An American Trial Lawyer In Europe: A Sabbatical Revisited

From its source high in the Black Forest, the Danube River winds its way east toward Vienna, Budapest and eventually the Black Sea. At the point where it crosses the border into Austria, it passes Passau, a beautiful baroque city on the banks of the Danube in that corner of Germany where the Czech Republic, Austria and Germany all meet.

In Europe, the University of Passau is regarded as having one of the best schools of international law. So when I was invited to spend my sabbatical at the University of Passau giving a series of lectures on the American jury system, I was excited and honored by the opportunity.

Germany, like virtually all European countries, does not use the jury system. Instead, a case is tried with a panel of judges (usually, three to five on the panel). In fact, the American jury trial, the bedrock foundation of our American justice system, is in many ways a mystery to Europeans.

As Americans, we grow up with the jury system. We see it on TV shows like Perry Mason and coverage of real life trials like O.J. Simpson. We watch juries in the movies from Henry Fonda as the hold-out juror in Twelve Angry Men to Richard Gere as the tap-dancing defense attorney in Chicago. In fact for Americans, it is difficult to imagine a justice system where one was not entitled to a jury of his peers. Plus, we all know relatives, friends and neighbors who have served on juries and have stories to tell.

Preparing these lectures on juries was a task I relished. Here was an opportunity to share one of the great pillars of Anglo-American jurisprudence.

As I walked into the lecture hall in the middle of campus for my first lecture, I was pleased to see it was filled with upper classmen and faculty members who appeared eager to learn about a system they had only seen in the movies. It turned out that this was an interested and inquisitive audience.

My lectures traced the origin of the jury system in England from about the year 1215 through the American Revolution and up to modern day practice. I explained jury duty and how jurors are just ordinary people, summoned to perform their civic duty and selected by the attorneys for the parties.

I was able to explain how attorneys in a jury trial present their case in an adversarial process, where each side has its chance to call witnesses and cross-examine witnesses on the other side. This is a dramatic departure from the European system in which the presiding judge selects and calls the witnesses and asks virtually all of the questions. The students were fascinated to learn how the American trial lawyer considers not only the facts and the law, but also how to most effectively present the case using just the right tenor and mood to fit the client, the claim, and the evidence.

The students and faculty who attended were also intrigued by our system of pretrial discovery. Europeans don’t do discovery. They have no such thing as depositions or document production, all of which are so routine in our civil litigation system.

Instead under the German system the court prepares the case for trial and asks virtually all of the questions. When they appear at trial, the parties have no idea apart from the allegations in the pleadings just exactly what the other side’s witnesses will say.

And, unlike our system, there is no opportunity for the lawyer to ask those penetrating and revealing questions in cross examination. Why not? Because there is no cross examination.

At first the 90 minutes I was allotted for each lecture seemed like it would be more than adequate. In fact, I was worried that I wouldn’t have enough material to fill all 90 minutes. Little did I know that the students and faculty would be so enthusiastic in their response and that questions would last until well beyond the allotted time.

After one lecture, a woman approached me and told me that she had driven from Munich some two hours away. Someone from the law school had called her and told her that she needed to hear what I had to say, so she drove the two hours in order to take in my lecture.

It is the custom for German university students to knock politely on the desk with their knuckles to applaud a professor at the end of a lecture. After my last lecture, I was very pleased to receive a prolonged and resounding knocking or “Klopfen” as a sign of heartfelt appreciation. But really the pleasure was all mine.