The Civil Law System in Different Countries - Essay Example

1 Law In reviewing the pre-trial procedures in France, the UK and the US, it was discovered that there are similarities and differences; the UK and the US, both have civil procedure rules pertaining to discovery, depositions and rules of evidence, and their legal systems are based on common law. However, while France does have civil law procedure rules, it does not have a coded process for discovery, and its system is based on civil law. In common law systems (UK and US), the law is created and/or refined by the judges; a decision in a case currently pending depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, common law judges have the authority and duty to make law by creating precedent. The body of precedent is called “common law” and it binds future decisions. In future cases, when parties disagree on what the law is, an idealized common law court looks at past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If however, the court finds that the current dispute is fundamentally distinct from the previous cases, it will be decided as a “matter of first impression”, thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis. The decisions of a court are binding only in particular jurisdictions. In California State Courts, discovery is governed by the Civil Discovery Act of 1986, Title 4 (Sections 2016-2036) of the Code of Civil Procedure. 2 “…California discovery requests are not continuing; the responding party only needs to respond with the facts known on the date of the response, and is under no obligation to update its responses as new facts become known. This California stipulation runs counter to Rule 26 Subdivision (e) of the Federal Civil Procedure which provides for supplementation, and requires a person to correct any submitted information as it is necessary. Additionally, the district of Columbia adheres to the federal rules with some modifications; there maybe variances in deadlines, and litigants are relegated to the Districts Superior court. There can be 35 interrogatories, including parts and sub-parts, maybe put forth by any of the involved parties. There is no requirement for a “privilege log” (Federal Rule 26 (b) (5) was not adopted by the D.C. Superior Court)1. Albeit the presence of uniformity does not persist (as a matter of fact, the state of Louisiana, while possessing a civil procedure, its legal system was influenced by the Napoleonic code, and is one of the few US states which has a civil law system), in an adoption of the Federal Civil procedure from state to state, the prevailing common law strategy of the code compels one to integrate all the lines drawn and reasons given, and determine what the law is, then one applies that law to the facts. As we see in the discovery case of Finley v. Hartford Life and Accident Insurance Company, 2008 1Subdivision (b) is said to be the soul of the discovery rule, and it dictates what is discoverable and what is limited. Anything that is relevant is available for the other party to request, as long as it is not privileged or other wide protected. (5)., generally prohibits the discovery of any material legally privileged (attorney-client, doctor-patient etc.) and requires the production of a “privilege log” which describes the privileged information or material in a way that allows others to see that (if) it is privileged, but does not divulge the privileged material. See honza, 2007 WL 4591917 (Tex. App Dec.28, 2007) 3 WL50984 N. D. California February 22, 2008). In Accordance with Rule 26 (a) (1)2 initial disclosures; Hartford indicated it was disclosing a copy of the administrative record related to the plaintiffs disability claim, and produced among other things copies of the claim file, electronic notes, and surveillance videos conducted by Dempsey. Due to what Hartford calls “an administrative oversight”, the videos produced did not contain the footage of the plaintiff in the kitchen. Hartford later produced the kitchen video, in a supplemental disclosure under Rule 26 (a). Hartford argued that it complied with its usual procedure and that a reasonable search was done, and that as soon as it discovered that the full video had not been disclosed it complied with Rule 26 (e)3 and supplemented its earlier disclosure. The plaintiff sought sanctions, alleging that Hartford failed to disclose the kitchen video in violation of Rule 26 (a), that Hartford’s attorney certified Hartford’s initial and incomplete disclosure in violation of Rule 26 (g)4, and that Hartford failed to produce the kitchen video in response to a particular request for production.The court granted the plaintiffs motion in part, faulting Hartford’s search for relevant evidence. The Court found that Hartford failed to make the requisite “reasonable inquiry” required by Rule 26 (g).5 2Subdivision (a) (1), provides for automatic disclosure. Disclosure dictates that parties offer their supporting evidence without being requested to do so by the other party. In the event that either party does not disclose any portion of their evidence prior to the trial, then at trial it will not be allowed .This only applies to evidence which works in favor of the case. They can refuse disclosure of any evidence which will hurt the case. 3Subdivbision (e), provides for supplementation, which requires a person to correct any submitted information as it is necessary. 4Subdivision (g), is the good faith rule which provides sanctions at any party that makes a discovery request or response designed to thwart justice, cause undue delay, or harass the other party. 