Judicature Vol

VOLUME 100 NUMBER 2 SUMMER 2016 58 JUDICATURE VOL. 100 NO. 2

A REPORT ON THE ELI CIVIL PROCEDURE PROJECT

Developing CIVIL PROCEDURE RULES FOR EUROPEAN COURTS

BY GEOFFREY C. HAZARD JR.

is the European Law Institute. Its Secretariat is based in Vienna, Austria; its members ELIinclude judges, lawyers, law professors, ministry of justice officials, and law firms from the European Community. It is substantially modeled on the American Law Institute, but its wider range of membership, particularly government lawyers ex officio, means that ELI has some- thing of a quasi-governmental standing. ELI is currently engaged in a number of interesting law reform projects in such areas as consumer protection law, insol- vency law, and contract law. The aim is to formulate laws and codes that could be adopted in member states, thus contribut- ing to the harmonization of law among the European countries. JUDICATURE 59

Among ELI’s projects is developing a we obtained approval from ALI to propose a UNIDROIT appointed a parallel set of rules, or code, of civil procedure. The joint venture to UNIDROIT. working group that included specialists project has been underway for about three UNIDROIT engaged Prof. Rolf Sturner from England, France, Argentina, and years and has made substantial progress. At of Freiburg University in Germany to eval- Japan. Notable among the members of this stage, its conclusions are only tentative uate the proposal. Sturner’s career involved the working group were Justice Aida and its specific provisions will be reconsid- being a judge as well as a distinguished Kemelmayer de Carlucci, an appellate ered in light of the whole set. professor of law. Sturner had done import- judge in Argentina, Prof. Neil Andrews Among the important issues are — no ant work in comparative procedure, includ- of Cambridge University in the U.K., and surprise to U.S. law people — jurisdiction ing a project with Peter Murray of Harvard Prof. Frederique Ferrand of Jean Moulin over foreign parties, notice requirements, comparing German civil procedure with its University in Lyon, France. Ferrand is pleading, and joinder of claims. Most sensi- U.S. counterpart. Sturner made a positive completely versed not only in French law tive — again no surprise — is the question evaluation of the proposed project and later but also in German civil procedure. of pretrial discovery, including depositions joined the project team as a Co-Reporter. The Transnational Rules project was not and production of documents. Indeed, the Also joining the team as Associate Reporter targeted at any particular audience, thereby subject is so sensitive that in the ELI proj- was Prof. Antonio Gidi, who was trained to avoid people who thought the idea of ect the process is called “access to evidence” in Brazil’s civil-law system and teaches integrating civil and common-law systems rather than “discovery.” (The matter of comparative law in the U.S. was a pipedream. The discussions in both discovery/access is further discussed below.) The Transnational Rules project had ALI and UNIDROIT groups “proceeded an ALI advisory committee that included without the elaborate introductions often THE TRANSNATIONAL RULES judges, lawyers, and legal academics. typical in international deliberations. The ELI Civil Procedure project has The legal academics notably included On the contrary, discussion was simple, had a head start by reason of an earlier Professors Mary Kay Kane of the University direct, professional, and sympathetic.” project, the Principles of Transnational of California, Hastings, a coauthor of a ALI/UNIDROIT, supra, at p. xliv. During Procedure and accompanying rules. leading treatise on U.S. federal procedure, the drafting process, working texts were See ALI/UNIDROIT Principles of and Edward Cooper of the University disseminated to various legal scholars, some Transnational Civil Procedure of Michigan, who was Reporter for the of whom expressed the usual doubts. At the (Cambridge U. Press, 2006). The Principles Civil Rules subcommittee of the Standing conclusion of the drafting stage, in both and Rules have been taken by ELI as the Committee on Practice and Procedure of the English and French, the project conducted framework for its project. Judicial Conference of the United States. roadshows around the world. Those attend- The Transnational Rules project ing these sessions included legal scholars, was cosponsored by the American judges, and practitioners from about Law Institute (ALI) and UNIDROIT. 15 countries, including China, Russia, “UNIDROIT” is the French acronym Brazil, and Australia. for the International Institute for the AMONG THE IMPORTANT The Transnational Rules project was Unification of Private Law. UNIDROIT completed in 2004. In the intervening was established in 1923 as a part of the “ISSUES ARE JURISDICTION years the Principles and Rules attracted League of Nations apparatus and has its attention primarily in academic circles headquarters in Rome. It has a long and OVER FOREIGN PARTIES, and some in international arbitration. positive provenance although a relatively See Bibliography, in ALI/UNIDROIT, modest record in model legislation. supra, at pp. 157 et seq. No national The Transnational Rules project NOTICE REQUIREMENTS, regime adopted them. However, the began as an idea developed by Prof. transnational formulations were widely Michele Taruffo, an Italian law profes- PLEADING, and JOINDER available and had attracted no substantial sor specializing in comparative law, negative attention. and myself, then winding down my OF CLAIMS. MOST The transnational texts have proved term as ALI Director. Taruffo, whose very useful in the ELI project. Several background is in civil law, and I, with SENSITIVE IS THE QUESTION members of the transnational team are a background in common law, had now engaged in the ELI enterprise, done several studies together. This led of PRETRIAL DISCOVERY, including Professors Sturner, Andrews, us to believe that, contrary to conven- and Ferrand. tional legal opinion, the civil law and INCLUDING DEPOSITIONS common-law systems could be inte- DIFFERENCES AND SIMILARITIES grated. We spent a year working together and PRODUCTION OF It is worth reviewing the differences to develop a skeletal version of such a and similarities between, on the one system. Armed with resulting confidence, DOCUMENTS. hand, the Transnational Rules and 4

