GERMANY Law and Practice Contributed by: Thomas Nägele, Simon Apel, Jonathan Drescher and Alexander Stolz, SZA Schilling, Zutt & Anschütz
6. Trial 6.1 Bench or Jury Trial
of decisions are rendered in the course of the court proceedings themselves. 5.11 Cost of Litigation Attorney fees and court fees are subject to the value of the amount in dispute ( Streitwert ), which is determined primarily by the value of the trade secret. Every activity of the attorney will be remunerated according to the provisions of the German Act on Reimbursement of Lawyers ( Rechtsanwaltsvergütungsgesetz ), which deter - mines the relevant business fee unit for every legal task and, in an annexed schedule, the applicable fee for the specific amount in dispute. Since trade secrets often have a very high value – which results in correspondingly high litigation costs – the amount in dispute may be adjusted appropriately by the court upon request. However, in many cases the opposite will be the case. Even if, by law, the statutory legal fees may not be undercut, clients and attorneys are free to agree on a (significantly) higher fee rate by con - tract, which is quite common in IP cases, at least at well-known law firms. Hourly rates between EUR250 and EUR650, depending on the seniori - ty of the counsel involved, are common practice. Thus, attorney fees usually exceed the amount of the statutory fees by a great deal. Since the statutory legal fees may not be under - cut, German attorneys generally are not per - mitted to work on a contingency fee basis. A contingency fee may be agreed only for an indi - vidual case and only if the client, upon reason - able consideration, would be deterred from tak - ing legal proceedings without such agreement on account of their economic situation. These requirements are applied very restrictively. In contrast, litigation financing is available in Ger - many and is a market that has grown strongly in recent years.
The law stipulates that civil proceedings shall usually be heard by a single judge in the regional court. However, in cases of particular difficulty, fundamental importance or at the application of both parties, the proceedings take place before a chamber ( Kammer ) of the court that consists of three judges. In trade secret cases, such will usually be subject to jurisdiction of the regional courts and it may often be the case that, due to the complexity of such cases, the chamber will hear the case. 6.2 Trial Process Civil proceedings in Germany are primarily con - ducted through written submissions. However, live witnesses may also be heard for the pur - pose of discovery of the relevant facts if the party that bears the burden of proof applies for such a hearing. While the parties present legal arguments at trial, the court is not bound by them. However, the court may not award more than the plaintiff has requested. It typically takes approximately 12 to 24 months to complete a trade secret trial in Germany, depending on the complexity of the case. 6.3 Use of Expert Witnesses German law allows for the presentation at trial of expert witness testimony. Since the TSA does not contain special provisions regarding this matter, the process for hearing expert witness testimony is governed by the German Code of Civil Procedure. The expert is usually nominated by the court, which takes into account sugges - tions by the parties. Such expert is neutral and their expertise may only cover factual questions (with the sole exception of questions of foreign law, which are treated as a matter of fact under German law).
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