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Comparative US and Greek Civil Litigation Analysis

"A Tale of Two Cities" written by Charles Dickens is a novel that has much to say about justice. There is a famous passage: "It was the best of times, it was the worst of times, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was a season of Light, it was a season of Darkness, it was the Spring of hope, it was the Winter of despair, we had everything before us, we had nothing before us....". Although the events in the novel are far more tragic, the above could easily be said of the emotions of anyone who has been through a long and grueling lawsuit. There are many wide ranging definitions and disputes as to what justice is, but most agree with the maxim that "justice delayed is justice denied".

Amidst the recent financial turmoil in Greece it can become lost that justice system and legal reform are important components of any Greek recovery. There has been wide criticism of the Greek justice system as part of the "structural reform" many say is needed in Greece. There have been numerous studies and articles, as well as an overwhelming amount of anecdotal accounts, of the delays, lack of efficiency and lack of predictability of the Greek legal system.[1] The "Troika" lenders, in the widely disliked in Greece Memoranda, specifically identified the need for legal system - and specifically civil procedure reform in Greece.[2] Indeed, leading up to the recent election there were several proposals to revise the Greek Code of Civil Procedure - which met with opposition from certain members of the Greek Bar and these proposals and opposition continue.

And yet, despite a great amount of dispute on the nature and need for reform, certain indisputable and basic truths exist, regarding which I need not cite to the legion of supporting sources and literature:

•1. Small businesses (SME's) are critically important in developing an economy and creating jobs; and

•2. Small businesses are more susceptible to regulatory and litigation risk and are more risk averse to such actual or perceived risks.

Indeed, not only are small businesses less able to cover the costs of litigation but they are less likely to be able to anticipate and react to unexpected litigation risks and exposures and thus for them legal risk may be existential - a risk to their very existence. Thus, predictability as to the outcome, along with efficiency and timely disposition, is also critical. In addition, for small businesses, litigation costs and expenses are more likely to result in damages and liability exposure to the owners and investors themselves - even beyond loss of the capital investment they have scraped together to put into the new venture.

This paper will not deal with all the start-up business risks and/or business regulatory risks even, but rather only with the risks and burdens which are inherent in the embroilment of a person or business in the process of litigation. I am also cognizant that, as the Greeks say, "The good lad knows more than one path". There are many paths to justice and I do not want to engage in a debate as to which system is better - common law or civil. I could not possibly do justice to the tremendous scope of scholarly literature that has been spent comparing civil law vs. common law and their different historical development and jurisprudence. Suffice it to say, I recognize that it is an easy answer to say that the differences in civil procedure which I identify are attributed to the differences between the civil law (inquisitorial) vs. the common law (adversarial) legal systems and their divergent fundamental approach. With all due respect to Aesop this argument against attempted reconciliation is "low hanging fruit". The distinction, while important, must not prevent or stifle comparative analysis and discussion.

I will, moreover, be cognizant in my comparison of three critical hallmarks of an efficient legal system: 1) efficiency/lack of delay; 2) predictability; and 3) fairness. Finally I will pose the question of whether a hybrid system is possible and/or desirable to further the above goals.

A good way to do this, in my view, is to compare two litigated cases, one in Greece and one in the US, as I have experienced them so as to see what, if anything, can be learned. Reform must be analyzed from the ground up. This perspective, looking at what a business person/litigant may face, gives us a ground-level, reality-based understanding of what may be legal and/or judicial system obstacles and/or disincentives to investment. I will then take the observations we have made and examine whether a hybrid-system is desirable - one which combines certain common law elements of our US system with the civil-law system of Greece. As a brief part of this analysis I will pose the question of whether emerging European Union law should lead to an evolution of a hybrid system of civil procedure applicable across the member states civil procedural codes.

This paper will deal only with the civil procedural aspects of litigation - and not with the likely accompanying necessary modifications and/or changes to the structure of courts and judicial systems and/or roles of lawyers and judges.


I have decided to utilize two relatively recent lawsuits I have been involved with, taking liberties however to change certain facts and backgrounds so as to fully preserve confidentiality and further the aims of the analysis. I have chosen as the model for the US litigation a case in which I represented the plaintiff. This is because I think it is appropriate to examine how a foreign party may seek and obtain justice in the US legal system. I thought, with regard to litigation in Greece, to select the case of a client I represented as a defendant, so that the real life experience of a foreign investor being brought into Greek litigation are comparatively examined. These are my honest and practical observations and are presented as such. In advance, I beg the readers' forgiveness in that I will certainly omit to discuss numerous other applicable civil procedural rules under both the Greek and US federal and/or state Rules of Civil Procedure. I will also not spend a lot of time on appeals and appellate procedure, in that I want to focus in this paper on the litigation process and the participants' experience through trial. I will also not focus on contractually mandated arbitration provisions, preferring to stay on the topic of civil procedure in a court litigated case.


In the US case my client was an executive of a major Greek company. Promises were made to him in a long-term contract that he would head a US subsidiary of the Greek parent and in reliance on this he uprooted his family and moved to the US. Shortly after this he was terminated by the Greek parent company. For purposes of our analysis and uniformity, both diversity and minimum contacts of the Greek parent corporation will be deemed to exist in Pennsylvania, so that both subject matter and personal jurisdiction existed in the federal court for the Eastern District of Pennsylvania.[3]


In the Greek litigation my client a US manufacturer was sued in the Greek courts over a contract in which the Greek buyer unilaterally refused acceptance of the manufactured goods, breached the contract and sued for damages. Again, for purposes of our analysis, the Greek Plaintiff brought the case in the Athens Multi-Member Court of First Instance, given that the damages sought exceeded 250,000 Euros (as per Greek Code of Civil Procedure, Articles 12-18).


