Legal framework

State court proceedings in Germany are governed by the German Code of Civil Procedure ("ZPO").

State court proceedings start by the plaintiff filing a lawsuit with the court of primary jurisdiction which will then be served by the court to the defendant.

Once the case is pending, the court will make decisions on further procedures. In some cases, the court may decide to hold a so-called "early oral hearing". In other cases, it may ask the parties to file additional written briefs before an oral hearing is held.

At the beginning of each oral hearing, the judge will discuss with the parties the chances of reaching an amicable settlement. The judge will usually provide the parties with his "temporary and non-binding" legal view of the case for this purpose.

German litigation has some unusual proceedings (if compared to Anglo-American proceedings for example) some of which shall be mentioned shortly:

German judges will provide the parties with specific directions in case they realise that the parties have misunderstood the law. In case of witness or expert examinations, the judge himself will examine the witness or expert. The parties are only entitled to ask questions afterwards.

Parties may only plead and prove the facts of a case, but not the law. An exception is made for dealings in foreign law where the parties are to establish the legal rules. Nevertheless, the parties are entitled to, and usually will use the right to argue the relevant law and what it stands for.

In German litigation proceedings, no "pre-trial discovery" phase exists, where a party is able to request the disclosure of relevant information, including documents from the other party. The general rule is that each party has to prove the facts on which it has based its case by relying on means of evidence available to them.

A judge will only take on factual evidence, which in the judge's view is relevant to the outcome of the case. Thus, the gathering of evidence (and related costs) is significantly reduced.