The Art of Litigation

I. Introduction

In recent decades, litigation has developed into a "separate" area of law. The times when the law of litigation was essentially limited to procedural law (procedural law) are long gone.

The legal reality in Germany requires not only lawyers specialising in substantive law, but also lawyers who know how to assert claims strategically and as reliably as possible.

"Being right" and "getting right" are literally different "pairs of shoes".

It does not matter whether it is a state court proceeding, "out-of-state" arbitration proceedings or the next round of negotiations in an M&A transaction. The requirements for the procedures are essentially the same.

II Preparation phase

Before initiating any process, it is important to understand the client's interests.

If the client intends to bring a claim before the ordinary courts, the lawyer's first task is to examine the substantive legal situation and to crystallise the respective basis for the claim..

1. Evidence

Once the basis of the claim has been established, the second step is to work out the procedural law (procedural law) clearly. What facts must the client (claimant) present and, if necessary, prove? In civil proceedings, this is also referred to as the burden of presentation and proof. In most cases, the burden of proof is decisive in determining which party wins or loses in court.

Put simply, this means that the respective claimant must first assert (set out) facts which, in conjunction with a legal proposition, appear suitable for the claim asserted by the claimant to be regarded as having arisen in his person.

In principle, the mere assertion of a fact is sufficient in court, provided the opposing party does not contradict the asserted fact. In such a case, the claimant fulfils their burden of presentation. If the opposing party objects to a fact that is relevant to the decision, the burden of proof determines which party bears the risk that the fact that is relevant to the decision cannot be proven.

Ein Beispiel zur Veranschaulichung:

The claimant (seller) claims payment of the purchase price. The defendant denies that a contract has even been concluded between the parties.

In this situation, the claimant must provide evidence that an agreement was reached between the parties in such a way that the claimant was to hand over and transfer a certain object of purchase to the claimant and the defendant was to pay a certain purchase price in return.

The easiest way to provide this proof would be by presenting a purchase agreement signed by both parties. Proof of the conclusion of the purchase agreement could then be provided directly by presenting the corresponding deed.

If no corresponding document can be presented by the claimant, the only option would be to indirectly prove the conclusion of the purchase agreement by presenting other documents. It would also be possible to name witnesses who were present when the contract (agreement) was concluded. The last remaining formal form of evidence would be the examination of the parties, which is only permitted by case law in exceptional cases (e.g. one-on-one interviews).

If the claimant cannot prove a fact that is relevant to the decision, the burden of proof is on the claimant, with the result that the claimant loses the case.

In the run-up to a possible lawsuit, it is the task of the lawyer to assess the available evidence on the basis of the respective basis of the claim, to point out any litigation risks and, if necessary, to obtain further evidence.

2. obtaining evidence

A clever lawyer can still overcome many difficulties with evidence at this stage. If, for example, the client (claimant) has lost the purchase contract in the above example, the claimant could write to the defendant inconspicuously by email or WhatsApp with the following words:

"Hey... (name of the opposing party),

When will you finally pay the ...€ (purchase price) for the ... (object of purchase) that I gave you on ... (handover and transfer of ownership)??“

If the defendant replies with the words: "I'm sorry, I'm short of money at the moment, I'll pay by the latest...", the entire correspondence can be printed out and submitted to the court later.

The court will assess the correspondence procedurally by way of free judicial assessment of evidence (Section 286 of the German Code of Civil Procedure, ZPO), so that the defendant is effectively prevented from effectively disputing the existence of a purchase agreement.

Such tricks show how important good preparatory work actually is. In this way, many a difficulty in providing evidence can be overcome.

3. development of the negotiation strategy

As a further preparatory measure, the negotiation strategy to be used in the specific case should be discussed with the client.

If there is a possibility of an agreement (settlement), your own red flags should be discussed in advance. This makes sense insofar as clients often make economically irrational decisions in court and regret them afterwards. Appearing in court can unsettle some clients, although there is no reason for this, at least in Germany. Discussing red lines makes it easier for the lawyer to protect the client from decisions that are not in their best interests. This also applies when it comes to protecting the client from himself.

III. negotiation

The centrepiece of any litigation is the hearing. In German civil proceedings, the actual hearing is prepared by written correspondence. In the oral hearing, the claims are filed, if necessary after taking evidence.

It is estimated that 70 per cent of the actual persuasion work is done through correspondence. When it comes to correspondence, the real art is to be as concise as possible but as detailed as necessary.

This approach has its origins in the fact that judges in Germany are often under great pressure to finalise cases. Overlong pleadings that a judge has to read do not necessarily help to improve the mood of the presiding judge. Judges' favourites are quick settlements.

From the claimant's perspective, this means that the statement of claim should be structured as chronologically as possible so that the presiding judge essentially only needs to copy from the statement of claim when writing the facts of the case. The same applies to the optional legal arguments in the statement of claim, which in the best case can be included in the grounds for the decision. The trick is to convince the court of your own legal opinion and to do everything possible to make it easier for the court to "get there".

From the opposing party's perspective, this means that the existence of the requirements for a claim must be questioned from a factual or legal perspective. If a claim standard applies on the merits in favour of the claimant, it is the task of the lawyer to identify all objections and defences that could oppose the claim and, if necessary, to present them. The conviction of the client must be made as difficult as possible for the court, unlike from the claimant's point of view.

IV. Enforcement/ Execution

Once the client's objective has been achieved and an enforceable title (judgement, enforcement order, (court) settlement, cost assessment order, etc.) has been obtained, this title must be enforced. A bailiff can traditionally be commissioned for this purpose, who searches the debtor's premises for attachable items and takes appropriate enforcement measures.

It is also possible to have the debtor's claims seized.

These can be:

• Payment claims against banks (payment claim with regard to the credit balance on the current or call money account);
• Payment claims against the debtor's employer (wage garnishment);
• payment claims against other third parties.
• •  

It is also possible to enforce against immovable assets (mortgage by way of security (security mortgage, forced sale and forced administration) or in other rights of the debtor.

Every creditor must be aware that an enforceable title is effectively worthless if the debtor of the claim is or becomes insolvent. An enforceable title is of little use in insolvency, as the creditor is referred to the insolvency quota if there are still assets available.

This means that a client, even if they have "won" in court, effectively loses.