For many people, the prospect of filing a lawsuit or defending against one is associated with uncertainty or apprehension. Legal disputes require strategic thinking, precision, and comprehensive experience. Particularly for international individuals and businesses, understanding German jurisprudence and the legal system is essential to identify challenges early, evaluate them thoroughly, and respond appropriately.
At Schlun & Elseven Rechtsanwälte, our experienced litigation lawyers provide comprehensive support throughout all phases of civil proceedings – from initial case assessment to court representation. We guide clients in Germany and abroad through the complexities of the German legal system, always seeking the most economically sensible solution, whether through determined litigation or strategic negotiations.
Bringing a Lawsuit in Germany
In some instances, filing a lawsuit is not only necessary but also legally justified to enforce legitimate claims or defend against unlawful demands. Before initiating court proceedings, however, it is essential to consult a thorough legal expert. This involves carefully identifying the applicable legal grounds, assessing the prospects of success, and selecting the appropriate type of action and the competent court to pursue.
Initiating a lawsuit involves several decisive steps—from examining the facts to preparing a convincing complaint and adhering to procedural requirements. Each of these steps requires precision, legal expertise, and strategic planning.
Our law firm reliably guides you through this complex process. It ensures that your legal steps are planned and implemented in a targeted, well-founded, and litigation-experienced manner—with the clear objective of representing your interests in the best possible way.
Selecting the Appropriate Type of Action
German civil law distinguishes between three fundamental types of actions, each serving a different purpose and subject to specific requirements:
- Performance Action (Leistungsklage): With this action, the plaintiff demands that the defendant perform a specific act or refrain from doing something—such as payment of a sum of money or return of property. The prerequisite is that the asserted claim actually exists and is enforceable.
- Declaratory Action (Feststellungsklage): This action serves to clarify a legal relationship, for example, whether a contractually regulated relationship exists between the parties concerned. A prerequisite for this is a “legal interest” in the clarification. A purely economic interest is insufficient. The court’s decision must directly impact the plaintiff’s legal position.
- Action for Formation (Gestaltungsklage): This action aims to change, establish, or terminate a legal relationship through court judgment. Examples include divorce proceedings or the termination of an employment relationship, accompanied by a severance payment, under German employment protection law.
Additionally, civil claims arising from criminal offences—such as compensation for damages or pain and suffering—can be asserted in criminal proceedings through what is known as the adhesion procedure (Adhäsionsverfahren). This procedure enables the injured party to pursue civil claims directly in ongoing criminal proceedings against the accused, without the need to initiate separate civil proceedings.
Determining Court Jurisdiction
Court jurisdiction in civil proceedings is a central aspect that must be correctly determined when filing a lawsuit. German law distinguishes between substantive jurisdiction (sachliche Zuständigkeit) and local jurisdiction (örtliche Zuständigkeit).
Substantive jurisdiction is determined by the value in dispute and the subject matter of the dispute. Generally, the local court (Amtsgericht) has jurisdiction over disputes with a value of up to €5,000, while the regional court (Landgericht) handles cases with a value exceeding this amount. Exceptions apply, for example, in certain family matters or rental disputes.
Local jurisdiction is typically determined by the defendant’s place of residence (Section 12 of the of the German Code of Civil Procedure, or ZPO), but may vary depending on the subject matter of the dispute, such as in contractual disputes or tort claims. Additionally, divergent jurisdiction can be agreed upon through choice of court agreements (Gerichtsstandsvereinbarungen), provided this is legally permissible.
Incorrect jurisdiction can lead to dismissal of the lawsuit or delays in proceedings. Therefore, the correct selection of the competent court is essential for smooth procedural progress.
Drafting the Complaint | Filing the Lawsuit | Service on the Defendant
The lawsuit is initiated at the competent court through a written complaint. This document must satisfy the legal requirements outlined in Section 253 ZPO. The complaint must name the parties and the court, and provide sufficiently specific information regarding the subject matter and grounds of the action. Furthermore, the facts on which the lawsuit is based must be presented in a comprehensible manner. It is essential that the plaintiff coherently justifies the claims and presents the material facts.
The complaint should be logically structured and clearly formulated, as it forms the basis for further proceedings. An incomplete or unclear complaint can lead to delays or impair the prospects of success. In complex cases, legal assistance is advisable, as the complaint is decisive in determining whether the court will admit the case and examine it substantively.
