This summer, I spent some time shadowing judges at the Tribunale di Bologna in Italy, and saw at first hand how they manage civil claims. The court handles complex high-value disputes, and individual judges deal with a wide range of legal actions.
There are obvious linguistic and juridical differences between Bologna and an English court when it comes to litigation. However, the procedural, evidential and cultural features of the Italian legal process are also important, and this article takes a brief look at these elements.
When is a hearing not a hearing?
The Italian term "udienza" is often translated as "hearing". Given the relative lack of oral submissions, however, the alternative translation "audience" might be more appropriate. One hearing I saw consisted of the lawyers waiting around while the judge read the court file, outlined her proposed order and then invited agreement. Ten minutes of reading, followed by two minutes of discussion, and the audience with the judge was over.
Hearings are conducted in a relaxed and informal atmosphere, with sweets being passed around the courtroom, frequent interruptions and (if these are lengthy breaks in the hearing) the blatant use of mobile phones.
Body of evidence
One of the judge’s functions in Italian proceedings is to decide in advance the questions that he will put to factual witnesses in oral examination. Accordingly, the parties’ lawyers file schedules, called "capitoli di prova", that list the questions or issues they want each witness to address. In English proceedings, such questions would form the basis of examinationin- chief and cross-examination.
I watched a judge deciding which questions would be permitted in an injury claim. She described the ones she rejected as unnecessary to resolve the disputed issues but gave no detailed reasons for disallowing individual questions. There was little opportunity for the parties’ lawyers to challenge her thinking.
Technically or medically complex matters are typically referred by the judge to an independent expert, who then investigates the issues and reports back to the judge with their conclusions (see generally "Who’s to say who’s an expert – Part 4").
The Italian procedural code allows the judge to reject an expert’s evaluation. Without exception, however, the judges told me that dismissing an expert’s evidence was almost out of the question. They saw themselves as legal specialists, without the skills needed to evaluate evidence given by an expert in another discipline. Accordingly, issues regarding the proper use and interpretation of data in experts’ reports (see further "A cracking case") are unlikely ever to arise in Italian proceedings.
There is no general disclosure requirement in Italy. A party will usually only provide limited documents supporting their case. Combined with the emphasis on oral witness evidence and the use of court-appointed experts, this dramatically limits the amount of documentation put before a judge. The files I saw for cases awaiting final judgment were modest in size: the trial bundles for equivalent English disputes would have been at least 10 times larger.
ADR and judgment
Compulsory mediation at the pre-action stage was introduced for certain types of dispute in March 2011 and extended in March 2012. However, the backlog of cases in Italy is still a concern, with disputes taking between four and eight years to resolve at first instance.
Only prospective claimants are obliged to attempt mediation. Prospective defendants have no such obligation and many simply fail to attend on the fixed date. Around a third of disputes are mediated pre-action and, even then, less than 50 per cent are successful.
The judges in Bologna are aware that, despite recent reforms, there is room for improvement. One senior judge expressed enthusiastic support for the Woolf reforms, with their emphasis on pre-action dialogue, streamlined proceedings and alternative dispute resolution. Italian courts can encourage parties to explore settlement, and this particular judge strongly recommended negotiation to the parties involved in an intellectual property dispute, saying he would expect an update at the next hearing. Across Italy, however, only approximately three per cent of mediations start as a result of judicial encouragement.
Judgments are short in comparison to their English counterparts, with little analysis of the weight attributed to individual witnesses or documents. One judge estimated that he wrote approximately 200 final judgments each year – several each working week. A High Court judge, in contrast, is likely to write less than 20 per year.
Several judges spoke admiringly of the pragmatic approach of the English courts. However, they had no wish to adopt neither the formality of English hearings nor the onerous – burden of disclosure obligations.
They realised that the judiciary must play its part in developing the existing system. Judges have a wide discretion when it comes to awarding costs at the end of a case and, in Bologna, willingly penalised parties who made little or no attempt to explore settlement.
Ultimately, though, only time will tell whether judges and lawyers across Italy can improve the efficiency of case management and the uptake of ADR.