© 2016 JUDICATURE at Duke University School of Law. All rights reserved. www.law.duke.edu/judicature 60 VOL. 100 NO. 2 the emergent ELI formulations, and, on common-law systems. This distinction ally to maintain the secrecy of confidences the other hand, the counterpart rules of is becoming more formal than actual. obtained in the course of representation.” civil-law systems and the American model In England, the judges now have very Rule 27.1 provides that “evidence may epitomized in the Federal Rules of Civil substantial authority to manage civil not be elicited in violation of the legal- Procedure (FRCP). Notable differences are: cases, particularly in complex litigation. profession privilege of confidentiality under jury trial, the roles of judges and lawyers, The same is true in the U.S. federal forum law [or] confidentiality of communi- and the scope of appellate review. system, as expressed in FRCP 16 (pretrial cations in settlement negotiations.” No European civil procedural system conferences) and FRCP 26 (discovery). uses juries, although some of them have lay Many state systems have similar rules and REGARDING THE SCOPE OF APPEL- arbiters in labor court procedure. Although some also have specialized courts with LATE REVIEW, the difference remains jury trial in civil cases originated in “managerial judges” to handle commer- at least formally significant. In the civil England, English courts over a century ago cial litigation. systems an appellate court has plenary ceased using juries except in a very limited The Transnational Rules address the authority to review an inferior court’s category of cases. The Transnational Rules roles of both judges and lawyers. Rule 10.1 judgment, not only as to issues of law but proceed on the premise that they can work provides: also as to issues of fact. The underlying equally well under a jury system. Rule 23.2 theory is that the civil code determines of the Transnational Rules requires: A judge . . . must not participate if the substantive basis of the case and there are reasonable grounds to doubt that the higher court judges have more The judgment should be accompanied [his/her] impartiality. authoritative understanding of the code’s by a reasoned explanation of the essen- provisions. The underlying civil-law tial factual, legal, and evidentiary basis Rules 10.2 and 10.3 go on to provide theory regarding issues of fact tradi- of the decision. that “A party must have the right to make tionally has been that evidence is a legal reasonable challenge of the impartiality of science and that the strength of an item of The accompanying comment states that a judge” and that such a challenge must be evidence is governed by a set of rules. For compliance with this rule can be achieved heard by or appealable to a different judge. example, the probative value of a witness’s by reference to “the transcript of the Principles 4.1 and 4.2 provide that “a testimony depends on his or her position instructions to the jury.” party [be able] to engage a lawyer of the in society — whether a professional or party’s choice” and that “a lawyer’s profes- merely a worker. These evidentiary rules, REGARDING THE ROLE OF JUDGES sional independence should be respected.” like the substantive law of the civil code, AND LAWYERS, a distinction is The comment to these provisions states are therefore more authoritatively under- traditionally drawn between “inquisito- that “lawyers are expected to advocate stood by higher level judges. rial” civil-law systems and “adversarial” the interests of their clients and gener- In common-law systems the appellate court reviews for “error” in jury-tried cases and “abuse of discretion” in most judge- tried cases. The deference to jury findings derives from the constitutional basis of WHAT IS THE EFFECT OF A JUDGMENT IN the jury trial itself. The deference to trial court findings in judge-tried cases reflects “WHICH ONLY the UNITARY SOVEREIGNTY recognition that the trial judge has had opportunity to see and hear the witnesses. CLAIM, CIVIL CODE OR COMMON LAW, It would appear that the civil-law system makes appeals relatively attractive; I have HAD BEEN ASSERTED? DOES a heard some lawyers in civil systems say that the proceeding in the first-instance TRANS-EUROPEAN LEGAL CLAIM court is actually a preliminary hearing. Moreover, common-law systems include SURVIVE? OR SHOULD A the concept of “harmless error,” so that establishing that the trial court commit- COUNTERPART OF the U.S. RULE ted a mistake does not necessarily make for a successful appeal. OF CLAIM PRECLUSION APPLY? In light of these complications, the comment to Rule 33 states that in general “appellate review should be through the procedures available in the court system of the forum.”

