Comparative Law Spring 2003 Professor Susanna Fischer

1. Comparative Law Spring 2003Professor Susanna Fischer FRENCH CIVIL PROCEDURE March 20, 2003

2. Sources of Law: French Civil Procedure • New Civil Procedure Code of 1975 (NCPC) • Right to bring and defend an action is a fundamental constitutional right • NCPC procedure is a servant of rights • Need to have standing – a legitimate personal interest at the date of the court case; must be qualified to bring the action

3. Role of the Judge in French Civil Procedure • Does the judge have a greater role in French civil procedure than in the U.S. federal district courts?

4. Role of French Judges • Considerable power in preliminary hearing to direct preparation of case and order disclosure of documents or responses to pleadings. Also determines when case is ready for trial. • Court (huissier) usually serves claim on D • No mandatory exchange of documents unless judge orders discovery • Court examines witnesses

5. Other Big Differences Between French and U.S. Civil Procedure?

6. Some Other Big Differences Between French and U.S. Civil Procedure? • No juries • No punitive damages • No class actions • Oral advocacy is less important • No real cross-examination of witnesses – written proof is preferred • No contingency fees

7. French Judgments/Dissents • Where there is more than one judge in a French court (see slides on court system) can there be dissenting judgments that are published?

8. French Judgments/Dissents • Where there is more than one judge in a French court (see slides on court system) can there be dissenting judgments that are published? • No – even if there is a compromise outcome, the different judge’s views are not reported. Judgments are in a particular form and must be read out in open court.

9. Form of Judgments • Parties' names, their occupations and addresses, and the names of the parties' representatives and legal counsels. The names of the court and the judges who rendered the judgment are included as well. • Claims of parties and facts • Body (legal grounds) for decision • Dispositif (similar to American court’s holding) • If not in proper form, judgment will be void

10. How Do You Commence a French Civil Proceeding? • Note – we’ll focus on procedure in the Tribunaux de Grande Instance, though this is increasingly being followed in proceedings before other courts, such as the tribunaux d'instance, the tribunaux de commerce, and the conseil des prud'hommes, which traditinoally had a simpler, more oral procedure

11. How Do You Commence a French Civil Proceeding in TGI? • Draft and Issue a statement of claim (need legitimate and personal interest at relevant date) • Claim form must be issued by huissier (see Art. 56 NCPC). If in TGI must appoint lawyer (claim form must mention time frame for this) • Claim form must be served – by post, in person (by huissier), or through D’s lawyer • Can serve at person’s last known address • Must file at court within 4 months or service is invalid

12. Claim form: France • Are the required contents of a claim form similar to what must be in a Complaint filed in a federal district court?

13. France: Defendants defence • How and when can the defendant respond?

14. Defendants defence • How can the defendant respond? • 1. Action inadmissible • 2. Denial • 3. Procedural irregularity e.g. failure to serve • 4. Counterclaim/set off • Defendant must respond within 2 weeks unless not served personally (then has 2 months)

15. What Happens Next in a French Civil Case?

16. What Happens Next in a French Civil Case in then TGI? • Parties exchange pleadings – statement of each party’s claims and arguments in support • Arrange, on own initiative, all relevant documents. • Parties can continue to exchange pleadings until they are sure that all points have been raised. • The judge will call a preliminary hearing – appel des causes. What happens at this hearing?

17. Appel des causes • Preliminary hearing – appel des causes. Judge looks at progress of action including exchange of pleadings and disclosure of documents. Decides whether action has reached a stage when matter can proceed to court (short procedure) or whether additional work needs to be done. • Usually, judge find that more preparation is needed under court supervision (long procedure).

18. Long Procedure • If the case is not ready to proceed to hearing on the date of the appel des causes, what happens?

19. Long Procedure • If the case is not ready to proceed to hearing on the date of the appel des causes, what happens? • Goes to a judge (judge de la mise en état), who helps parties prepare for trial within a reasonable time, by answering pleadings, exchanging documents, etc. Judge tries to facilitate agreement. If parties can’t agree, judge can order parties to respond to pleadings or take necessary steps. Judge can send to trial if one party is ready and other is delaying unduly.

20. Long Procedure: inquisitorial and adversarial • How is the long procedure both inquisitorial AND adversarial?

21. Long Procedure: Discovery • How does French discovery differ from discovery in the U.S. district courts?

22. Long Procedure: Discovery • How does French discovery differ from discovery in the U.S. district courts? • Parties only have to disclose favorable material; judge can play a wider role in obtaining evidence, both oral and written. In practice, in many cases the French judge will not take such an active role in proof-gathering. • French lawyers can’t contact third party witnesses; only the party can do that and prepare witness testimony.

23. What is a French Civil Trial Like?

24. What is a French Civil Trial Like? • Judge relies primarily on written file from preliminary stage and sometimes on a report from preliminary stage • The parties to French civil litigation can give evidence though often their lawyers do not cause them to do so. • Judge must generally agree for live witnesses to testify – most witness testimony is written • Judge can permit parties to continue to debate issues until judge decides case has been fully debated

25. Rendering Judgment in a French Civil Trial • Judge(s) formally end the hearing. • May immediately give judgment, but more usually retire to deliberate • Final judgment is very concise • Judgment is enforceable when a final copy (une grosse) is served on the party against whom judgment is made AND time for appeal has expired without any party making an appeal