After filing the complaint in accordance with requirements, it will be served on the defendant. Additionally, the court sets the court fee, which is based on the value in dispute. The court then requests a corresponding advance payment of costs from the plaintiff.
Service of the complaint on the opposing party is an essential procedural step that ensures all parties are properly informed about the court proceedings. With service, a two-week period typically begins during which the defendant must indicate to the court their willingness to defend (Section 276 ZPO). If no response is received within this period, the court may, upon the plaintiff’s application, issue a default judgment in favour of the plaintiff. However, if the defendant responds to the matter, the proceedings advance to the next phase, and a contested hearing takes place.
Throughout this entire process, our objective is to accompany you strategically and with legal certainty. We deploy our legal expertise purposefully to effectively advance your interests – with a clear view of your case’s unique characteristics and the requirements of German civil procedural law.
Defense in Civil Proceedings: Steps and Strategies
A lawsuit will be formally served on you in a yellow envelope. Upon receipt of such correspondence, it is important to preserve all documents relating to it and respond promptly. There are strict deadlines, and missing them can result in losing the entire legal dispute before the defense has even been launched.
In written preliminary proceedings, you must indicate within two weeks whether you intend to defend yourself. If service of the lawsuit is to be made abroad, the deadline is regularly four weeks. Following this, another two-week deadline is issued during which you must explain how you will defend yourself and which witnesses you wish to name. In this correspondence, the legal reasoning must be presented. Therefore, it is advisable to consult a legal expert who will provide you with the required support.
At Schlun & Elseven Rechtsanwälte, our lawyers conduct a thorough analysis of the legal and factual aspects of the case. This includes reviewing the claims made by the opposing party, assessing available evidence, and identifying potential legal defenses. Our legal team ensures that clients are well informed about the strengths and weaknesses of their position.
Based on the evaluation of the lawsuit, we work collaboratively with clients to formulate a tailored defense strategy. This may involve challenging the legal basis of the claims, presenting counterarguments, or exploring settlement options through negotiation or alternative dispute resolution methods. The defense strategy is designed to achieve the best possible outcome for the client, taking into consideration legal, financial, and practical considerations.
Strategic Trial Preparation with Schlun & Elseven Rechtsanwälte
Our lawyers guide clients through all aspects of court proceedings, including evidence gathering, witness preparation, development of legal arguments, and strategic planning. Our objective is to present a compelling case that advances our client’s position during the trial phase of court proceedings.
Central to trial preparation is compiling evidence to support our client’s position. Our legal team reviews all relevant documents, records, contracts, and other pertinent materials that can bolster the client’s case. This also includes challenging incorrect evidence and presenting our own evidence. As part of the trial preparation strategy, our team also identifies and prepares witnesses. We ensure they are familiar with the proceedings, understand the questions they may face, and can present their testimony clearly and convincingly.
Our team thoroughly prepares for the proceedings and strictly adheres to the procedural rules and court protocols governing the trial. Our lawyers ensure careful adherence to these rules, from filing pre-trial motions to presenting evidence during the trial. Our firm places strong emphasis on regular communication regarding the progress of trial preparations and the legal strategies employed.
Witnesses and Expert Witnesses in Civil Proceedings: Cornerstones of Evidence
Witnesses
Witnesses play a crucial role in legal disputes, as they are intended to assist the court in establishing the facts. Their testimony is given orally and must correspond to the truth. False statements carry significant criminal consequences. Additionally, witnesses are obligated to appear in court unless excused due to, for example, illness. Illness of the witness and other reasons for inability to attend must be communicated to the court in writing and accompanied by, for example, a medical certificate. Unexcused absence can result in the imposition of an administrative fine (Ordnungsgeld).
Exemptions exist for blood relatives of the defendant, as well as spouses and fiancées. Those from certain professions, such as lawyers, journalists, doctors, and clergy, may refuse to provide information if it would cause them professional harm.
Expert Witnesses
The role of expert witnesses in German court proceedings is regulated in Section 402 of the ZPO. The expert witness is a neutral expert appointed by the court who is requested to prepare an opinion. This opinion forms part of the court’s evidence; however, the final judgment is rendered by the court. The court proposes the expert witness, but the final selection of the expert witness is made in agreement with the parties.
Once in the courtroom, the expert witness provides the court with independent and impartial advice on the relevant subject. Expert witnesses typically submit a written report but may also be summoned for oral examination at the request of the parties. This oral examination allows for a more detailed discussion of the issues. If the court concludes that the expert witness has a close relationship with one of the parties or that the opinion is one-sided or prejudicial, it may reject the opinion.