Some differences between civil-law and origins, the United Kingdom of England and to join multiple claims, and may common-law systems are of low visibility. and Wales (thus not including Scotland) also affect joinder of parties. Accordingly, In the matter of notice, for example, it was also has a unitary sovereignty. Transnational Rule 12.4 provides that “a interesting to learn that in Germany and In contrast, the American federal party who is justifiably uncertain of a fact perhaps some other European countries, system involves dual sovereignty: A or legal grounds may make statements notice to defendants is ordinarily given supreme but subject-matter limited about them in the alternative.” electronically, whereas in our systems the national authority, founded in the There is a correlative res judicata old-fashioned manual service of summons Constitution, and a residual plenary question: What is the effect of a judgment is the default rule and is still used in most authority in the states, formally recog- in which only the unitary sovereignty cases. The Transnational Rules recognize nized in the Tenth Amendment. Among claim, civil code or common law, had been that there are differences in notice proce- other things, the U.S. dual-sovereignty asserted? Does a trans-European legal claim dure and adopt the forum’s procedure system has resulted in a major law-mak- survive? Or should a counterpart of the subject to specified requirements. Rule ing role for the judiciary, centered in the U.S. rule of claim preclusion apply? Many 7.1 provides: Supreme Court. It is generally the courts European jurists and lawyers have been that authoritatively determine the bound- puzzled by these possibilities, given their A party must be given formal notice in aries between national and state authority. professional acculturation in systems of accordance with forum law by means Because the boundaries have changed unitary national sovereignty. The subject of reasonably likely to be effective. over time and have always been gray areas res judicata is outside the scope of typical rather than strict lines, American law on procedural codes. At any rate, the U.S. rule Rule 7.2 goes on to require that notice the subject has always been complicated. is that if the two claims arose out of the be in the target’s language and include In a dual-sovereignty system, advocates same event or transaction, then gener- the statement of claim and specify the on both sides in a civil case must consider ally both must be asserted in the original time to respond. whether both federal and state substantive action, on pain of preclusion in subsequent A more visible difference is that in law may afford at least arguable rights and litigation. See Restatement (Second) of many civil-law systems, and in English defenses. For example, a claim of invasion Judgments § 24. high courts, the advocates wear black robes, of privacy may be available under the U.S. signifying a judicious role similar to the Constitution and under a state consti- JURY, DISCOVERY AND ROLES OF judicial role. The Transnational Rules leave tution or statute. So also law regulating LAWYER AND JUDGES that subject alone. the environment may emanate from both The differences between European and federal and state statutes. Attention may American systems are more evident in the JOINDER, PLEADING, RES also be required to differences in proce- procedure for determining facts; in “access JUDICATA dure in federal and state courts where to evidence” a.k.a “discovery”; and in the Three other low-visibility differences are those courts have concurrent jurisdiction. roles of lawyers and judges. These differ- interrelated: the joinder of claims in a civil American lawyers and judges therefore ences are correlated with each other. action; the pleading of multiple theories of have long functioned in a very compli- liability; and the scope of res judicata upon cated legal system. Jury Trial conclusion of a civil action. Understanding What has been emerging in Europe The basic American procedure for determin- these issues requires reference to the under- over recent decades is a similar if narrower ing facts is of course jury trial. Jury trial is lying substantive law in contemporary dual sovereignty. This is a product of a a right largely determined by constitutional civil-law systems. trans-European body of higher “constitu- provisions — the Seventh Amendment in The substantive law in civil-law tional” law, propounded by the courts in the federal system and similar provisions systems historically is expressed in interpreting basic European treaties. As in state constitutions. Moreover, the right comprehensive civil codes, patterned on this body of law has gradually accumu- to jury trial has wide popular support, such the Napoleonic Code that was adopted in lated, it creates increasing possibilities that it is virtually