Understanding the German legal system is essential to facing a lawsuit. At Schlun & Elseven Rechtsanwälte, our legal experts regularly support foreign clients who are unused to the German legal system. Our attorneys are experienced in a wide variety of legal issues and advise across legal fields.
If you require specialised legal assistance, please do not hesitate to contact our litigation team at Schlun & Elseven Rechtsanwälte.
Bringing a Lawsuit in Germany
There will be occasions when a lawsuit is justified and necessary. Make sure to consult with legal counsel before proceeding with the German lawsuit. Experienced German legal representation will provide the required legal grounds and outline your chances in the case. However, after consulting and agreeing to pursue the lawsuit, the following steps are to make the legal claim at the appropriate court. Your lawyer will provide the information you need regarding which court to approach and how to do so.
Once the claim has been made and the amount sought stated, the court will issue the court fee. This is based on the case’s value and, thus, the amount sought after by the plaintiff. The more sought for, the higher the resulting court fee. These fees have to be paid in advance.
The court fee has to be paid in advance. These fees must be paid if you plan on bringing the matter to the courtroom. The claim may not see the light of day and will gather dust if they are not. Therefore, it is a commitment to bring a case to court, and the original court fees are only the start of what could potentially be an expensive outlay.
However, if you are happy to pursue justice as a plaintiff, it is better to pay the court fees and start the legal process.
The accused will be issued a letter about the claim when the court has been contacted and informed of the lawsuit. There will be a deadline of usually two weeks in which they have the chance to respond.
Should they not respond within that time frame, the case can be awarded to you by default. If they respond, stating they will challenge the claim, the issue will likely be a court case.
It is vital to plan the approach to be taken with your lawyer from here on.
Defence Against a German Lawsuit
If you are being sued, you will receive a letter in a yellow envelope, and upon receipt of such a letter, it is vital to keep everything relating to it.
At this point, the most important thing to keep in mind is the deadline. There are deadlines for the initial response and the response concerning how you plan to approach the case. Should such deadlines be missed, the entire German lawsuit could be lost before the defence is even launched.
The letter received will outline who is bringing the case, the reason for the lawsuit and the court involved. It cannot be stressed enough how important it is to keep the documentation involved in a court case. It is also vital to remember that time is of the essence, and deadlines are crucial to ensuring that you can defend yourself.
Should you reply to the first letter, it will simply state that you are willing to defend yourself. Following that letter, another letter will be sent outlining how you will defend yourself and the witnesses you plan to call.
This letter also typically has a two-week deadline by which to respond. In this letter, the legal reasoning will have to be outlined; therefore, it is advisable to consult with a German legal expert who will provide you with the required assistance.
For cases with elements specific to Germany (purely German lawsuits), the deadlines in question tend to be two weeks – so time is of the essence. The deadlines can be extended to four weeks for international cases because they can be more complicated and organising takes longer. Consult with your legal professional about the deadlines in your case.
Can the Court Case be in English?
The working language of the courts in Germany is German. The proceedings will be heard in German, and all written submissions should be in German.
Therefore, it is vital to ensure that you have an English-speaking lawyer in your corner if you are uncomfortable using German at such a level.
Furthermore, having documents translated into English by a qualified translator is also of enormous value. False translations or interpretations can lead to problems down the line so having a professional to assist here is vital.
Witnesses who do not speak German will have the questions asked of them translated into English (or the appropriate language). Your legal team should ensure that an interpreter is present at the lawsuit.
Can I Represent Myself in a German Lawsuit?
For more minor cases, at first instance, at the Amtsgericht (district court), it is possible to represent yourself. This may be attempted to “save costs”, but should the other side have a lawyer, it puts them at an advantage. It is worth remembering that a German lawyer will have many years of legal training and complete comfort in court procedures and proceedings in German. Not having a lawyer by your side is a precarious step to take.
Even if you feel it is unlikely you will win, having a German lawyer by your side may mitigate the losses. Working together, you may be able to achieve a decent settlement. Having an experienced and competent lawyer at your disposal may even be able to turn that unlikely case into a victory.
A lawyer must be present at higher courts and on appeal, as the courts will not consider self-representation.
Can I have a Foreign Lawyer Represent me in a German Lawsuit?
Having foreign lawyers can be difficult if the lawsuit occurs in a German courtroom. In the regional and higher regional courts (Landesgericht and Oberlandesgericht), this is impossible unless they have been admitted to the German bar.
To be admitted to the German bar and thus be able to represent individuals in a German court, the individual must complete legal studies at a university, pass the first state examination, complete a two-year period of legal internship, and the second state examination.
When preparing the case, it is possible to consult with lawyers from your home country or another jurisdiction.
However, it is advisable to have a German lawyer on-hand as well, as there are differences between jurisdictions, legal processes and legal systems. If you are uncomfortable with the proceedings being through German, having an English-speaking lawyer in your corner will ensure that communication throughout the lawsuit is open and clear and does not get lost in translation.
Other Dispute Resolution Options: Arbitration, Negotiation and Mediation
Resolving a dispute out of court, especially international legal cases, can lead to financial savings and be more time efficient. Such international cases can last for months, especially when witnesses and expert statements are required from those outside of Germany.
Our lawyers are experts in negotiations and will advise you regarding how to approach out-of-court options. Our lawyers will advise you regarding mediation and arbitration options that may be available to you.
In German law, the winner takes it all once court cases are decided; therefore, the losing party will have high fees – lawyers and court fees – to pay. In this light, a negotiated lower settlement fee can be attractive and worth considering if you wish to save time. However, consult with your legal representation to ensure that you are coming at this from a strong position. That can make all the difference.
The Role of Witnesses and Experts in German Law Cases
Witnesses have an essential role to play in a German lawsuit, as they are there to help the court regarding facts. Witnesses provide oral evidence in cases and must answer truthfully.
Should a witness be found to have committed perjury (of deliberately misleading the court), they can be given a prison sentence for doing so. The sentence level will depend on the nature of the information provided, whether it was a deliberate action or whether the statement was issued due to negligence.
Witnesses must appear in court (unless they have a valid and accepted excuse) and can be fined for not doing so.
Excuses for not appearing can include issues such as illness, and in such cases, the witness should supply a medical certificate if called. Exemptions exist for blood relatives of the defendant and spouses and fiancées.
Those from certain professions, such as lawyers, journalists, doctors and clergy, can refuse to give information if it would damage them professionally.
The role of the expert in German lawsuits is outlined in § 402 German Code of Civil Procedure.
The expert is a neutral court appointee who is asked to provide their considerable opinion. This opinion will form part of the evidence considered by the court; however, the court makes the final judgment.
The court appoints this expert, but the expert chosen is done with the recommendation of the parties involved. Once this expert is in the court, they supply independent and impartial advice to the court based on the topic at hand.
Experts usually submit written accounts but can be called for an oral examination should the parties demand it. This oral examination allows for the issues to be discussed in greater detail.
Should the court feel that the expert is too closely linked to one of the parties or that the advice provided is prejudicial, the advice can be rejected.
Our Litigation Lawyers
Our Litigation Lawyers
