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Annual Survey of International & Comparative Law

Authors

Sven Timmerbeil

Abstract

The U.S. and German civil trial systems differ not only in many details but also regarding their fundamentals. The U.S. civil trial system seems to be basically a battle of the parties in which the lawyers are protagonists and warlords. The judge has most often only a passive role. In contrast, in German civil litigation, the judge generally has a very active role. The judge controls the proceedings, examines the witnesses and is always the decision maker. Other differences include the lack of pre-trial discovery in Germany and the important role of court experts in German civil litigation. Due to the active role of German judges, American lawyers partly describe the German civil procedure system as inquisitorial. This article focuses on the difference between the role of experts in German and U.S. civil litigation. In theory, expert witnesses seem to be only a small detail in the whole system. However, considering their importance in German and U.S. civil trial practice, the role of expert witnesses in both systems is worth analyzing. What is the role of an expert witness in German and U.S. civil litigation? On the one hand, the expert could serve to support the interests .of the party employing her expertise. Although this does not necessarily preclude the expert from also supporting the truth-finding process, any conflict between supporting one party and supporting the truth-finding process may result in manipulated or false testimony. On the other hand, the expert could (only) support the decision-maker in finding the truth, and, in this sense, could be considered an extension of the decision-maker. These are the possible roles or functions of expert witnesses.

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