The Gazette 1967/71

The Judiciary With the exception of the Federal Constitu tional Court, all judges in Germany are career judges, i.e. one becomes a judge straight away after qualifying. Appointments to the bench are not made from the ranks of practising lawyers as in this country. Nor is there such a thing as a "State Brief", since this is the job of the State Attorney who is a legal civil servant. The German judge is, to all intents and pur poses, a civil servant. He is appointed and promo ted in much the same way as any other civil servant. His salary is not even attractive by civil servant standards. In fact, the judge has much the same social status as a secondary school teacher. This is probably because the courts and case law in general have not the same importance in the law-making process and there is no doctrine of stare-decisis and case precedent has generally only persuasive authority. The German, apparently, puts a much higher value on a good administrator than on a good judge. The procedure adopted in court cases throws a very heavy burden of responsibility on the judge, while the attorney plays a very subordinate role. The judge selects witnesses and examines them and he decides on what points they may be heard. He (and not the parties to the dispute) appoints the people who should give expert evidence. He decides at the end of the case what time is left to the parties to make their cases. The attorneys are not encouraged to make long addresses and any- kind of histrionics would not be tolerated. There is no jury in civil cases, and the jury in criminal cases have very limited functions. It is estimated that there are approximately 14.000 professional judges at present in the Federal Republic, as against only 200 judges in England (excluding lay magistrates) and approxi mately 60 judges in all in Ireland. Rechtsanwalt (Attorney) He has a right of audience before the Amts- gericht and before any of the administrative, revenue, labour and social insurance courts. He can, however, only appear before one specific Landgericht or Oberlandesgerichte or Bundes- gerichtshof. The newly qualified Rechtsanwalt must, therefore, decide which specific court he wishes to be admitted to, since he will be subse­

quently restricted to the court of his choice. It follows that there is both a territorial and hierar chical restriction. For example, there is no point in instructing an attorney admitted to Dusseldorf if the case is to be heard at Cologne (this illus trates the territorial restriction). If there is an appeal from the Landgericht to the Oberlandes gerichte, the litigant must change his attorney and instruct one who has been admitted to the particular Oberlandesgerichte in question (this is the effect of the hierarchical restriction). If there should be a further appeal to the Bundesgericht- shof, another change of lawyer is required. Accor dingly, a litigant could need to instruct three different lawyers in the course of the same case. Members of the teaching staff of the universities may appear before several courts. They often do so and advise in issues of importance. This is unusual from our point of view and illustrates the unique position of the academic lawyer in Ger many. In fact, the law lecturer or academic com petes with the practising attorney in high level cases. As shown above, the Rechtsanwalt plays a very subordinate role in court cases. This has the effect of down-grading in the profession the importance attached to contentious litigation, which is very often left to the junior staff of law firms. The senior members prefer advisory or drafting work or even semi-legal tasks such as being advisory mem bers on the board of directors of companies. Notar (Notary) The Notary enjoys the highest status in the German legal profession and the number of Notaries admitted is limited. It takes longer to qualify as a Notary. His work includes land trans- fei, probate and administration of estates and a considerable competence in conveyancing. There are many legal transactions in which the partici pation of the Notary is compulsory, e.g. in the sphere of real property. He certifies documents which have been drafted by the Rechtsanwalt and advises the parties thereto as to its contents. It is possible in some parts of Germany to be both a Notary and a Rechtsanwalt. Legal training is regarded as a distinct advan tage when applying for executive positions in government and municipal appointments and even in business. Lawyers are employed in these capa cities much more than in Ireland or even England. Ill