impossible for it to be France at the turn of the 19th Century. that a given event or transaction in a repealed. In contrast, civil-law systems have The civil-law theory is that law is exclu- European system can be subject to both never had general use of juries. As noted sively expressed in the codes, and that the traditional civil code or common earlier, England, although historically a other legal sources, including judicial law (in England) and the limited but common-law jurisdiction, has long since opinions, are on a lesser footing. supreme reach of trans-European law. discarded the jury role in all but narrow These possibilities invite claimants to categories of civil litigation. UNITARY OR DUAL SOVEREIGNTY propound multiple claims based on multi- The practical importance of jury trial is This civil-law premise is based on the ple substantive theories; defendants have not that there are so many jury trials — the unitary sovereignty that is established in similar leeway in affirmative defenses. “vanishing jury” is much talked about. In the national state in which a civil code has These possibilities require recognition most American jurisdictions jury trials are been adopted. From different historical of a right to plead alternative theories actually held in less than five percent of 4

© 2016 JUDICATURE at Duke University School of Law. All rights reserved. www.law.duke.edu/judicature 62 VOL. 100 NO. 2 civil cases filed. Accordingly, it should be The advocate’s role also includes a access to evidence, particularly in litigation recognized that in American civil litigation discerning assessment of the quality of the between individuals and organizations. the significance of jury trial is rather the evidence. This too is furthered by pretrial A type of “discovery” is the rule govern- prospect of jury trial that hovers over most discovery. For example, an important ing pleading. American lawyers are well civil cases. The possibility of jury trial is question is whether, in the estimate of the aware of the U.S. Supreme Court’s decisions especially menacing to corporate defen- advocates for the parties, a key witness is in Bell Atlantic Corp. v. Twombly, 550 U.S. dants whose conduct could be considered as reasonably articulate and can hold up under 544 (2007), and Ashcroft v. Iqbal, 556 U.S. overreach according to popular concepts of cross examination at trial. Discovery depo- 662 (2009). These decisions tightened the right and wrong. sitions afford a preview of that issue. In the requirements of FRCP 8, if in uncertain present era of electronic communication, degree, but they clearly require specificity Broad Discovery a decisive issue can be whether key email in key factual allegations. The broad discovery afforded in FRCP documents — damaging or protective — The pleading requirements in the 26–37, and its state law counterparts, is are available. Pretrial discovery can resolve Transnational Rules entail substantially justified in important part as a means of that issue. greater “discovery.” Rule 12.1 provides: assembling evidence before trial for even- Discovery depositions and documents tual presentation to a jury. Any particular discovery ordinarily are almost entirely The plaintiff must state the facts on which jury is assembled ad hoc, sits through a the responsibility of the lawyers. FRCP the claim is based, [and] describe the single continuous trial session, and then is 16 confers broad authority on the judge evidence to support those statements . . . dissolved. It is therefore generally imprac- to provide case management. In practice, tical to have a jury function in sequential however, most of the scheduling and Rule 12.3 provides: sessions. Accordingly, all evidence for trial calendaring is done by agreements of The statement of facts must, so far as must be assembled before trial. Before the lawyers that are ratified in orders by reasonably practicable, set forth detail as modern pretrial discovery exemplified in the judges. Indeed, the broad discovery to time, place, participants, and events. the FRCP, the adversaries typically had enabled by FRCP 26–37 is possible only to guess what the opposing party’s proof because it is conducted primarily by the Rule 13.4 imposes the same require- would be. Under modern discovery, that advocates. Under typical judicial staffing ments on defendants in an answer, affirma- proof can be fully exposed before trial. in the American system, caseloads are such tive defense, and counterclaim. that the judges do not have time, or incli- The Transnational Rules make carefully Roles of Judges and Lawyers nation, to pursue extended case manage- guarded provisions for further disclosure Theoretically, assembly of the evidence ment. There has been growing pressure of evidence, with emphasis on the role of could be assigned to judges. However, this for greater judicial