567 / 736
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