5Finley v. Hartford Life and Accident Insurance Coimpany 4 US Discovery DisAdvantages If an applicable rule is not explicitly adhered too by either party, there is justifiable grounds for a challenge. Rule 37, deals with the failure to make or cooperate in discovery Whenever someone fails to respond to a formal request, rule 37 paves the way for sanctions. Rule 26 (b) (2) states that, a person “must” inform the other person with their reason why. These procedures are designed to establish a level playing field, and to safeguard expediency. The use of discovery has been criticized as favouring the wealthier side, in that it enables parties to drain each other’s financial resources in a war of attrition. For example, one can make information requests which are expensive and time consuming for the other side to fulfill to produce hundreds of thousands of documents of questionable relevance to the case; file requests for proactive orders to prevent the deposition of key witnesses. In a critique of the American legal profession, Caneron Stracher Esq., described an assortment of unfavourable tactics in the US: “…With the noble sentiment of “leveling the playing field”, so that no party has an undue information advantage, the writers of the discovery rules created a multi-level playfield where the information rich can kick the information poor in the head and escape unscathed”6 Tort reform supporters argue that such tactics are often used by plaintiffs’ lawyers to impose cost on defendants to force settlements in unmeritious cases to avoid the cost 6Cameron Stracher, Esquite 5 of discovery. Victims rights advocates, on the other hand, believe that the opposite is true; defendants generally have more resources than the plaintiffs and accordingly, they impose cost on parties by dragging out the litigation. US Discovery Advantages An uncooperative stance on the part of either party is not an option which will be met with favourable consequences. In practice, most civil cases in the US are settled after discovery. After discovery, both sides usually are in agreement about the strength of each sides case and this produces a settlement which eliminates the exposure and risks of a trial. The court enthusiastically supports the concept that the concerned parties should discuss (preferably face to face) the terms of their agreement. Discovery in the United States is unique compared to other common law countries. In the United States, discovery is mostly performed by the litigating parties themselves, with relatively little judicial oversight. The federal Rules of Civil Procedure guide discovery in the US federal Court system. Most State Courts follow a similar version based upon the FRCP, Chapter V Deposition and Discovery. Discovery in the UK In England, Courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict. The reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial system of the United Kingdom. Disadvantages of Discovery in the UK “…One of the innovations of the new order 53 in 1977 was that it made it possible for 6 judges to order discovery in accordance with the principles which applied in ordinary civil proceedings”7 “…One of the justifications for requiring public law claims to be brought exclusively by judicial review was that discovery was now available upon application”, whenever, and to the extent that the justice of the case requires”8 “…It soon became clear however, that discovery would be ordered only in very limited circumstances. Order 24 rr 8 and 13 (1), required that orders for discovery were not to be made unless the court was of the opinion that discovery was necessary either for disposing fairly of the case or matter or for saving costs, and this was made the foundation of the court’s restrictive approach. The approach was obvious when one views a number of cases in the Court of Appeals.9 “…The applicant would bring his challenge and the respondent authority would be entitled to defend and explain its actions by means of the affidavits. The court would then only accede to any application for discovery by the applicant if he could already point to evidence in his possession which cast doubt on the veracity of the affidavit. The applicant was thus in a catch -22 situation. He could only obtain evidence to disprove the authority’s version of events if he already possessed it”10 Whether a party has complied with pre-action protocol is to be taken into account by the court when making decisions on case management and costs. No pro-action 7Crawford, Tom, for Judicial Review, Web Journal of Current Legal Issues in Association with Blackstone Press 8lord Doplock; in )’Reilly v. Mackman [1983] 2AC 237 atp 282B 9R v. Inland revenue Commissioners, ex parte J. Rothchild Holdings plc [1987] STC 163, 61 Rax Cas.178, R.v. Secretary of State for Human Affairs, ex parte Harrison [1997] J.R.113 (decided on 10 December 1987), R.v. Secretary of State for the Environment, esparte London Borough of Islington and the London Lesbian and Gay Center [1997] J.R. (decided on 19th July 1991). R. v. sectrary of State for Health, ex parte Hackney London Borough Council 29th July 1994 unrep.,m transcript; Lexis; R v. Secretary of State for the Home Department, ex parte Guardian [1996] C.O.D. 306. 