In the US case, Federal pleading standards are set in Rules 7, 8, and 9, generally, of the Federal Rules of Civil Procedure (F.R.C.P.). Rule 7 limits initial papers filed with the court (identified as "pleadings") mainly to a Complaint; Answer; Answer to Counterclaim; and 3rd party Complaint. Rule 8 provides the "General Rules for Pleading". These rules require a) "a short and plain statement" of the grounds for the court's jurisdiction; b) a short and plain statement of the claim showing that the pleader is entitled to relief; and c) a demand of the types of relief sought. Rule 8 (d) stresses that "each allegation must be simple, concise and direct" and that "no technical form is required". The above does not require the parties to plead their evidence and trial proofs but only facts which (if later supported and proven) show, ab initio, entitlement to the legal relief requested. Rule 8 (b) essentially identifies the same "short and plain statement" rule for defenses stating also that, at the "pleading" stage, general denials or admissions are for the most part sufficient. Rule 8 (c) identifies certain "affirmative defenses" which must be set forth specifically - but, again, does not require pleading of the evidence or proof of such defenses. F.R.C.P. Rule 9 supplements Rules 7 and 8 by requiring greater factual specificity (but again not the evidence and proof) with regard to pleading fraud, denying conditions precedent, and special damages.

As a result of the above procedural rules, the federal Complaint in the US case was 18 pages long consisting of a) identification of the parties (4 pages); b) core facts in chronological order (9 pages); and c) the legal Counts [i.e. Count I Breach of Contract; Count II Promissory Estopell; Count III Fraud] which were approximately 5 pages. The averments in the Complaint are in discrete, separately numbered paragraphs. Argument is improper pleading and not permitted nor is impertinent or scandalous matter.

Before the Complaint was filed in Federal Court we were cognizant of F.R.C.P. 11 which provides for sanctions against attorneys who file lawsuits for a manifestly improper purpose (to harass) and/or who assert claims with no reasonable basis in existing law or which likely will have no evidentiary support. This does not mean that in the case of conflicting evidence or testimony that you must choose to disbelieve your client. Nor does it mean that you cannot make a creative and cogent argument for extending, modifying or re-interpreting existing law. It simply means primarily, that you cannot base your claim on law and facts that you clearly know, or should know, do not exist.

Turning to the Greek case, we examine the Complaint filed in the Athens Multi-Member Court of First Instance against our US-based manufacturer client. The Complaint is 63 pages of averments none of which are numbered. The Greek Complaint reads like a US legal brief with paragraphs of varying size and scope each of which contain several unrelated factual propositions. Interspersed within the Complaint is significant argument along with a generous dose of adverbs and adjectives. The legal bases are not identified separately by counts and in separate paragraphs, but are found scattered thought the Complaint, including at the beginning, middle and in a section called the "legal part". Irrelevant, impertinent, and immaterial discussions, observations and factual assertions are scattered throughout. Upon a first reading, inter alia it becomes evident to a US litigator that a good portion of the Greek Complaints' assertions (in a similar US breach of contract or fraud case), could be stricken as impertinent, irrelevant or scandalous matter or pure "argument" - right at the start, based on the foregoing US pleading rules.

The Greek Complaint begins with an introductory section, identifying the parties (approximately 1 page); a portion containing undifferentiated unnumbered paragraphs of mixed legal and factual allegations (of about 58 pages), and a damages demand section of approximately 3 pages. One of the first things I notice as a US litigator is that the facts which support each legal claim or count are not identified clearly under separate categories of counts. Moreover, one has to search to 1)identify specifically the legal claims are asserted; and 2)work through each averment in the Complaint to figure out and divine which factual assertions support each count asserted. There is also a lot of extraneous argument and data and evidentiary facts.

I observe that it took me substantially more time to review and break-down the Complaint against my client in the Greek case - as compared to the US litigation. I had to search in the Greek case quite a bit for the facts which establish jurisdiction, for the legal bases, and for the facts which supported the prima facie elements under each legal claim.

My opponent in the US litigation, however, only had to look at the beginning of my pleading which separately set forth the facts establishing the court's subject matter and personal jurisdiction. Moreover, in the US litigation, each count (claim) was separately stated and under each such count were averred the facts establishing the prima facie elements of each such count. This requirement and focus on clearly setting forth only the facts establishing the elements of each count is important in that US litigation procedure has a procedure to dismiss cases or claims, in whole or in part, at the pleadings level which Greek civil procedure does not.


After filing and service of the US Complaint[4] and close of the pleadings (and provided no outstanding motions to dismiss, discussed below) the Federal Rules of Civil Procedure require the parties to confer as to discovery deadlines, scheduling and to make other pre-trial disclosures under Rule 26. Pursuant to that Rule, the parties must confer and submit a Joint Conference Memorandum to the assigned judge, which Conference Memorandum must be received by the judge before the scheduling conference set by Rule 16. In the Federal court for the Eastern District of Pennsylvania a judge is assigned electronically and randomly upon filing of the Complaint. It is also noted that, in the Eastern District of Pennsylvania, as in most federal courts, all filings after the Complaint are done electronically. See Rule 5.1.2 of the Local Rules of the Eastern District of Pennsylvania, (setting forth the electronic case management/case filing system, (CM/ECF) used by the federal courts).

The scheduling Conference under Rule 16 must be timely scheduled and result in a Scheduling Order by the court at the earliest 90 days after an entry of appearance by any Defendant or 120 days of service. In the US litigation, within 40 days of service of our Complaint the court had already scheduled a Scheduling Conference with the assigned judge. Pursuant to that Conference the judge determines whether the Defendant's Answer has been filed, as required by the Rules within 21 days of service of the Complaint. The judge in our case then entered an Order setting forth 120 days for discovery (interrogatories, document requests, depositions); a deadline for expert reports (equal to the discovery deadlines); a date 30 days after the discovery as a deadline for filing Summary Judgment Motions; and a trial date 6 months from the date of the Scheduling Conference Order. It can be observed from this that the role of the judge in common law jurisdictions is not as passive as some may think.

I note that in our US case, since our allegations clearly identified the prima facie elements of each "Count" and since we had pled the facts for jurisdiction clearly, the Defendants did not file a Motion to Dismiss under Rule 12 of the F. R.C.P. Had such a Motion been filed, however, as a general rule it would have been disposed by the Court within a time period (in the Federal Court for the Eastern District of PA) between 3 weeks to 4 months on average. While such a motion may delay proceeding to discovery and thus trial, with the availability of this motion many weak, meritless and imprecise claims, pleadings and entire cases are dismissed at this stage for either with or without prejudice to refile.

