Being a solo commercial litigator in Switzerland, is this even possible?
From time to time, I am being asked whether it is even possible to handle big commercial litigations as a solo practitioner. What is especially interesting concerning this question is that it is not only put to me by lay people, but also by lawyers, especially by in-house counsel. For this reason, I think that it might be of interest to briefly explain in this post why I think that, in Switzerland, it is quite possible to being solo, but to still handle important commercial litigations.
There are, in my opinion, a number of distinct features of commercial litigations before Swiss courts, which make it possible for solo practitioners to handle such litigations, regardless of the importance of such litigations in terms of their value in dispute and complexity. Regarding such features, the following ones come to my mind, in more or less random order:
(i) Under the rules of the applicable Swiss Civil Procedure Code (the “CPC”), which govern all commercial litigations before Swiss courts, there is no such thing as pre-trial document discovery or document discovery during a trial. Although the CPC includes a provision pursuant to which documents have to be produced, the Swiss commercial courts follow a very long practice, according to which requests for the production of documents are dealt with on a very restrictive basis only. Actually, having practiced the law in Switzerland for twenty years, I have never been involved in a commercial litigation before a Swiss court in which a party would have been ordered by the court to produce a document, let alone a number of documents. In Switzerland, the basic assumption and approach with regard to commercial litigations is still that a party is, in principle, supposed to build and present its case on the basis of the documents available to it. Although, as mentioned, requests to produce documents are not excluded per se, such requests have to be, inter alia, specific and targeted towards a limited number of documents in order to have any chance to be granted by Swiss commercial courts. Requests that do not meet these and certain other requirements will not be granted by Swiss commercial courts. Therefore, as a Swiss commercial litigator, it is never necessary to deal with US-style mountains of documents, regardless of the complexity of the dispute.
(ii) Under the CPC, there are also no pre-trial depositions with multiple witnesses to depose. Swiss commercial litigations do not know any pre-trial depositions at all. To the contrary, under Swiss law, it is, in principle, forbidden to counsel to contact any witnesses, because such contacts are, save for exceptional circumstances, qualified as witness tampering. Hence, the time-consuming practice know in, particularly, the US to make lengthy depositions of a multitude of potential witnesses is unknown in Switzerland.
(iii) Swiss commercial litigations do further not know any US-style motion practice. Contrary to the US system, where a party can, in the sense of a litigation tactic, shower a counterparty with lengthy motions, commercial litigations before Swiss courts follow a very strict script, which is essentially set forth in the CPC and does, in principle, not allow for exceptions. In Swiss commercial litigations, the proceedings are in the hands of and conducted by the court, and Swiss commercial courts tend to structure the proceedings before them strictly and efficiently, not allowing parties to shower a counterparty with voluminous unsolicited briefs. In commercial proceedings before Swiss courts, there are – from the beginning of the litigation to its conclusion – regularly only two exchanges of written briefs, namely, from the claimant’s perspective, the statement of claim and a rejoinder (“Replik”, in German) and, from the defendant’s perspective, the statement of defense as well as a surrejoinder (“Duplik”, in German). In principle, that’s it.
(iv) In Swiss commercial litigations, there are no cross examinations of witnesses or experts. Pursuant to the CPC, witnesses and experts are, in principle, examined by the court, not by the parties’ counsel, and although the CPC and the practice of Swiss commercial courts allow the parties’ representatives to put certain additional questions to the witnesses or experts, this does by no means amount to a US-style cross examination. Actually, the entire approach to the examination of witnesses and experts in Switzerland is very different from the approach in the US, where the actors in a commercial litigation strive to really test and regularly challenge the credibility of a witness or expert. This is basically not done in Switzerland. Even though Swiss commercial courts will put to witnesses or experts the legally relevant questions, they will not really deeply probe into the credibility of witnesses / experts or of their statements / conclusions. Moreover, Swiss commercial courts will not permit counsel to pursue such goal. Therefore, a Swiss commercial litigator does not have to prepare lengthy lines of questions in view of performing effective cross examinations, because cross examinations are simply not done in commercial litigations before Swiss courts.
