Damaska: 19th century Civil and Common Law: The continental civil procedure is based on the French code

de de Procedure civile of 1806 19th century - Civil case was regarded as an instrument for the resolution of controversies and was up to the litigants to settle and withdraw the case at any time. o The litigants could even choose legal framework on which the lawsuit was to be considered o They brought witnesses and facts and the judge did not have power to bring evidence/witnesses on their own initiative o Therefore, the litigants were the ones who controlled the procedural action Therefore, continental civil law was mostly a judicial enquiry into facts of the case while criminal judges were researchers for the truth themselves. There were problems with fact gathering due to Anyone could refuse to testify Parties could not surrender if they wanted documents in their possession to the others Judge could not question if facts that were put forward to him actually existed Lawyers relied mostly on information given to them by their client However, parties had very powerful divides to compel each other Contrasts between common law and civil law The common law litigation was divided in two stages while the civil law counterpart did not Common law prefers in-court testimony (orality) while civil law prefers documentary evidence (text) Common law focused on what facts were inputted while civil law focused more on how these facts were interpreted Civil law had hierarchally- organized appellate courts (unitary courts with professional judges) while common law had a single level of adjudication (divided courts of judge and jury) Since common law relied more on orality, the case takes a series of court sessions while the civil law preferred a number of discrete hearings Discretionary decision-making was less acceptable in the continent since they could appeal anyways and they didnt want to give the lower courts so much powers Since common law do not have hierarchy of court powers, they could assign discretion to decisions of the court Continental systems : party-controlled procedure in hierarchical-bureaucratic apparatus Common law system: party controlled but more egalitarian and less bureaucratic system Overview of subsequent changes: Party control over law suits subsequently weakened everywhere which resulted in the need for civil procedure to prevent misuse of the litigants or their lawyers Civil law : The episodic style of litigation was too long so provisions were enacted so lawsuits are decided in two hearings +appeals were increasingly limited due to time delay - reform

Common law: reform: to make sure judge gets as much facts as possible, a pre-trial fact-finding system was implemented (asking litigants to submit a summary of the case)+ judge regulated exchange of information between parties and could call for non-party witnesses : more power to the judge The judge in UK has more powers to control procedure than that in the USA Due to the existence of the jury in the common law system and no in the civil law system, the procedure for the Common law systems differ to that of Civil law A jury is defined as a group of people who are sworn to give a verdict (the facts)on a case which is given to them by a court, A judge, on the other hand, is an individual who is tasked to preside over a court proceeding. He can either act on his own or with a panel of judges. They hear all evidence presented by witnesses, assess all facts, and decide on a ruling based on his judgment and interpretation of the law. Therefore, a lot of responsibility is placed in the jurys hands in a case

Blurring the Contrast IS there really today much difference between civil procedure in Common and Civil law countries? The civil and common law systems are becoming more similar in their approach as they both try to empower the judge, lay down civil procedure and give less power to the litigants What differences remained in the procedure between the two systems? o Continent: characterized by series of court hearings o With use of documentation and documents more than oral testimonials o Counsel doing little proof-taking work o Appeal to higher courts o Judges are the anemic fact-finders

o Common law: divided trial court with independent lay adjudicators o Decision-makers exercise a great deal of discretion o Appellate process focuses more on the input rather than output of decision-making However, these are just remaining traces, not conservative extremes Vestigial Differences Early stages of lawsuits: o Common law partisan counsel gathers material for the decision and judge merely supervises or intervenes if disputes arise o Continent gathering material is the task of the judge This highlights the difference between the privatized and officialized action and the extent of disclosure of information:

Common law- Litigants decide what information received from opponent shall be used in proof-taking, parties preserve their separate files, they are not officially put in a file for the case o Continent disclosure of information is all put in an official file of the case and it becomes evidence in the case and in other proceedings and can be used at any time in the case as evidence Later stages of law suits o Common law- ready to entrust procedure to the parties or their lawyers. Proof taking is divided between two partisan cases : burden of going forward with evidence is split between the litigants Fact witnesses are associated with the parties who call them o Continent-bureaucratic preference for official action Development of evidence is the responsibility of the judge: burden of proof is mostly carried out by the court Judge interrogates witnesses first and parties or their lawyers and can propose additional questions to be asked by witnesses Single level of adjudication vs hierarchally organized proceedings: o Common law he has power to reconsider his own decision and to decide whether o Civil law once a trial judge has spoken, the procedural segment conducted before him comes to an end and corrections can only be made by courts superior to him and he cannot decide whether his decision can be appealed or not How judges perceive their roles: o Common law- fact-finding is not central to their task but they supervise development of evidence by the litigants o Continental accurate fact finding is at the heart of their vocation therefore, judges are not limited to facts brought by litigants Litigants council o Continental- they seldom help in proof taking and search for evidence, therefore, not so active o Common law since judges do not do the fact-finding, partisan counsel do

Are Vestiges evanescent? The two systems are becoming closer to each other o Continental - Eg. Italy primary responsibility of proof taking is on parties and the judges only have a complimentary role in finding facts. o Common law judges are becoming more and more of fact finders In international criminal courts: parties are the ones who find facts but judges can intervene in this matter. o However, one can notice that judges trained in civil law countries interfere more than those trained in common law countries in court.