In the Greek case once the Complaint is filed under Greek Code of Civil Procedure, Article 226, the matter is scheduled for trial and placed on a trial list with a group of other cases scheduled to be tried on that day. Article 226 of the GCCP. Generally, cases before the Multi-member Court of First Instance in Athens have been scheduled for trial between 2-4 years after the filing of the Complaint. In the Greek case at issue, the Complaint against our client was listed for trial as case No 22 on a trial list with a date 2 years and 3 months after the Complaint was filed. We knew, however, that the list for trials on that date has an "adjourned" trial case list before it. Therefore, the case could easily be 27, or 28th, for example, in line for trial on that date. Given that the trials run until 3:00PM it is questionable whether the case will be reached on that date. If is not reached on that day it will be placed on a list of adjourned cases for a subsequent hearing date, months later. In that second list, the case will take priority as an adjourned case over the cases regularly scheduled to be heard on that date.

There is also the possibility of one adjournment (which we call a continuance in US litigation) for one time only for substantial or good cause. Article 241. If the attorneys do not show up the trial is mandatorily continued for a new trial date within 90 days, something that would not happen in the US courts without serious cause and without sanctions. I do note however that upon motion by opposing counsel the Greek court may impose a fine up to 400 Euros upon attorneys who fail to show up or delay trial. Article 241.2. This seems less serious than potential US sanctions to me. The case may also be adjourned due to a Counterclaim (filed 30 days before the trial date, Article 268), or due to pending criminal proceedings. Article 250. Accordingly, it can take years after the filing of the Complaint for a Greek civil case to be heard at trial. With the US case, and with most cases in the Federal Court System (barring a lengthy Summary Judgment decision period or extended complex discovery), most civil trials are reached within one year.

However, what stands in greatest contrast is that less than 5% of all cases filed in Federal or State courts in the US go to trial. In Greece no cases are dismissed before trial and very very few are settled.


Pursuant to the Greek Code of Civil Procedure a case cannot be dismissed before trial. In both Federal and State US Civil Procedure, a case can be dismissed before trial in at least 2 main ways. 1) Motion to Dismiss (Rule 12), at the close of the pleadings (as above stated); and 2) Summary Judgment Motion (Rule 56) at the close of discovery. Both are pre-trial dismissals. For example a Motion to Dismiss at the close of the pleadings may be filed under Rule 12 as above stated and this will weed-out complaints which fail for lack of jurisdiction, legal grounds, specificity etc.... No such motion exists in the Greek legal system[5] . Objections to the Complaint (enstases) exist in the Greek Code of Civil Procedure.[6] For example: Objection based on specificity (Article 216); personal jurisdiction, (Article 263); subject matter jurisdiction, Articles 13-21; venue (Article 22); standing (Article 63, 64) etc... and many other procedural and substantive defenses and objections are available under Greek Civil Procedure. However, they cannot cause the case to be dismissed before trial. These "preliminary objections" together with all other procedural evidentiary and substantive defenses, are filed in the Defense Submissions which must be filed 20 days before the date of hearing (30 days if there are counterclaims). Article 256. In such cases, the case will not be dismissed pre-trial and both the substantive and procedural defenses will be heard at trial. In this sense the Greek trial may be likened (if we are comparing it to the US) to a hearing on a Motion to Dismiss and Summary Judgment Motion argument; combined with 1 witness from each side being questioned live; together with reference to witness statements (depositions in US/affidavits in Greece); and reference to the documents of record. [I will discuss Greek trials later].

Applying the above procedural rules to the two cases we are using as examples, in the US case, as above stated, within 3 months of the filing of the Complaint we had a Scheduling Order which fixed a deadline of 120 days to take discovery and set a fixed trial date thereafter, all within 10 months of filing the Complaint. Since there was no Motion to Dismiss under Rule 12 an Answer with Counterclaim was filed. The Counterclaim was that, in brief, our client was a bad and ineffective executive. We denied this Counterclaim and the case proceeded to discovery. Given that there were only 120 days for discovery, both sides issued Interrogatories (written questions to parties to be answered under oath - limited to 25), Rule 33 of the F.R.C.P., and Requests for Production of Documents, Rule 34, F.R.C.P.

In addition, during the US litigation discovery period, parties may schedule depositions under Rule 30. Such depositions allow the parties to question potential witnesses under oath with a stenographer recording their knowledge of events and potential trial testimony - and this is done outside the presence of the court, by the attorneys themselves.

In this way all relevant evidence must be produced before trial and there are no surprises. The discovery process also provides the opportunity for the Defendant to file another pretrial Motion called a Summary Judgment Motion, under Rule 56. The Summary Judgment Motion must be filed before trial and at a time so as not to cause delay of the trial. Just as the Motion to Dismiss weeded out complaints which, even assuming the facts on their face were true did not state a case under applicable law, the Motion for Summary Judgments looks at all the facts developed by the parties in a discovery record and asks the following question: Has the Plaintiff set forth sufficient admissible evidence to support his legal claims? (i.e. is there evidentiary backing on the record as to each element of the legal claims?). The Summary Judgment Motion does not resolve issues of credibility - that is for the court as fact finder (or sometimes jury in the US system).

The Summary Judgment Procedure is made possible because of discovery. While discovery delays the matter and causes additional expense and procedure, it allows the evidentiary record to be reviewed by the court before trial so that a great number of cases where there is not sufficient evidence for a trial are dismissed. This is why, for the most part, only 5% or less of the Federal civil cases go to a trial. A trial in such cases is a determination and assessment of the credibility and quality of the evidence and witnesses by the court, and by the time the case goes to trial, cases with insufficient legal bases or insufficient evidentiary support are dismissed pretrial. (Of course, an appeal lies after a case is dismissed on Summary Judgment). However, the above process, of having two pretrial Motions and especially the Summary Judgment process, allows for the creation of a substantial amount of case law with regard to each legal claim - which case law sets forth specifically what a) one needs to plead as elements of that claim and b) what evidence must be on the record to support such a claim. Such a wealth of precedential decisions, (searchable and identifiable for each legal claim) creates a significant amount of predictability and transparency as to the potential results of litigation.