Using Evidence Effectively: Strategies for Strong Case Preparation
Gathering and preserving evidence and documentation is of critical importance, as these elements serve to substantiate legal assertions and enable a clear and convincing presentation of facts. The presentation of evidence is not merely a procedural requirement but a strategic endeavor. Whether in negotiations, settlement discussions, or court proceedings, the strength and relevance of presented evidence can determine success or failure. A well-supported case, fortified by compelling evidence, not only strengthens legal arguments but also enhances the persuasiveness of the overall presentation.
The spectrum of evidence that can strengthen a case is diverse and encompasses a range of materials that collectively contribute to the robustness of legal arguments. Our legal team explains which documents can serve as effective tools for well-founded case preparation:
- Contracts and Agreements: Well-drafted contracts and agreements serve as foundational documents. They establish the terms and conditions of legal relationships and define the rights and obligations of the parties involved.
- Correspondence and Communications: Written communications, including emails, letters, and other correspondence, can illustrate the development of relationships, agreements, or disputes.
- Financial Records: Financial documents, such as invoices, receipts, and account statements, can provide a tangible record of transactions.
- Witness Statements and Testimonies: Statements and testimonies from witnesses with firsthand knowledge of relevant events can confirm or refute factual assertions and lend credibility to the case.
- Expert Opinions and Reports: Expert opinions and reports can be highly beneficial in cases requiring specialized knowledge. Whether dealing with technically complex, medical, or industry-specific disputes, expert contributions can provide authoritative perspectives that deepen the case.
- Official Records and Government Documents: Official records and government documents, such as permits, licenses, or regulatory filings, can serve as authoritative sources of information.
Amicable Dispute Resolution in Civil Proceedings | Settlement, Mediation, or Out-of-Court Negotiations
Amicable dispute resolution plays a central role in civil proceedings, as it represents an efficient and often more cost-effective alternative to full judicial decision-making. The objective is to terminate the legal dispute early through an agreement between the parties. This can occur through a court settlement (Section 278 ZPO), mediation, or out-of-court negotiations.
A procedural settlement creates legal clarity and is enforceable, provided it sufficiently specifies the obligations imposed on the parties. A particular advantage is that the parties actively participate in the solution and can thus reach individual, interest-based arrangements. The courts themselves are required to work towards an amicable agreement.
An amicable resolution not only saves time and money but also preserves personal or business relationships. Our firm supports you in negotiating strategically and developing legally sound solutions—whether within the framework of a procedural settlement or through targeted out-of-court conflict resolution.
The Role of Lawyers in the German Legal System
Trial lawyers have multifaceted roles in the German legal system, extending beyond traditional courtroom representation. At the core of their responsibilities is the role of legal advisers, who act as trusted guides navigating clients through the legal implications of the case. Whether it involves analyzing the repercussions of specific actions, mapping potential courses of action, or offering insights into the likely outcomes of legal disputes, lawyers provide clients with clarity in the face of complex legal issues.
Lawyers also serve as advocates and representatives when disputes escalate to negotiations, court proceedings, or other legal forums. A skilled lawyer can clearly articulate their clients’ interests, present compelling legal arguments, skillfully cross-examine witnesses, and make persuasive submissions to secure the best possible outcomes for those they represent.
Lawyers often find themselves in the role of mediators and negotiators, attempting to facilitate amicable resolutions. Through settlement discussions, out-of-court settlements, or alternative dispute resolution methods, lawyers strive to reconcile opposing interests and facilitate agreements.
Overview of the German Legal System
Schlun & Elseven Rechtsanwälte is here to guide you through the critical aspects of the German legal system, ensuring you are well-informed and equipped for legal challenges in Germany. Germany has a well-defined judicial system with a hierarchy of courts, each serving a specific purpose.
Local and regional courts (Amtsgericht and Landgericht) are at the base level, handling civil and criminal matters. Above them are the Higher Regional Courts (Oberlandesgericht), which deal with appeals and certain specialized cases. At the pinnacle is the Federal Court of Justice (Bundesgerichtshof), which serves as the supreme court for both civil and criminal matters.
Judges play a pivotal role in the German legal system, ensuring that proceedings are fair and impartial. They are appointed based on legal expertise and experience. In civil cases, a single professional judge typically presides over the proceedings. Criminal cases, on the other hand, involve a panel of judges and assessors.
Our Litigation Lawyers
Our Litigation Lawyers
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