10Crawford, Tom 7 protocol has yet been made covering judicial review. “…In most common law counties, even England, one must look hard to find the resemblances between pre-trial discovery there and pre-trial discovery in the US. In England, for example, although document discovery is available, depositions do not exist, interrogatories have strictly limited use, and discovery as to third parties is not generally allowed”11 “…The history of Part 54 and its clear intention to preserve the features which make judicial review a special jurisdiction all point in the opposite direction”12. “In making judicial review procedure a modification of Part 8, the Rules committee has classified it as a type pf proceeding “unlikely to involve substantial dispute of fact”.12 “…This is reflected in the fact that r 54.16 and PD 54 para 12.1 rule out disclosure of documents unless specifically ordered by the court”.13 The Bowman report recommended that discovery should be restricted in this way despite recognizing the possibility that claims under the Human Rights Act 1998 might require more frequent discovery, Ch 7 para 69. Additionally, it seems unlikely that the CPR will compel the incidence of disclosure of documents to increase in judicial review, due to the fact that, its basic premise is to be prudent with court time an put litigation on a faster track. Advantage of UK Discovery The new rules are closely modeled on Bowman’s recommendations which therefore provide an insight into the Rules’ underlying rationale. The Bowman 11S. Seidel, 1984, Extraterritorial Discovery in International Litigation 24 12Crawford, T. 13Ibid 8 committee’s terms of reference required it to “put forward costed recommendations for improving the efficiency of the Crown Office.List…that do not compromise the fairness or probity of proceedings, the quality of decisions, or the independence of the judiciary”14 In practice the report is overwhelmingly concerned with matters of cost and efficiency. Nonetheless, certain of the reports’ recommendations show real concern to improve the fairness of the system. In relation to the early stages of judicial review procedure, Bowman was concerned with two specific problems. One was the perennial problem of keeping the Courts caseload within manageable proportions. The other was the phenomenon of post-permission settlement whereby a high proportion of applicants, having obtained permission and thus used up judicial time, then settled with the respondents”15 Bowman’s proposed solution involved two principal innovations. First, the permission stage was to be made an inter partes procedure with the defendant authority being given full notice of the application.16. second, consideration of permission applications was to be always, in the first instance, on paper17. The report emphasized that it should continue to be possible to renew the permission application orally before the High Court and that refusal of permission in the High Court should be open to appeal, with leave, to the Court of Appeal18. The latter proposal was intended to enable the court to deal more quickly with permission applications, the former to encourage pre-permission settlement. At the same 14Bowman Report 2000, preface pii 15Ibid p68 para 19 16Ibid Ch 7 paras 18-25 17Ibid Ch 7 para 26-27 . 9 time, Bowman made a proposal intended unequivocally to improve the fairness to applicants of the permission stage. This was that a presumption in favor of granting permission where the test of argument was satisfied should be spelt out in the rules 18 France Civil Law The civil law system is inquisitional rather than adversarial and the judge normally questions the witness and prepares a written summary of the evidence. “…It should be noted that there are considerable differences between the legal methodologies of various civil law countries. For example, it is often said that common law opinions are much longer and contain elaborate reasoning, whereas legal opinions in civil law countries are usually very short and formal in nature. This is in principle true in France, where judges only cite legislation, but not prior case law.”18 France Evidence Process Disadvantage Discovery as it would be defined in accordance with the Federal Civil Code Procedure; the process of party-controlled fact gathering, does not really exist. Pleadings are very general and they are refined, as the case moves along. Discovery and pre-trial proceedings are viewed as unnecessary. A written record, not a transcript, is prepared and used as the basis for decision. The judge is officially active, but issues and questions are decided by the parties involved. Questions submitted by counsel in writing are asked by the judge, who rarely adds any of his own. The questions which are prepared beforehand by counsel for the judge to pose, are also given to the opposing party, which presents them the opportunity to prepare their 10 responses. Albeit witnesses may see the questions they will be asked in advance, the system strongly discourages contact between counsel and witness. The scope of the testimony will be limited to the statement of the offering party of what the witness response will be. The system is by many accounts classist, racist, homophobic and sexist; as no women are allowed to provide testimony. Depositions and Evidence US and UK In the US the Federal Civil Code Procedure covers the deposition in Rules 27 – 32. A deposition is generally taken before the suit begins and in certain instances after the trial ends. The taking of depositions in the US is extremely regulated; there must be a court reporter present, and due to the formality and the official requirements it can develop into an expensive undertaking. One must be prepared to depose a witness because there is a rigid time limitation; only one day of questioning, for seven hours. If additional time is needed, there are two options which are available. The deposing attorney must request a court order, or the parties involved must stipulate agreement. In all fairness, an attorney can advise his client during the process in whether he should answer any given question. Rule 31 extends the process and even bends the formality, as it allows for written questions. This process would involve questions which have been prepared by an attorney but they would be asked by the court reporter. This procedure is rare, but is is sometimes used to depose persons who are in remote hard to reach venues, and for those who are incarcerated. As previously stated and noted by Steider, In the UK depositions do not exist. However, the provision of evidence is robust and ever expanding, as is evidence by the 11 following case law: In Re Lucas In 1981 the Royal Court issued a disclosure order to Mr Lucas, the Assistant Rating Officer of the Parish of St Brelade, this order was against the Constable of the parish.  