It also serves another critical function, that of promoting settlements. Indeed the majority of US civil cases are settled before trial, something that stands in stark opposition with litigation in Greece. Taking as an example our US litigation, written discovery and depositions readily established that there were numerous conflicts in the evidence as to whether the contract was breached by the defendant and/or whether our client failed to fulfill his contractual duties as executive. What became clear to any experienced litigator was that, while both sides could claim that their evidence was more substantial and credible, neither side could claim that the other had not produced any evidence to support their claims. Accordingly, the Defendants in our case decided not to pursue a Summary Judgment Motion. This meant that a judge or jury would decide which evidence or witness was more compelling and credible based on the quality of the evidence but also in large part a) the skill of trial lawyer and/or b) the judge or jury's own predilections. In essence, especially with a jury trial, both sides were now approaching trial knowing that either side could win or lose. At this time in the litigation (and often much earlier) the Federal Judge will appoint a Federal Magistrate Judge to conduct settlement negotiations with the parties. In the US case, after both sides had worked hard in discovery to set forth the evidence in support of their claims, the Magistrate judge was able to lead the parties in the US litigation to a successful settlement - i.e. by definition, a monetary amount that made both Plaintiff and Defendant unhappy. Indeed, most US litigation, and the great majority of US litigations in the Federal courts or state courts, is either dismissed by motion pre-trial or settled. Again, antithetically, it appears that the common law judge, deemed to be more passive than the civil law judge actually has greater ability to affect the outcome of the litigation.

By this process we can see that, while the discovery process is rightly viewed by civil law practitioners as arduous, expensive and even unnecessary, the discovery process facilitates not only pre-trial dismissal but also settlement.

Returning to the Greek litigation, there are no motions to dismiss pre-trial. There is no pre-trial discovery. Article 106. The parties' briefs/submissions are required to be filed within 20 days of the trial date, Article 237, and within 30 days for counterclaims, Article 268. These filings require the parties to set forth therein their factual positions, evidentiary bases, affidavits of witnesses and supporting documentation, as well as their legal arguments. Documents to be relied upon must be disclosed. Article 450.There is only one live witness permitted Article 270. Three witnesses may be presented by affidavits and up to six witnesses presented by affidavit to rebut the witnesses identified by the opposing party in their submissions. Article 237. There are procedures by which the examination of affidavit witnesses must take place, which provide for notice to the other side. Article 237. Documents are freely admissible and attached to the submissions. Party testimony is not central to the types of evidence at trial in Greek Civil proceedings. Articles 339, 352, Greek Code of Civil Procedure. Therefore, in our Greek litigation, although parties have a duty of truth (Article 116) they are not required to provide any of their witnesses or supporting documents until 20 days before the trial - and even then, only those they intend to rely upon - not all possibly relevant documents in their possession. (See contra. Federal Rules of Civil Procedure, "Scope of Discovery" defined as "relevant" information, "reasonably calculated to lead to discovery of admissible evidence". Rule 26 (b) (1). In fact, parties to a Greek litigation can file witness affidavits submitting new witnesses as late as five days before trial. Article 237.

In the US litigation my hard work, preparation and research pre-trial affected the outcome of the case with little involvement of the court (but always under its supervision). In the Greek litigation, I feel a sense of frustration pre-trial. Although the deadline for the parties' trial submissions is months out (20 or 30 days before the trial date) there is relatively little that I can do to fully prepare and nothing I can do to dismiss the case or influence settlement. I immediately begin diligently drafting my defense submissions setting forth our counter statement of the narrative averred by the Plaintiff and setting forth our defenses (enstases) both substantive and procedural. Without knowing what live or affidavit witnesses the Plaintiff will present (until 20 days before trial or less) I begin to select our one live witness and our three affidavit witnesses. Without knowing until just before trial what witnesses the Plaintiff will produce or what they will say, I can neither prepare my witnesses affidavits nor can I select or prepare my three rebuttal witnesses. I begin assembling my supporting documents but, again, I will not know until just before trial what documents the Plaintiff will rely upon in his submissions. Moreover, I know that preparatory work on substance may be unnecessary due to dispositive procedural objections to jurisdiction, and choice of law and forum selection arguments.

In my view, because cases, by the time they reach trial have not been reduced to viable cases on the credibility and quality of conflicting evidence, the Greek judges do not have time to allow the live questioning of more than one live witness. However, this seems to me to be a poor trade off for complete exposure of truth and justice seeking. The court should have the ability to liberally see, measure and assess the credibility of all witnesses having relevant evidence - and be able do this under the truth revealing light of cross-examination. It seems to me that instituting some sort of pretrial procedure in order to gain the time and ability to allow multiple witnesses to testify live, is a good bargain. One could argue that it is antithetical that a civil law judge, vested de jure with more power to direct the case and affect its outcome, de facto, has her hands tied by having only one shot at assessing credibility, in what could be a complex case. A common law judge, presumably with a lesser role, has the power and opportunity to benefit from this.

There is a motion which can be filed under the Greek Code of Civil Procedure, but this is a motion filed post-trial. The parties in a Multimember Court of First Instance case (dispute over 250,000 Euros) may file a post trial motion within 8 days after trial arguing the application of the law and evidence presented at trial and in the submissions. This motion is positive in that it gives litigants one more shot at having the judges "get it right" but, obviously, it serves no purpose in disposing of the case pre-trial.

