By Stephanie Reidlinger
Published: 12 January 2012
Just as American tort litigation varies across a wide spectrum of legal doctrine, damages measures and evidentiary thresholds, tort litigation in Europe is as divergent as the continent itself. With the vast number of Europeans conducting daily, multilingual business deals, traversing centuries-old roadways and branching business ventures onto the ever-expanding global and electronic marketplace, personal or pecuniary injury is almost inevitable. Whether parties are conflicted over a cross-continental tortious contractual interference or pursuing a personal injury claim arising out of a sideswiped Vespa, European tort litigation is as fascinating and complex as it is historical.
As is expected, European tort litigation involves intricate conflict of laws issues. With fifty countries operating in close proximity to one another, European civil courts are almost certainly inundated on a regular basis with diversity in terms of citizenship, language and legal codes. As such, the European Parliament and the Council of the European Union declared the controlling law in any diverse tort action to be that of the nation in which the injury occurred. Thus, a personal injury action occurring in Paris between a citizen of France and a citizen of Italy would be decided under the French civil code. However, the Parliament and Council carved out an exception to this general rule in any tortious situation whereby the injury is substantially tied to the nation from which the defendant hails.
The European civil justice system varies widely from that which Americans are accustomed to and represents the evolution of civil codes derived from the sixth century Byzantine Empire. Principles codified in the Justinian Code remain firmly entrenched in Europe’s civil system- a system designed to avoid unnecessary legal contradictions and conflict. These concepts of civil law are in place throughout the vast majority of the continent as well as most of South and Central America and parts of Africa and Asia. Louisiana continues to implement the European civil code as well and remains the sole U.S. sovereign state to do so. The European civil system depends not upon common law judicial interpretation but primarily on legislative codes and succinct legal rules. Juries are rarely used except in criminal proceedings involving the possibility of significant loss of liberty. As opposed to the American common law system, civil code judges are not bound by precedent and are free to decide cases based on their interpretation of the matter.
The American tort lawsuit landscape practically embodies the word ‘adversarial.’ American tort lawyers are bred to seek the highest settlement or verdict for their client while simultaneously maneuvering the rules of evidence and discovery to gain the best possible outcome. American judges maintain a neutral role in the matter and are called to the bench after decades practicing law in the field. In stark contrast stands the European system which does not seek to establish a competitive antithetical climate but rather one of inquisition and noncompetitive fact finding. The concept of hostile witnesses and cross-examinations are virtually unknown to European civil lawyers. Within the context of European tort litigation, the judge takes a much deeper investigative role than would ever be appropriate in American common law courts and is free to question witnesses and appoint his own experts to testify on highly technical or scientific matters.
In summation, tort litigation in Europe is predominantly governed by ages-old principles of civil law and justice handed down from the ancient Roman era and the Justinian Code. The system is highly non-adversarial and involves an investigation from not only the litigants’ legal representatives but the judge himself- a notion unheard of in the American system. The nation within which the harm occurred generally applies its tort laws to the case as diverse parties are quite common in European systems. The European tort system represents complex legal notions steeped in history.
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This is a great article because it showcases the difference in legal philosophy to illustrate how the legal systems in the U.S. are different. Reading this explains to a large degree why certain attitudes between the opposing sides in the American system are or can be contentious. In Europe, which already has the reputation of being easy going, the opposing sides are not as contentious and willing to go for the kill so to speak.