involvement, but in the judge. would be inconsistent with the fundamen- practice substantial judicial involvement Rules 21–21.1.2 require that a party tal proposition that a litigant is entitled typically will focus on complex cases. “identify to the court and other parties to assistance of a lawyer. Proper legal In any event, broad pretrial discov- the evidence on which the party intends assistance in the common-law tradition ery of course is not an unmixed blessing. to rely, including . . . copies of documents includes fashioning legal claims and Wide-ranging advocate-driven discovery . . . [and] summaries of expected testimony pursuing evidence relevant to those claims. is notoriously considered a curse by many of witnesses, including experts.” Rule Discovery obtained by the advocates serves in the legal fraternity. Efforts continue 21.2 requires updating the disclosures if these purposes. to devise practical limitations, such as additional items are to be used. Rule 21.3 conferring broad powers on the judge to addresses a matter that is very sensitive in Expert Testimony limit discovery, as in FRCP 26(b)(2), and most European systems: “A lawyer for a Expert testimony is helpful and often imposing tight limits on the number and party may have a voluntary interview with essential in much modern litigation. An duration of depositions, as in many state a potential nonparty witness. The inter- important issue is selection of the experts. civil procedure rules. The discovery system view may be on reasonable notice to other In most common-law jurisdictions, and also generates the need for advocates who parties, who may be permitted to attend in the U.S., each party may select its can maintain a balance between being civil the interview.” experts, taking into account their stature and being zealous. Rule 22.1 gives the court broad author- in the field, their effectiveness as a witness, Broad discovery is regarded with horror ity to order additional disclosure: and their availability. In most civil-law by most European lawyers, judges, and systems, engaging experts is in the court’s government officials. Their conception of A party may request the court to discretion and the selection is up to the U.S. discovery is anecdotal, responsive to order production by any person of any judge. Typically, when expert testimony is aggressive efforts by American lawyers to evidentiary matter, not protected by regarded as necessary, the judge will confer obtain evidence from European sources. At confidentiality or privilege, that is with a convenient university or specialized the same time, sober assessments of access to relevant to the case and that may be source to identify a suitable expert. justice recognize that there is often unequal admissible, including . . . documents

. . . persons having knowledge of a matter in issue . . . [and] the report of BROAD DISCOVERY IS REGARDED any expert that another party intends to present.” “with HORROR BY MOST EUROPEAN The foregoing authority would empower LAWYERS, JUDGES, and GOVERNMENT a court to order pretrial disclosure virtually as broad as the U.S. rules in FRCP 26–37. OFFICIALS. THEIR CONCEPTION of Given the European tradition, however, it is quite unlikely that any such order would U.S. DISCOVERY IS ANECDOTAL, be issued or, if issued, sustained on appeal. RESPONSIVE TO AGGRESSIVE Pretrial Motions All legal systems provide for activities prior to final hearing. In civil-law systems, EFFORTS BY AMERICAN LAWYERS cases usually proceed in a sequence of short hearings. These hearings can address TO OBTAIN EVIDENCE FROM preliminary objections, such as a challenge to jurisdiction, or issues on the merits, or EUROPEAN SOURCES. consideration of evidence. In common- law systems similar sessions are called pretrial hearings, and the matters typically are addressed through motions. Pretrial • “order [a] separate hearing of one or most important pretrial motion and the motions can address procedural matters, more issues” (Rule 18.3.2) most important event in civil litigation such as scheduling of depositions, and • “make decisions concerning admissi- except trial itself. substantive matters. bility and exclusion of evidence” (Rule The prospect of jury trial is the driving The classic substantive motion is the 18.3.4) force in motions for, and in resistance to, motion to dismiss, originally called the • “order any person subject to the court’s summary judgment. The essential issue general demurrer in common-law systems. authority to produce documents or posed by the motion is whether there is A motion to dismiss addresses the text of other evidence” (Rule 18.3.5) enough admissible evidence to send the the complaint (or an affirmative defense), case to a jury. If there is not such evidence and contends that, even if the allegations Summary Judgment in the judge’s estimate, then according are eventually proved