Therefore, looking at the above scenario, it is clear that the Greek Civil Procedure avoids the time and expense of US - style discovery and pre-trial motions. However, it is also clearly evident that the Greek case will not be dismissed pre-trial based on defects and/or weaknesses in its legal or evidentiary bases. See, for example Article 263 pursuant to which many Preliminary Objections are raised, but at trial. In addition, the Greek litigation will likely not settle before trial. There is no risk to the parties in going to trial. In the US case, the cases that go to trial are the ones which have distilled, essentially, to judge or jury determinations on credibility and contests based on the skill of the trial lawyer. This type of trial creates substantial uncertainty. Moreover, in the Greek litigation there is no motivation (or indeed sufficient bases), to evaluate settlement desirability because the other side's evidence has not been addressed and weighed by the parties well in advance of trial. Therefore, the effect of not having discovery and a pre-trial motion procedure seems to have the counter-intuitive effect of greater delay and less early resolution of cases in litigation.

Indeed, with regard to our Greek litigation, our US client, the Defendant waited over 2 years for a trial date. His submissions, filed 30 days before the trial date, provided overwhelming legal, documentary and witness testimony and evidence against the Plaintiff's case. Our client's submissions, (even after review of the Plaintiff's submissions) revealed that 1) there was clear law that the Greek court lacked jurisdiction due to an Arbitration Clause in the Contract; 2) there was a clear forum selection clause and a choice of law provision which required the application of PA law; 3)the factual evidence submitted by the Plaintiff did not come close to disproving that the Plaintiff breached the contract and that Plaintiff had refused delivery and tender of complying goods; and 4) that plaintiff had attempted to avoid his contractual obligations by asserting very vague and unspecific fraud, unjust enrichment and conspiracy counts under Greek law (AK 914,904; ΠΚ 187). In any US Federal (or State) court, a Magistrate Judge assigned to settle the case would, referring to the evidentiary record, exert substantial pressure on the Plaintiff to settle the case. Moreover, it is likely that Summary Judgment would have been granted on some claims. None of this happened or could happen in our Greek litigation.

On the date of trial of our Greek case, the trial was scheduled to take place before a panel of the Multi-Member Court between 9:00am to 3:00pm. The case was scheduled on the docket as case Number 22. As above stated, we knew however, that there were prior adjourned cases scheduled on that same date, and found out that there were 6 adjourned cases to be heard first on that docket-so that our case was effectively Number 28. As expected, our case was not reached on that day and was placed on an "adjourned cases" list, to be heard on another trial date (1 year or more later).

Anecdotally (but depending on actual variance in pending cases, which can be inquired of the Secretary of the Athens Multi-Member Court of First Instance) adjourned cases in the civil tort/contract claims part (enohiko tmima) are currently scheduled to be heard at the end of 2017, roughly 2 and ½ years after adjournment. If the Greek court ex officio continues the case due to limited time only, then currently adjourned cases are scheduled to be heard approximately 1 and ½ years thereafter.

On the date of a Greek trial (with a similar trial list of 22 cases for that day), say around 2:00PM, the court may observe that cases only up to 16 will be reached by 3:00PM. At that point, the Court will declare to the courtroom that the "pinakio", tablet of cases to be tried on that day is closed and cases 17 to 22 will be adjourned to another trial date, certainly more than one year down the road or likely more, as above stated.

Comparing this to the US system, many US courts will establish a trial list which may be, for example, 2 weeks. [Not in all cases since judges very often set dates certain for trial as well]. The cases on the trial list, let's say numbers 1-20, will be scheduled for trial during these 2 weeks in numerical order. The attorneys and the parties are "attached" for trial during those two trial weeks. Therefore, when case#3, for example, settles on the 4th day of the trial list, the court calls case #5 to commence trial either on the same day or the next day. Accordingly, all cases attached on the trial list are tried during the trial weeks. This seems to me to be a more just and efficient system, as opposed to the Greek procedure of adjourning the cases not reached on the list to a new trial list (pinakio) months later. Of course, part of the problem is that, in some Greek courts different types of cases are heard only on certain dates of the week. For example Monday may be for family cases, Tuesday for property cases, Wednesday for commercial cases, etc.... I do not see the utility of this because these cases do not necessarily need "specialized courts"- such as Bankruptcy courts in the US. Also, Greek First Instance judges, just like US Common Pleas judges should be competent to hear all types of civil cases. (It needs to be determined, and I question, whether the resources in terms of judges, chambers, etc... are available in Greece, currently, to implement the US system).

Obviously, our US client defendant was not happy to hear the news of further trial delay because, for a business client facing endless legal proceedings and legal bills, unresolved litigation feels like the Sword of Damocles hanging over his head. In the words of Charles Dickens, our client had reached his "Winter of despair".

However, even when our case is reached on the future adjourned hearing list, there is the likelihood of a further adjournment, due to our counterclaims. Counterclaims in Greek litigation are filed 30 days before the trial date. Since there is not sufficient time to incorporate the counterclaim into the main trial, as in the US litigation (where the counterclaims are required to be filed with the Defendant's Answer early in response to the Complaint and within 21 days). [Rule 12 (a) ; Rule 13)], this can cause further delay and adjournment. Article 268.

In the Greek litigation the counterclaims in our case raised issues which go beyond the facts and claims in the Complaint. In the Greek litigation, our counterclaims included contractual damage claims and fraud claims against Plaintiff/Buyer, which went beyond proof that we did not breach the contract. Under such circumstances, faced with such new claims 30 days before trial, the Greek court almost always adjourns the trial, and fixes another hearing for a later date so that such claims (very often connected) can be heard jointly or separately. Article 247. This creates further delays, even after an initial adjournment, since additional hearings need to be scheduled. See also Article 254, a further hearing scheduled when new matters or outstanding issues need to be resolved. In the US civil procedure the trial would simply continue to the next day until these matters are resolved. Problematic is the fact that under Article 254.3 there is no guarantee that the same panel of judges will be hearing the additional issues.

I will not dwell in this paper on the appellate process. I am primarily focused on the different rules of civil procedure heading to trial. However, we can readily see that there is little motivation to a losing litigant in the Greek Court not to appeal. Because the cases which are tried to a decision in the Greek courts have not been through the sieve of pre-trial motions, the decisions of the Greek courts involve a multitude of legal, substantive, credibility, evidentiary quality and quantity and technical and procedural objections. This creates not only a greater likelihood of appeals being filed but the kind of appellate determinations needed are more complex and work intensive. Manifestly, this process also substantially raises the likelihood of cases requiring de novo factual review and more orders and remands for reconsideration and retrial.