The Constable was held to have been innocently mixed up in the wrongdoing alleged against Mr. Lucas in defamation proceedings brought against him by another parish employee. Mr.Lucas made a request that he be permitted to avail of the Constable’s documents to form his defence As this was an unprecedented request, the court equaled the precendent by accepting the request. In an attempt to preclude public shame for the Constable before the Royal Court. Additionally, to summon the Constable to bring the papers to court on the day of the trial, would be met with procedural delays. Though the court fashioned a remedy, it was short lived as the method approved in the later case of Pacific Investments Ltd v Christensen and others18 which applied Khanna v Lovell White Durrant,19 wherein the trial “started” early at some date prior to the real trial in order to receive the documentary evidence of a witness subject to a subpoena duces tecum.  Once the documents were received, the “trial” was adjourned to allow the documents to be examined in preparation for the full trial at a later date. The decision in In Re Lucas runes counter to the mere witness rule, because the 181996JLR N& 19 [1997] 4 ALL er 200 at page 201 12 risk of not having a trial at all without disclosure, was not evident.. Further, the decision was heavily weighted in favor of the defence   . In yet another case, O’Brien v Jersey Evening Post Ltd, the plaintiff put forth the argument that he had been wrongful dismissal.  “He asked the Royal Court for an order that the defendant disclose the name of an advertiser who had placed an advertisement in the newspaper, but whose identity had been hidden by the use of a box number. The plaintiff suspected (but did not know) that the advertisement related to the position from which he believed he had been wrongly dismissed”(20) “The Royal Court refused his application and gave its reason as: Mr O’Brien did not rely on the advertisement alone to make out his case whereas Mr Lucas’ defence was dependent upon the evidence from the parish rating list. This seems to be a clear acknowledgement of the importance of the mere witness rule, which had not been fully acknowledged, it seems, in Lucas.  It seems likely that, had Mr O’Brien been relying exclusively on the advertisement as evidence to support his proposed claim, the court would have granted his application”21. 20O’Brien v. Jersey Evening Post Ltd. 21op.cit. Footnotes 1 Federal Civil Code Procedure Subdivision (b) is said to be the soul of the discovery rule, and it dictates what is discoverable and what is limited. Anything that is relevant is available for the other party to request, as long as it is not privileged or other wide protected. (5)., generally prohibits the discovery of any material legally privileged (attorney-client, doctor-patient etc.) and requires the production of a “privilege log” which describes the privileged information or material in a way that allows others to see that (if) it is privileged, but does not divulge the privileged material. See honza, 2007 WL 4591917 (Tex. App Dec.28, 2007) 2Subdivision (a) (1), provides for automatic disclosure. Disclosure dictates that parties offer their supporting evidence without being requested to do so by the other party. In the event that either party does not disclose any portion of their evidence prior to the trial, then at trial it will not be allowed .This only applies to evidence which works in favor of the case. They can refuse disclosure of any evidence which will hurt the case. 3Subdivbision (e), provides for supplementation, which requires a person to correct any submitted information as it is necessary. 4Subdivision (g), is the good faith rule which provides sanctions at any party that makes a discovery request or response designed to thwart justice, cause undue delay, or harass the other party. 9R v. Inland revenue Commissioners, ex parte J. Rothchild Holdings plc [1987] STC 163, 61 Rax Cas.178, R.v. Secretary of State for Human Affairs, ex parte Harrison [1997] J.R.113 (decided on 10 December 1987), R.v. Secretary of State for the Environment, esparte London Borough of Islington and the London Lesbian and Gay Center [1997] J.R. (decided on 19th July 1991). R. v. sectrary of State for Health, ex parte Hackney London Borough Council 29th July 1994 unrep.,m transcript; Lexis; R v. Secretary of State for the Home Department, ex parte Guardian [1996] C.O.D. 306. References 5Finley v. Hartford Life and Accident Insurance Coimpany 6Cameron Stracher, Esquire, A Critique of the American Legal Profession 7Crawford, Tom, for Judicial Review, Web Journal of Current Legal Issues in Association with Blackstone Press 8Lord Diplock; in )’Reilly v. Mackman [1983] 2AC 237 atp 282B 10Crawford, Tom, For Judicial Review, web journal of current legal issues in association with Blackstone Press 11S. Seidel, 1984, Extraterritorial Discovery in International Litigation 24 12Crawford, T. 13Ibid 14Bowman Report 2000, preface pii 15Ibid p68 para 19 16Ibid Ch 7 paras 18-25 17Ibid Ch 7 para 26-27 181996JLR N& 19 [1997] 4 ALL er 200 at page 201 20O’Brien v. Jersey Evening Post Ltd. 21op.cit. Read More