(v) Actually, an interesting feature of Swiss commercial litigations, and a fundamental difference between such litigations and commercial proceedings before US courts, is that actual trials are only rarely carried out in Switzerland. What does this mean? US civil proceedings are governed by the principle of immediacy, in the sense that all the relevant facts and evidence to make the parties’ cases are to be laid out and presented to the judge or the jurors in a trial, by means of presentations, witness examinations, etc. With regard to the decision-making process of the judge or the jurors, it is essentially the witnesses’ and experts’ testimonies given in a trial, which is relevant. Such trials can last for weeks or even months in complicated commercial disputes. This is not so in Switzerland. In Swiss commercial litigations, it is rather rare to have any oral witness or expert testimony at all. Most civil proceedings before Swiss courts are purely file proceedings, in the sense that the parties make their case in written submissions to the court, without that the court hears any oral witness or expert testimony. This has several reasons, the key reason being the fundamentally different approach to commercial litigations in Switzerland when compared to, particularly, commercial litigations in the US. Swiss commercial procedure law does not aspire to get to the bottom of the truth. It does not aspire to establish in any given case what really happened in relation to a commercial dispute. This is the reason that Swiss commercial litigations are lacking the elements of extensive document discovery, cross examinations of witnesses, etc. Commercial proceedings are structured pursuant to various, partially conflicting goals, the establishment of truth being one, but not the only goal. Swiss civil procedure law places a different emphasis on the various objectives than US civil procedure law. In Switzerland, the objectives of efficiency and personal protection (in the sense of protection against extensive inquiry) are given relatively high priority, with the result that Swiss civil procedure law is content with the establishment of some kind of procedural truth, i.e., the facts established on the basis of the limited truth-finding mechanisms available under Swiss civil procedural law. This is the fundamental reason why Swiss courts, in most cases, are content with the parties‘ written submissions in order to form an opinion on the matter at stake. To illustrate this approach, reference can, for example, be made to the Commercial Court of the Canton of Zurich, which has a longstanding tradition to invite the parties to a dispute to a settlement hearing after the first exchange of written submissions. In other words, after that the claimant filed with the Zurich Commercial Court its statement of claim and that the defendant filed with the court its statement of defense, the Zurich Commercial Court almost always invites the parties to a settlement hearing, prior to any witness or expert having been heard. Now, pursuant to my experience, in at least 2/3 of all the cases filed with the Zurich Commercial Court a settlement is reached in such settlement hearing, such cases consequently never reaching the stage of a trial in which witnesses or experts are examined. Of the approximately 1/3 of all cases filed with the Zurich Commercial Court, which are not settled in the mentioned early stage, but which survive such stage, only a minority is decided on the basis of oral witness or expert testimony, pursuant to my experience. Under Swiss law, judges are allowed to decide commercial disputes on the basis of what can be referred to as an anticipated assessment of evidence (“antizipierte Beweiswürdigung”, in German), in other words, the judge’s conclusion, before having heard any witnesses or experts, that his or her assessment of the evidence presented to him or her up to this point in time will not be changed anymore by the examination of any witnesses or experts. Pursuant to my experience, such anticipated assessment of evidence is applied quite often by Swiss commercial courts. In summary, for the reasons set forth above, a Swiss commercial litigator never has to prepare for and assist at weekly or even months-long trials, what would, obviously, require an enormous amount of time.
(vi) Another difference between US and Swiss commercial proceedings is based on the difference between the common law system on the one hand and the civil law system on the other hand. In other words, although Swiss commercial litigators also have to do a certain amount of legal research, they do not have to conduct very lengthy searches for precedents, as has to be done regularly by their US counterparts, for example. Swiss commercial law is rule-based, which generally guides the experienced user of the law rather quickly to the relevant legal provisions and to the case-law on these provisions. Moreover, commercial litigations before Swiss courts are governed by the principle that it is the court itself that has to know and apply the law (iura novit curia). For this reason, it tends not to be of paramount importance before Swiss courts to explain the relevant legal situation in particular detail to the court.
(vii) Finally, in terms of technical resources, modern technologies make it possible for solo practitioners in Switzerland to deal with even complex commercial litigations, given that, for example, all the statutory provisions of Swiss law as well as the determining jurisprudence of the Swiss Federal Supreme Court are accessible online, and that, to give another example, printing jobs can be outsourced easily.
As mentioned at the beginning of this post, other than in the US, certain distinct features of commercial litigations before Swiss courts make it possible for solo practitioners to handle such litigations, regardless of the importance of such litigations in terms of their value in dispute and their complexity. I hope that this post gives a short overview of such features, which is worthwhile reading.
PHH, Zurich, 15 January 2018 (www.haberbeck.ch)
The information contained in this post is for general informational purposes only and is not intended to constitute legal advice. Readers of this post should not take any actions or decisions without seeking specific legal advice.
Rechtsgebiete: Allgemeines Vertragsrecht