Under the US litigation system, many of the procedural specificity, and/or claim viability issues have been dealt with by the time a case reaches trial. A substantial amount of precedent in similar cases informs the process further, including substantial precedent and case law on specific "charges of the law" the judge must give the jury (if the jury is the fact finder). As a result most appeals in the US are clearly defined and are for error of law and/or errors in evidentiary rulings which are material. These appeals are more focused and can be more easily disposed of with relatively fewer remands for retrial. Moreover, US appellate law precedent provides substantial and detailed guidance on the proper interpretation of the law to trial court judges, as well as on rulings on evidence, so that both the trial judge and litigants, should they choose to appeal, have (or should have) a fairly high degree of predictability in the appellate outcome.



Too often any attempt at comparative analysis such as the above, results in arguments about which legal system is better, the civil law or the common law. In writing this paper from the practical perspective of a practitioner in both court systems, I have tried to avoid such polemics. There are indeed fundamental conceptual, even philosophical differences which have generated volumes and volumes of scholarly material. In the final analysis, however, I believe that we can ask if it is possible to reconcile some of the differences and even whether there can be developed a hybrid-system. In this regard, are there any civil law fundamental or structural impediments to some reconciliation with common law? I will not address in this paper the role of court organization and structure in preventing or impeding such reconciliation. Such a topic is simply far beyond this paper. One observation which I venture is that the fundamental distinction, that the civil law is primarily based on codes while the common law is based on court case precedent, should not preclude the development of organized, indexed Greek Court decisions on similar cases and issues. US courts, with great frequency, are enlightened on statutory interpretation by reviewing other courts' decisions on same. Even if the prior decisions of other Greek courts are not binding precedents, the development of such a bank of persuasive decisions (by specific legal claim or issue) would further the goal of transparency and predictability. Part of this, of course, would be the requirement that Greek Court decisions clearly state and articulate their legal bases and their application of sets of facts to such laws. It is recognized that civil law system judges indeed take into account prior court decisions, but in this area there are lessons to be learned from the common law approach.

There is also no question that the existence of pretrial motions and discovery in US litigation reflects the fact that the common law system is "adversarial", versus the civil law system which is usually called "inquisitorial". Again, while giving all due respect to the civil law approach, (that the judge plays the main role in the proceeding, both as to formulating the issues and determining the evidence and proof needed), there is no reason why introduction of pre-trial adversarial procedures (under the Court's supervision) cannot help the Greek judge dispose of or at least refine cases. A fundamental difference here is that, under the common law, discovery is done by the private litigants and their lawyers. In contrast, in the civil law system the judge consistent with the above stated role, has the public duty to collect the evidence and to be in charge of the evidence from the very beginning. However, again, this distinction is not as clear as it seems and perhaps can be bridged. In the US litigation system, while discovery is done by the parties outside the court, the US Court retains substantial authority and "jurisdiction" over the discovery process including scope and limitations (26 (a) (b)); timing (26 (b)); duration, method and scope of depositions (Rule 30); oversight of discovery disclosures and cooperation in discovery, including sanctions (Rule 37). As stated above, also, under the common law system, US Federal civil procedure, the court seizes control of the process from the very beginning by issuing a Scheduling Order strictly limiting the timing and even scope of discovery, in most cases. Well developed evidentiary rules act as a gatekeeper to prevent incompetent evidence from being admitted at trial. Federal Rules of Evidence, Rules 101-1103.

It must also be weighed in our analysis whether the greater reliance of common law systems on the attorneys to shape and resolve issues is an advantage in a world of cases steadily increasing in complexity and volume. Practically speaking, the civil law judge should be able to harness the role of advocates in dealing with complex cases.

While these are key differences, globalization will likely create the need for greater convergence between civil law and common law. It is a worthy purpose of any practitioner, in either a civil law or a common law jurisdiction, to use comparative law analysis to examine if either system can be improved by examining the other one. After all the goals of both systems are efficiency, transparency, predictability, fairness and ultimately justice.



I will not cover this topic in any depth because it is far beyond the scope of this paper and deserves its own extensive and dedicated focus. However, to the extent that we are comparing legal systems and asking the question of whether harmonization and transplantation of different rules of civil procedure can occur, it is instructive to see if this can occur more easily within the European Union. This is manifestly, a narrower and more focused inquiry as compared to a transatlantic and/or global comparative analysis. Additionally, there are substantial conventions, treaties and regulations linking the European Union states toward the goal of harmonization of standards, removal of trade barriers and creation of a common market. For example, Article 47 of the Charter of Fundamental Rights of the European Union, and numerous Council regulations on inter alia jurisdiction, judgment enforcement, service, cooperation on taking evidence in civil and commercial matters, payment procedures, intellectual property rights, etc.... all strongly suggest that a certain degree of civil procedure harmonization will be needed to fully enforce and implement these Treaty Provision, Directives and Regulations within the divergent national laws of the members of the EU. While, EU law may be declared to have primacy and direct effect and while the European Court of Justice is above Greek courts as the ultimate guarantor of community law application, without some harmonization on civil procedure there can be no assurance that EU law is fairly and evenly enforced. For a long time there have been continuing efforts and proposals on civil procedure harmonization in the EU, which are beyond the scope of this paper.

Moreover, in complex business or commercial litigations between different EU states and jurisdictions, the civil law judges can benefit from the common law systems' greater reliance on the knowledge and skills of the advocates.



In an attempt to develop a potential hybrid system, one may look at the Principles of Transnational Civil Procedure created and proposed by the American Law Institute and the International Institute for the Unification of Private Law and published in 2004. In the preface the authors headed by Professor Geoffrey C. Hazzard Jr., point out that an "explosion in transnational commerce has changed the world forever" but that the "legal procedures applicable to the global community have not kept pace and are still largely confined to and limited by individual national jurisdictions". The authors note the importance of best practices being adopted across national lines while recognizing that rules of civil procedure are very often "entrenched in issues of state sovereign prerogative" and are often an expression of political authority and institutions. Moreover, the authors note that there have always been strong reservations against universal rules of civil procedure especially since "the fundamental differences between the common law system and the civil law system were considered insurmountable". However, the authors boldly make their proposals on the proposition that "there are fundamental principles of civil procedure that transcend the differences between the systems of common law and continental law".

