Comparing how American process works to its German counterpart highlights five ways in which our own system is defective:
1. In Germany, parties must tell judges about their claims at the outset. In their complaints, German plaintiffs are required to state facts that support their claims. They must identify evidence upon which they plan to rely; defendants, in turn, must substantiate denials with facts where possible. In the United States, by contrast, plaintiffs reveal few facts and identify little evidence in their complaints. Before 1938, they had to at least state facts.
2. German judges "live" with cases from the start. Judges, not defendants, are the first people to read plaintiffs' complaints. Upon filing, judges review complaints to make sure that they meet procedural requirements and determine whether the facts alleged, if proven, would support judgments. Only after judges have reviewed complaints are they served to defendants -- baseless complaints ordinarily don't get this far.
In the United States, on the other hand, judges do not review complaints before service or often at any time. After service, on defendants' request, they may review specific aspects, but this post-service review, in comparison to its German counterpart, is protracted and expensive. A requirement (embodied in two recent Supreme Court decisions, Twombly and Iqbal) that there be a finding that asserted claims are legally "plausible" was met with vociferous criticism.
3. In Germany, judges and parties cooperate to frame issues. When German judges authorize complaints for service, they generally direct parties to go into conference together. In these conferences, judges confer with both sides -- not just with both sides' lawyers but with the actual litigants themselves. In discussions with the parties, they frame the issues that they will need to decide to judge cases. They clarify what plaintiffs seek, they identify which legal rules might apply, and they establish which facts are material and in dispute. Parties are under a statutory duty of cooperation to answer judges fully and to substantiate claims with offers of evidence where appropriate.
In the United States, judges often do not hold early pretrial conferences, and when they do, these conferences are typically used to set deadlines rather than frame issues. Rarely do they require the litigants to be present. Parties are under no duty of cooperation (although the Federal Rules Committee is currently considering one).
4. German judges take evidence only on disputed issues of material fact. Judges do not waste time with evidence that they do not need for their decisions -- i.e., evidence that does not contribute to resolving a disputed material issue. For issues that are material and in dispute, parties may ask the court to take evidence. Judges rule on these requests in written orders, in which they determine specific issues on which evidence may be taken from particular witnesses. They take evidence only in court. Judges are subject to a statutory duty of clarification which requires that they not decide material issues adversely without making parties aware that they need to offer evidence or otherwise contest the particular point.
In the United States, in contrast, the parties themselves get to determine what evidence to seek. Without court order and outside of court, they may force their opponents to divulge any evidence that they deem "relevant" to a claim or defense. They are not limited to taking evidence regarding matters that are material and in dispute, leading to hugely expensive and time-consuming evidence-gathering free-for-alls.
5. German judges explain their decisions. German trial judges are required to explain their decisions fully -- i.e., to state the undisputed parts of the case, to set out the parties' conflicting arguments, and to explain their reasons for resolving those disputed issues as they did. In the United States, judges do justify their decisions in bench trials, but such trials are comparatively rare; juries, do not justify their decisions at all; jury verdicts leave parties in the dark.