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Damaska:

19th century Civil and Common Law:

The continental civil procedure is based on the French code de Procedure civile of 1806 19th century - Civil case was regarded as an instrument for the resolution of controversies and

was up to the litigants to settle and withdraw the case at any time.

o The litigants could even choose legal framework on which the lawsuit was to beconsidered

o They brought witnesses and facts and the judge did not have power to bringevidence/witnesses on their own initiative

o Therefore, the litigants were the ones who controlled the procedural action Therefore, continental civil law was mostly a judicial enquiry into facts of the case while criminal

judges were researchers for the truth themselves.

There were problems with fact gathering due to Anyone could refuse to testify Parties could not surrender if they wanted documents in their possession to the others Judge could not question if facts that were put forward to him actually existed

Lawyers relied mostly on information given to them by their client However, parties had very powerful divides to compel each other

Contrasts between common law and civil law

The common law litigation was divided in two stages while the civil law counterpart did not Common law prefers in-court testimony (orality) while civil law prefers documentary evidence

(text)

Common law focused on what facts were inputted while civil law focused more on how thesefacts were interpreted

Civil law had hierarchally- organized appellate courts (unitary courts with professional judges)while common law had a single level of adjudication (divided courts of judge and jury)

Since common law relied more on orality, the case takes a series of court sessions while the civillaw preferred a number of discrete hearings

Discretionary decision-making was less acceptable in the continent since they could appealanyways and they didnt want to give the lower courts so much powers

Since common law do not have hierarchy of court powers, they could assign discretion todecisions of the court

Continental systems : party-controlled procedure in hierarchical-bureaucratic apparatus Common law system: party controlled but more egalitarian and less bureaucratic system

Overview of subsequent changes:

Party control over law suits subsequently weakened everywhere which resulted in the need forcivil procedure to prevent misuse of the litigants or their lawyers

Civil law : The episodic style of litigation was too long so provisions were enacted so lawsuits aredecided in two hearings +appeals were increasingly limited due to time delay - reform

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Common law: reform: to make sure judge gets as much facts as possible, a pre-trial fact-findingsystem was implemented (asking litigants to submit a summary of the case)+ judge regulated

exchange of information between parties and could call for non-party witnesses : more power

to the judge

The judge in UK has more powers to control procedure than that in the USA Due to the existence of the jury in the common law system and no in the civil law system, the

procedure for the Common law systems differ to that of Civil law

A jury is defined as a group of people who are sworn to give a verdict (the facts)on a case whichis given to them by a court,

A judge, on the other hand, is an individual who is tasked to preside over a court proceeding. Hecan either act on his own or with a panel of judges. They hear all evidence presented by

witnesses, assess all facts, and decide on a ruling based on his judgment and interpretation of

the law.

Therefore, a lot of responsibility is placed in the jurys hands in a caseBlurring the Contrast

IS there really today much difference between civil procedure in Common and Civil law countries?

The civil and common law systems are becoming more similar in their approach as they bothtry to empower the judge, lay down civil procedure and give less power to the litigants

What differences remained in the procedure between the two systems?o Continent: characterized by series of court hearingso With use of documentation and documents more than oral testimonialso Counsel doing little proof-taking worko

Appeal to higher courtso Judges are the anemic fact-finders

o Common law: divided trial court with independent lay adjudicatorso Decision-makers exercise a great deal of discretiono Appellate process focuses more on the input rather than output of decision-making

However, these are just remaining traces, not conservative extremes

Vestigial Differences

Early stages of lawsuits:o Common law partisan counsel gathers material for the decision and judge merely

supervises or intervenes if disputes arise

o Continent gathering material is the task of the judge This highlights the difference between the privatized and officialized action and the extent

of disclosure of information:

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o Common law- Litigants decide what information received from opponent shall be usedin proof-taking, parties preserve their separate files, they are not officially put in a file

for the case

o Continent disclosure of information is all put in an official file of the case and itbecomes evidence in the case and in other proceedings and can be used at any time in

the case as evidence

Later stages of law suitso Common law- ready to entrust procedure to the parties or their lawyers.

Proof taking is divided between two partisan cases : burden of going forwardwith evidence is split between the litigants

Fact witnesses are associated with the parties who call themo Continent-bureaucratic preference for official action

Development of evidence is the responsibility of the judge: burden of proof ismostly carried out by the court

Judge interrogates witnesses first and parties or their lawyers and can proposeadditional questions to be asked by witnesses

Single level of adjudication vs hierarchally organized proceedings:o Common law he has power to reconsider his own decision and to decide whethero Civil lawonce a trial judge has spoken, the procedural segment conducted before him

comes to an end and corrections can only be made by courts superior to him and he

cannot decide whether his decision can be appealed or not

How judges perceive their roles:o Common law- fact-finding is not central to their task but they supervise development of

evidence by the litigants

o Continental accurate fact finding is at the heart of their vocation therefore, judges arenot limited to facts brought by litigants

Litigants councilo Continental- they seldom help in proof taking and search for evidence, therefore, not so

active

o Common law since judges do not do the fact-finding, partisan counsel doAre Vestiges evanescent?

The two systems are becoming closer to each othero Continental - Eg. Italy primary responsibility of proof taking is on parties and the

judges only have a complimentary role in finding facts.o Common law judges are becoming more and more of fact finders

In international criminal courts: parties are the ones who find facts but judges can intervene inthis matter.

o However, one can notice that judges trained in civil law countries interfere more thanthose trained in common law countries in court.

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