It is far beyond the scope of this paper to analyze all the ALI/UNIDROIT proposed Principles, but I find that it is useful to identify certain of them, applicable to the above US and Greek case examples, and ask if they should be considered.

Principle 9, titled Structure of the Proceedings, proposes conferencing by the court at the pleading stage, including to address "matters appropriate for early attention" such as jurisdiction, early dispositive issues, evidentiary issues, procedural defenses and scheduling issues. While civil law systems, such as in Greece, focus on the courts' involvement at a hearing on the trial date, there is no reason, it seems to me why the Greek court cannot hold a preliminary hearing early, particularly for potentially dispositive issues such as personal jurisdiction, in keeping with this Principle.

Principle 11, is titled Obligation of the Parties and Lawyers. Sub-paragraphs 11.2 11.3 and 11.4 propose that the parties contentions at the pleading stage shall be reviewed for specificity by the court and that a party's unjustified failure to admit or deny a contention be taken into account by the court - including deeming it admitted for trial. One of the advantages of the US pleading system discussed above is that the issues are refined by the pleadings stage, at the pleadings stage and at such time all facts not denied are deemed admitted. This simple, almost mechanical, process is made possible by the US pleading rules themselves which require only the factual contentions which underlie the claim elements. Concise individual factual assertions (not argument or proof) are either admitted or denied, distilling the parameters of the factual inquiry at the very beginning. Thus only the truly contested facts are to be determined at trial.

Principle 12 relates to Multiple Claims and Parties and Intervention. Sub-paragraph 12.5 of the principle states that "The court may order separation of claims, issues or parties or consolidation with other proceedings". This Principle recognizes that, in the interests of efficiency, such issues should be resolved early. In the Greek litigation example, discussed above, a counterclaim or joinder by my client as a defendant would have the effect of delaying the proceedings, since it would be interposed at trial.

Principle 14 is titled Court Responsibility for Direction of the Proceeding. Sup-paragraphs 14.1, 14.0 and 14.3 suggest that the court should "actively manage" the proceedings, exercising discretion to achieve disposition fairly and with "reasonable speed". Sub-paragraph 14.2 suggests that the court should manage the proceeding in consultation with the parties. This is similar to the Federal Rules of Civil Procedure, Joint Rule 16 statement and subsequent federal court Scheduling Order. Sub-paragraph 14.3 states that the court should fix a time-table and deadlines and establish the order in which issues are to be resolved. Consultation with the parties, to improve efficiency and perhaps identify the issues for dispute, seems to me not to diminish the mandate of the court in civil law jurisdictions to have sole control over the evidence and trial. There is no question that consultation with the parties would improve efficiency. In addition, in a world of increasingly transnational and complex cases, such early consultation and coordination is desirable. In our Greek case, as above stated, early consultation and the scheduling perhaps of one or more pre-trial hearings, would have allowed the Greek court to identify and rule, early on, on critical issues of jurisdiction and standing choice of law, as well as the issue of counterclaims cross-claims and joinder of necessary parties. These earlier hearings, focusing on the parties contentions, code law, and documentary evidence, would be no different than the types of hearings generally found in civil law jurisdictions. These hearings do not require Greek judges to do anything different than what they do normally. Scheduling a pre-trial hearing on certain procedural defenses would not necessarily be contrary to the role of the court in civil law jurisdictions and would be analogous, in some respects, to Federal US court hearings and arguments on Motions to Dismiss or Summary Judgment Motions.

Principle 16 is titled Access to Information and Evidence. This Principle provides, in sub-paragraph 16.1, that the court and each party should have access to relevant and non-privileged evidence, including testimony of parties and witnesses, expert testimony, and documents". Moreover Sub-paragraph 16.2 provides that, "upon timely request of a party, the court should order disclosure of relevant, non-privileged and reasonably identified evidence in the possession or control of...... a non party". What is represented by these Principles is far less than what the US Federal or state civil procedures give their litigants (as described in the US discovery process above). Yet these Principles describe earlier and broader pre-trial access to evidence than that provided by the Greek civil litigation process.

Early exchange of evidence, under court supervision, serves only to prevent "trial by ambush" and serves justice. Moreover, the Principles propose the ability to obtain disclosure of evidence in the hands on non-parties (similar to that provided by the US Federal Rules of Civil Procedure, Rule 45 on Subpoenas). The court in Greece, as in the US litigation, could issue protective orders and limitations on subpoenas issued to non-parties and there could be available motions to quash or limit the scope of subpoenas. Moreover, in the interests of justice and a fair determination of the claim in light of all relevant evidence, the fact that disclosure of such evidence may be adverse to the person making it (absent privilege) is outweighed by the other considerations.

Critical to the US system of litigation is substantial leeway to cross-examine adverse party and non-party witnesses - cross examination often being called the "crucible" of truth. I cannot see how greater ability and leeway to cross-examine both party and non-party witnesses can impede the search for truth in the Greek civil litigation process. Moreover, as Principle 16.5 suggests, a lawyer should be able to voluntarily interview non-party witnesses. Under the Greek Rules of Civil Procedure, consistent with many civil law jurisdictions, this is seen as "tainting" the witness. However, I do not see how a witness will be more likely to perjure himself or herself at trial simply because they were interviewed by an attorney. In US litigation the interviewing of non-party witnesses by the parties, including by attorneys and litigation investigators, is common (provided however that the ethical rules for attorneys prevent the ex parte interview of management - level officers of a corporate defendant, for example). Moreover, Rule 16.1 provides that a party's testimony is admissible as evidence and given probative weight. This is in accordance with US litigation practice where the depositions and subsequent direct and cross-examination of the parties are most critical to the case. There is no reason, in my view, for the preclusion or limitation of such testimony by parties, which should be sworn. The Greek court is not prevented from evaluating that testimony as being self-serving or biased or influenced by their interest in the dispute.

