of the dispute. In fact, arbitration allows the parties to choose and apply the most suitable features from both the civil and the common law systems for each particular arbitration. An international arbitration between a German or a French party on the one hand and a party from the Netherlands or Switzerland on the other may look quite different from an arbitration between a US and an English party in respect of the above-mentioned features. The parties, often with the arbitral tribunal, can tailor and adapt the procedure to the individual expectations and needs of the particular dispute. Assuming that there is one ‘gold standard’ for how an international arbitration should always and without exception be conducted would deprive arbitration of one of its main advantages – its flexibility and adaptability.
Advice for civil lawyers on how to re-direct
Civil lawyers are increasingly used to the practice of interrogating witnesses in international arbitration. However, less experienced counsel face huge difficulties with re-examination. Strangely enough, many of them do not read carefully the instructions given by the arbitrators in this regard. One of them is that re-examination is limited to issues raised in cross-examination. Too many counsel use it as an opportunity to ask questions that they could not put in direct examination because not enough time was available or they just forgot.
It may work if the opposing counsel does not pay attention, since the arbitrators will not always intervene. Many arbitrators think that their role is not to help incompetent counsel. But most counsel are good and experienced, and will make a justified objection that will be sustained. The result is that the witness is embarrassed, loses the confidence that he or she was recovering after a damaging cross-examination and, in any case, precious time has been wasted when a chess-clock system is applied to the time sharing.
Don’t be De Gaulle
To conduct an efficient re-direct examination, counsel should not initiate a line of questions without mentioning that the issue was discussed during the cross-examination, provided it is true. But no counsel should ever try to imitate General de Gaulle in his press conferences, when, to make an important statement, he would simply pretend he had been asked a completely different question and give the answer he wanted to that.
Use the transcript
When the cross-examination has lasted many hours and the issue is very discrete, counsel should be able to refer to precise lines of the transcript in case the opposing counsel suggests that it never asked questions relating to that issue; some counsel do that just to obstruct the re-direct examination, counting on the passivity or the poor memory of the arbitrators. That is a dangerous game because a good memory is one of the qualities of a good arbitrator. Yet, it is taking a chance to overestimate it and nothing is easier than asking a junior associate to take note of the time when embarrassing or imprecise answers are given by the witness during the cross-examination.
Not to ask leading questions is another rule of the game that civil lawyers have difficulty assimilating. Although it applies to direct examination as well, it is in re-direct that the rule is often breached because re-direct cannot be prepared in advance. A question that contains its answer, such as ‘When did you inform the seller of the defect of the good?’ to obtain evidence that the seller was duly informed – a fact that the witness had forgotten in cross-examination – is not only impermissible, it is inefficient, as the arbitrators will not give much weight to an answer that was put in the witness’s mouth. This explains why experienced counsel sometimes refrain from objecting to leading questions.– Yves Derains, Derains & Gharavi
Because of the freedom granted to the parties, a key issue in every arbitration is the establishment of the procedure for the individual case. While the institutional and ad hoc rules provide the framework, they are often deliberately silent on many procedural aspects. Thus, the needs and expectations of the parties decisively influence the structure of any individual arbitration. These needs and expectations should be determined as soon as possible, at the latest after the constitution of the arbitral tribunal. In practice, this is often done by way of a case management conference where the parties can communicate and exchange their ideas with each other and the tribunal.
As has been mentioned, there is no uniform or gold standard when conducting international arbitration proceedings. This is because whenever parties come from different jurisdictions, their expectations and experiences will differ; a fact that can be accommodated by adapting the arbitral proceedings accordingly. This applies in an arbitration between common law parties, as well as in a dispute between two parties with a civil law background. By way of example, the International Bar Association’s Rules on the Taking of Evidence in International Arbitration (the IBA Rules) have rightly become widely accepted and used in international arbitration. They represent a compromise and an attempt to bridge the gap between the differences in civil law and common law jurisdictions so as to prepare a level playing field for the parties in a dispute that are from these different legal backgrounds. While sometimes the parties to an arbitration agree on the binding applicability of the IBA Rules, they are more frequently agreed upon as guidelines for the taking of evidence in an international arbitration, or in disputes between parties from civil law jurisdictions.
However, there is no reason to apply them blindly to any international arbitration. To a large extent, it is fair to say that the IBA Rules introduce common law elements into an arbitration. It may well be that, in a dispute between civil law parties, the parties happily choose to rely on the IBA Rules because they are familiar with them or have a particular interest, for example, in document production by the respective other party.
Additionally, as of December 2018, the Rules on the Efficient Conduct of Proceedings in International Arbitration (the Prague Rules) provide a new set of rules for the taking of evidence in international arbitration. The primary goal of the Prague Rules is to encourage arbitral tribunals to take greater control of proceedings and to make use of the powers vested in them with the aim of reducing the time and cost of an arbitration. The proactive role of the tribunal envisaged by the Prague Rules reflects the already described approach applied in civil law state court proceedings as opposed to the approach taken in common law countries.
According to the principle of party autonomy, the parties to an arbitration are free to agree on the procedure that best represents their interests and is suitable for the specific case at hand. Especially for parties with a civil law background who seek a more active tribunal, the Prague Rules may constitute an alternative to the IBA Rules.
Another frequent feature in arbitral proceedings between civil law parties is written witness statements, which are helpful in preparation of the taking of evidence. Further, the parties in such proceedings may agree, with regard to the taking of witness evidence, that, instead of the tribunal, the parties are to be in the driving seat.
However, these principles should not be applied without due consideration. It is a rather essential part of the advocacy skills of any arbitration practitioner, in particular of those with a civil law background, to be aware of the differences between, and the pros and cons of, the different systems. It is also essential to be fully familiar with the skills required under the different systems (including the proper conduct of document production, the preparation of written witness statements and, last but not least, the examination of witnesses and experts, both civil and common law-style) as this is the key to tailoring the individual proceedings to the expectations and interests of the party represented while taking into account the individual circumstances of the case.
There is no one-size-fits-all format for international arbitration proceedings in a dispute with parties from different jurisdictions. On the contrary, it is one of the crucial advantages of international arbitration that it is possible to adapt the conduct of the proceedings to the parties’ needs and expectations. In terms of advocacy skills, it is therefore essential that legal counsel and arbitrators alike are able to adapt proceedings to the individual case at hand, which may well include a combination of elements from both civil law and common law, if suitable in the individual case. In other words, a skilled advocate in international arbitration is one who can engage in and efficiently use the procedural mechanisms of both worlds. Procedural flexibility is one of international arbitration’s most attractive features. Accordingly, versatility is one of the most important advocacy skills for practitioners in this field.
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