through evidence, In combination the foregoing powers to FRCP 56 there should be a “judgment they do not constitute a valid basis for authorize what is known in common-law according to law” for the moving party. The a claim. But the demurrer or motion to procedure as the motion for summary judg- procedure builds on the long-established rule dismiss does not address potential evidence. ment. That motion is key in common-law concerning a motion for a directed verdict. Accordingly, in classic common law, any systems, particularly in the U.S. with its That motion, made a trial, authorizes the examination of evidence had to await trial. right of jury trial. judge to preempt a jury verdict if the judge Under modern procedure the court The motion for summary judgment determines that the evidence is insufficient has comprehensive authority to deal with was invented in late 19th-century English to permit the jury to make a reasonable deci- matters prior to plenary trial. American procedure. It allowed a motion to dismiss sion against the party making the motion. lawyers are familiar with FRCP 16, not only to address an opposed pleading The motion for summary judgment governing pretrial procedure, and Rule but also to be supported by evidence, advances the issue of sufficiency of evidence 26 governing discovery in particular. particularly relevant documents and affida- to the pretrial stage. Many lawyers and law Transnational Rules 18–18.7, entitled vits by witnesses. Originally the summary teachers consider that the combination of “Case Management,” require the court to judgment motion could be brought only FRCP 26–37 (discovery) and 56 (summary “assume active management of the proceed- in suits to collect on promissory notes. judgment) is what most modern contested ing in all stages of the litigation.” To do so, Over the years the motion was adopted cases are about. To be sure, not all of the 95 a judge may: in the U.S. and its scope enlarged. In the percent or so of civil cases resolved without Federal Rules of Civil Procedure adopted trial are determined by summary judgment. • set “a planning conference early in the in 1938 the motion was made available in Indeed probably less than half of those cases proceeding” (Rule 18.2) any kind of case. It is now officially called have involved a summary judgment motion; • “suggest amendment of the pleadings” a motion for judgment as a matter of law, the available statistics are not refined enough (Rule 18.3.1) but in practice it is still called the motion to say. Nevertheless, a judge’s decision on a for summary judgment. It has become the summary judgment motion can grant it in 4 © 2016 JUDICATURE at Duke University School of Law. All rights reserved. www.law.duke.edu/judicature 64 VOL. 100 NO. 2 part, overrule it with skeptical comment, • Interlocutory procedures for secur- • Appellate review should be conducted or otherwise express an opinion about the ing an eventual judgment, such as according to the forum’s regular appel- evidence. The lawyers will pay close atten- attachment, should be according to the late procedure. tion and adjust their assessment of settle- forum’s rules. ment possibilities. • The first-instance court should be The European Law Institute is proceed- The procedure involved in summary active in managing the litigation. ing in light of these proposals. Its work has judgment is functionally similar to the • Joinder of claims and parties should only begun and will culminate in its own procedure in a civil-law sequence of court be liberally allowed. Attention should determinations. However, it is a reason- determinations: First, statements of claim be paid to the correlative rule of res able forecast that the final product will be in the pleadings; second, assembly of judicata. substantially similar to the Transnational evidence, through discovery (common law) • The parties should append to their Principles and Rules. or directions of the court (civil law); third, pleadings copies of documents and decision short of final plenary hearing. sworn declarations of witnesses they expect to rely on. THE TRANSNATIONAL RULES • Limited discovery should be afforded, GEOFFREY C. The key provisions in the Transnational broader than typical European systems HAZARD, JR., Principles and Rules of Civil Procedure are: but more limited than in the U.S. is Professor of • The parties should be allowed to pres- Law Emeritus at • Notice to a defendant should be ent expert witnesses that they engage, the University of according to the regular procedure of rather than being limited to experts California, Hastings the first-instance court, but if defen- appointed by the court. College of the Law, dant resides elsewhere then additional • The finder of fact should give a written and Director Emeritus notice would be appropriate. explanation of its determination. of the American Law Institute.