One of the great advantage of the common law system is that one can identify a particular issue, a particular set of facts (under each court-made legal principle/doctrine or statutory law) and readily pull up, on Lexis or Westlaw, hundreds of decisions on the same issues. The binding or persuasive precedent or force of these prior written opinions is derived first and foremost from the requirement that judges provide ample written support for their reasoning and analysis in reaching their conclusions. Principle 23 is titled Decision and Reasoned Explanation and provides that orders and judgments "should be accompanied by a reasoned explanation of the essential factual, legal and evidentiary basis for the decision". Whether the decision is to be given persuasive or binding precedential value is irrelevant to the main issue. A decision by the court does not fulfill its role simply by providing the parties with notice of the disposition of their case. Such reasoned opinions are fundamental to the administration of justice and the development of reasoned legal theories and doctrines. It is not contrary to any structural or endemic aspect of civil law jurisdictions, to require detailed concise and well reasoned legal judgments by the courts.

Principle 24 is titled Settlement, and provides that the court, while providing full and fair opportunity for litigation, should encourage amicable resolution. As above stated, early exchange of relevant evidence and fleshing out of the issues in pretrial motions educates the parties as to their real chances and, with the fear and uncertainty of trial looming, they resort to settlement. In the US Federal court system this is further facilitated by the District Court Judges referral of the case to Federal Magistrate judges for settlement discussions. In the Pennsylvania Federal District Courts (including the court I primarily practice in which is the Eastern District of Pennsylvania) the Federal judges potentially assign a case, early on, to a Magistrate Judge for settlement discussions. The Magistrate Judge may set settlement conferences early or after discovery has ended, depending on the case. Such Magistrate Judges generally seek consent to talk to the litigants ex parte to further facilitate a settlement. Such judges are generally experienced former practitioners and seasoned trial lawyers who can assess a case readily. Very often they order settlement conferences which require the parties to appear. I have seen, countless times, parties who were obstinate and set in their ways, come to their senses when a Federal judge explains the "facts of life" to them. That is not to say that these Magistrate Judges compel or force settlements. But if you believe in the logic of settlement for most cases, as I do, their involvement in pretrial settlement discussion, bringing the experience and gravitas of the court to such discussions, is invaluable.


A common sentiment I hear about Greece from business persons and investors is their great fear of being embroiled in its legal and bureaucratic regulatory system. Government taxation, labor and fiscal reform programs are fine but an inefficient Greek legal system, in letter and practice, provides strong disincentives to investment and entrepreneurship. Artificial attempts and programs to stimulate growth without dealing with this core underlying issue are, in my view, built partially on sand. The perception by an investor that a business, property, shareholder, contract, labor, investor protection, intellectual property, or secured transaction dispute, can be litigated quickly and with a reasonable degree of predictability, is critical. Legal insecurity in this respect is often perceived, and rightly so, as an existential and non-acceptable risk. If real development and job growth comes from small to medium size enterprises (and there is substantial economic literature that it does), it is precisely these SME's that are most vulnerable and risk averse to legal embroilment and insecurity. Delay, in itself, creates unpredictability.

There is no infallible or perfect legal system nor is there one that delivers justice with 100% efficiency. However, despite this, it is important to engage in comparative analysis of legal system with a view to developing improvements. This must be done not only from a theoretical perspective but also from a practical perspective - looking at what litigants and attorneys actually experience and face. Cultural, social, historical, and other systemic differences perhaps do not allow for identical application of different legal systems. In addition, not all types of litigations are amenable to similar comparison or harmonization. For example there are numerous different national, structural and societal issues involved in domestic, personal injury, and employment disputes that make it very difficult to compare legal procedures in these areas. With proper comparison, and giving due difference to each legal system, however, some successful and efficient legal rules and procedures from one system may be able to be transplanted. Efficiencies in one legal system can be spotted and borrowed by another. All of this comparative analysis must be under the light of the developing standards and guidance of "rule of law" best practices. This is particular important in the area of commercial and business disputes, which are increasingly of a transnational character.

[1] For example World Bank, IMF, OECD, World Justice Forum, US State Department, Transparency International, UN, all reflect low rankings/ratings on Greece. Above rankings and ratings from 2010 to 2014, identify a "highly inefficient" court system and unacceptable delays.

[2] IMF Fifth Review, Under the Extended Arrangement et al. (Relative to World Bank's Doing Business indicators and OECD's competitiveness and regulation indexes, "Greece remains far from the Euro area average". Greece urged to adopt "best practices" regarding civil procedure.

[3] I believe it is more instructive to utilize the Federal Rules of Civil Procedure (which have wide application in all US Federal courts). However in the analysis I will sometimes refer to analogous provisions in state rules of civil procedure - such as the Pennsylvania or NJ Rules of Civil Procedure.

[4] I will not dwell on service issues here which can be a cause of delay. In US Federal Court, service has to be accomplished within 120 days of filing of the Complaint. F.R.C.P 4 (c) (1). Under Greek law, the Greek Code of Civil Procedure requires service within 60 days (90 days for foreign residents) from the date of the trial/hearing. Greek Code of Civil Procedure, Article 228. Service is pursuant to Articles 122-143 of the Greek Code of Civil Procedure.

[5] It should be noted however that, on its own, the Greek Court is required to take notice of lack of jurisdiction. Articles 4 and 46 of the Greek Code of Civil Procedure.

[6] I note that under the Brussels I, EU Directive, in accordance with Articles 25-26 of same as implemented in Greece, the Greek court is required to evaluate on its own "at each stage of the litigation" the presence of international jurisdiction. This is an example of the continuing effect of EU directives and regulations on Greek Civil Procedure and the likelihood of further harmonization of same to further the aims of the "common market". Another example is EU Council Regulation EC No. 1706/2001 (empowering courts within the EU to ask other EU courts to order the taking of evidence).

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