GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
and which evidence is offered by that party. Doc- uments are by far the most important evidentiary means in German litigation. If the court concludes that facts must be proved by hearing witnesses or obtaining an expert opinion, it will list the facts in question together with an indication of which party bears the bur- den of proof for the disputed fact in a procedural order, order the witnesses to appear before the court, and/or select an appropriate expert and instruct them to draw up a written expert opinion and then appear before the court for question- ing. Evaluating Evidence The court evaluates the evidence obtained and then makes a factual determination based on that evidence. It may evaluate most forms of evidence according to its sound judgment and common sense, without being bound by rules for the evaluation of evidence. The court is obliged to review all facts presented by the parties and all evidence comprehensively when making a decision. The standard of proof in civil cases is strict, in that the court must be “fully convinced” that a particular disputed fact is true in order to base its judgment on that fact. This means that the court must be sure, with a practically viable level of certainty that silences doubt without complete- ly eliminating it. A lower standard of proof may apply to damage and causal links. 7.5 Expert Testimony If the determination or the assessment of certain facts requires expertise, the court may appoint an independent expert. The expert serves as the court’s objective and impartial assistant. If the parties themselves submit written expert opin- ions, these opinions are not treated as expert
evidence but as part of the party’s pleadings. To prove the factual assertion made in such an expert opinion, the party must submit a request to the court to appoint an independent expert to confirm the assertion. Only the evidence sub- mitted by a court-appointed expert constitutes evidence by expert testimony. Experts usually submit their expert opinions in writing. The parties have the opportunity to comment on the expert’s findings, request that additional questions be put to the expert and apply to the court to summon the expert to an oral hearing to be questioned on their written opinion. The court has discretion to evaluate the expert testimony. In practice, it is very rare for a court to deviate from an opinion rendered by a court-appointed expert. 7.6 Extent to Which Hearings Are Open to the Public Oral hearings are open to the public. In excep- tional cases, the court may order the exclusion of the public at the request of one of the parties. In commercial matters, the discussion of busi- ness or trade secrets may be a reason for this exclusion. The court may also formally order all persons who participate in the hearing to main- tain strict confidentiality. While the principle of public proceedings allows the public to be physically present at hearings, it does not extend to photographs, recordings or public transmissions from the courtroom. 7.7 Level of Intervention by a Judge The judge plays an active role in German civil proceedings. The judge leads through the pro- ceedings, gives indications and directs the tak- ing of evidence. Judges will ask the parties, their attorneys, witnesses or experts questions at any time during the hearing. It is normal for a judge
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