Comparative Perspective

1. Major differences between U.S. civil procedure and other systems

   1. Jury trial: Available of right in most American civil litigation in federal and state courts; not used in most other common law systems except in very limited types of cases. Not used in civil la systems in civil cases.

   2. Broad discovery, including lengthy oral depositions and broad documents production. Other common law systems have much more limited authorized discovery and in practice do not use it extensively. Civil law systems have little or no discovery as such. Intensity of judicial probing of facts varies widely among different systems

   3. Notice pleading. Other systems require "fact pleading."

   4. Liberal use of experts engaged by parties. Other common law systems generally make less use of party-engaged experts Civil law systems make less use of experts and rely primarily on court-appointed experts.

   5. Strong role for advocates in presenting evidence. Other common law systems accord similar role. Most civil law systems allow advocates only to supplement fact inquiries.

   6. Limited appellate review of fact determinations, even in judge-tried cases. Other common law systems similar. In civil law systems review of fact determinations is on the same comprehensive basis as review of legal determinations, with deference in case of witness credibility.

2. Harmonization

   1. American Law Institute-Unidroit project for Principles of Transnational Civil Procedure for commercial disputes. Now in Discussion Draft No. 4. Project to conclude in 2004.

   2. Basic Features:

      1. Fact pleading

      2. Limited discovery

      3. Court management of proceeding

      4. Strong role for advocates

      5. Party testimony fully competent

      6. Party-engaged experts as well as court-appointed

      7. Forum rule on composition of court, including jury.

   3. Responses abroad

      1. Other common law systems generally sympathetic

      2. Civil law systems wary, but hopeful about direction. Both civil law and other common law systems deeply fearful of jury trial

      3. Post-Communist and Developing Countries more or less positive

      4. Potential application in international arbitration

   4. Responses here

Guarded approval, so long as limited to commercial disputes and not applicable to personal injury, civil rights and consumer claims