Germany and Brazil: litigation without depositions

One thing that I have learned from being an expert witness in the U.S. court system is that there are seldom any surprises at trial. Everyone who will testify has already been deposed for 7 hours (Federal rules).

I have recently done some work on a U.S. case in which a bunch of folks in Brazil were involved. I asked the lawyers “Are you going down to Brazil to take depositions?” They responded with “We would be arrested. It is illegal to take a deposition in Brazil.” The legal system down there runs on documents, apparently. If human witnesses are going to add anything, they testify at trial and lawyers have to think on their feet for cross-examination.

It turns out that Germany is organized along similar lines (1985 article that explains the system there), though I don’t think they go so far as to imprison folks who agree to hang out and depose one another, e.g., for a U.S. case.

If we want to see Perry Mason-style drama, maybe we need to visit a courtroom in Brazil!

3 thoughts on “Germany and Brazil: litigation without depositions

  1. Brazil is a civil law country, which are organized along inquisitorial rather than adversarial grounds — so it is the judge rather than the lawyers who run the show, a trial is not a focused event on a specific date & Perry Mason moments are probably nonexistent. Brazil also does not have an effective legal system governing private law, i.e., matters which don’t involve the government, in the sense of producing predictable results within a reasonable amount of time so whatever the rules may be are pretty much irrelevant to how the system works. I have never heard of anyone choosing a Brazilian forum for settling a dispute (Germany either for that matter). The typical choice for those outside of the US is Britain which has a legal system that is reasonably predictable and efficient. Britain does not have depositions but they have witness statements and cross examination, which is a system that works ok.

  2. Litigation without depositions is also the norm in criminal law practice, both under federal law and in Ohio. Lots of on-feet thinking during trial.

  3. Funny, there was a bit of a stir recently when a couple of conservative judges declared that they thought that removing discovery from smaller federal cases would be a significant improvement. Not sure if that meant depositions or just document-retrieval activity.

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