The critical importance of writing skills in Swiss commercial litigations

It caught my attention that two recent, consecutive issues of the Swiss Bar Association’s monthly journal Anwaltsrevue contain articles, written by Swiss court personnel, on the drafting of legal briefs. The first article, written by Andreas Schneuwly, clerk at the Commercial Court of the Canton of Aargau, has the title “Lange Rechtsschriften – Wieso? Und was tun?” (English translation: Lengthy legal briefs – Why? And what to do about it?) and was published in this year’s October issue of the Anwaltsrevue (10/2019, at 443 et seq.). The second article, written by Kilian Meyer and Daniel Sutter, judge and clerk, respectively, at the High Court of the Canton of Schaffhausen, has the title “Die überzeugende Rechtsschrift – Anregungen aus der Justiz” (English translation: The convincing legal brief – Food for thought from the courts) and was published in this year’s November / December issue of the Anwaltsrevue (11/12 2019, at 468 et seq.).

Is the publication of the above-mentioned articles in rapid succession, which both contain very interesting input reading the drafting of legal briefs, a pure coincidence? Maybe, but there seems to be a need in Swiss courts to give advice to the legal profession regarding the drafting of legal submissions. This need may well be justified. It is probably quite widespread among Swiss lawyers to regard litigation before Swiss courts as a secondary occupation accessible to every lawyer and not as an actual specialization, which may be the reason why it is, currently, not possible to become a bar-certified specialist for litigation in Switzerland. In my opinion, such an attitude is problematic, since litigating before Swiss courts is not only technically demanding, but also challenging with regard to the very important written presentation of the client’s point of view.

The above-mentioned authors Kilian Meyer and Daniel Sutter state, among other things, the following in the present context (Anwaltsrevue 11/12 2019, at 468):

“Die Rechtsschrift hat … nicht nur den formellen Anforderungen zu genügen. Sie soll vor allem eines: Das Gericht vom dargelegten Standpunkt überzeugen. Dies ist eine anspruchsvolle Aufgabe, welche die Anwältinnen und Anwälte im Rahmen einer sorgfältigen und gewissenhaften Berufsausübung zu erfüllen haben. Ob das gelingt, hängt nicht nur von der Qualität der Argumente ab. Eine Rolle spielt auch die Art, wie diese vorgetragen werden.”

(English translation: A legal brief has… not only to meet the formal requirements. It must above all convince the court of the point of view expressed. This is a demanding task which lawyers have to fulfil within the framework of a careful and conscientious exercise of their profession. Whether this is successful depends not only on the quality of the arguments. The way in which they are presented also plays a role.)

As with other specializations, an important amount of practice is necessary to attend a high level of professionalism in the context of drafting legal briefs. And drafting written submissions is, as mentioned, crucial in commercial litigations before Swiss courts. In Switzerland, commercial disputes lawyers write much more than they orally plead cases. The image of the American trial lawyer, who presents a case in a rhetorically brilliant manner to a jury, has nothing to do with the practice of commercial courts in Switzerland. At Swiss commercial courts, the proceedings are as a general rule predominantly conducted in writing, so that the life of a commercial litigator practicing in Switzerland consists primarily of studying files and drafting submissions. Why is that so?

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 are 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 the approach described above, reference can, for example, be made to the Commercial Court of the Canton of Zurich (Zurich Commercial Court), 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 (see in this regard, for instance, my article on settlement hearings before the Zurich Commercial Court, published on 6 January 2014 in Jusletter). Now, pursuant to my experience, in around 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 small 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, namely that many commercial litigations before Swiss courts are decided exclusively on the basis of written submissions, writing skills are crucial in commercial litigations before Swiss courts, something that is, as illustrated by Andreas Schneuwly, Kilian Meyer and Daniel Sutter in their above-mentioned articles, not to be underestimated by commercial litigators practicing in Switzerland.

Philipp H. Haberbeck, Zurich, 19 December 2019 (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. Any mandate is subject to the full execution of an engagement letter.

Rechtsgebiete: Allgemeines Vertragsrecht