Concept and significance of consultation prior to judicial decisions
Die Consultation prior to judicial decisions is an important part of legal decision-making within the context of state and, in some cases, private law structures. It encompasses all measures undertaken in preparation for a judicial decision, in particular the structured consultation and collegial discussion of facts and legal issues before the issuance of a judgment, order, or other judicial decision.
The consultative process serves to enhance the quality and accuracy of judicial decisions and ensures that judgments are objective, comprehensible, and fair. It applies both in cases heard by a single judge and in panels with multiple members, and constitutes one of the fundamental procedural principles in the German and European justice systems.
Legal basis for consultation prior to judicial decisions
Statutory foundation
Consultation prior to judicial decisions is expressly regulated in various codes of procedure. The following provisions are particularly significant:
- Section 193 of the Courts Constitution Act (GVG): This section regulates consultation and voting in the courts of ordinary jurisdiction.
- Section 43 of the Code of Criminal Procedure (StPO) und Section 197 of the Code of Civil Procedure (ZPO): These provisions contain supplementary rules regarding consultation and voting practices in criminal and civil proceedings respectively.
- In the area of administrative jurisdiction consultation is provided for under Section 117 of the Code of Administrative Court Procedure (VwGO) , for labor law under Section 59 of the Labor Court Act (ArbGG).
Purpose of consultation
The statutorily mandated consultation prior to judicial decisions ensures
- thorough analysis of the facts,
- examination of the legal basis,
- discussion of differing opinions within the panel, and
- an objective, consensus-based or majority-based decision-making process.
The duty to consult thereby serves to ensure legal certainty as well as the protection of legitimate expectations for parties to the proceedings.
Process and modalities
Composition of the judicial panel
Consultation is generally conducted by the judges involved in the decision. In collegiate courts (e.g. chambers, senates, criminal divisions, or civil divisions), consultations typically take place in what is known as the consultation room. In decisions by a single judge, there is no collegial consultation; however, there is a heightened obligation for particularly thorough legal scrutiny.
Consultation process
The legal consultation follows a set process:
- Reporting – A member of the judicial panel, often the presiding judge or an appointed rapporteur, summarizes the facts and legally relevant aspects.
- Legal discussion – Subsequently, a discussion is held on the crucial facts and their legal evaluation. Differing opinions are openly expressed.
- Voting – The decision is then made according to statutory rules, usually by a majority vote (§ 193 GVG).
- Judgment rendering – The decision made is drafted and announced. For collegiate decisions, the outcome of the consultation and the manner of voting (majority/minority) are generally confidential.
Confidentiality of the consultation
In accordance with § 43 StPO, § 197 ZPO, and § 193 para. 1 sentence 2 GVG, both the consultation and voting are confidential. Judges are strictly obliged to maintain secrecy concerning the course of the consultation and the expression of opinions within the panel. This confidentiality serves to protect judicial independence and preserves the impartiality of the panel.
Special forms and areas of application
Collegiate consultation
Collegiate or panel consultation takes place in judicial bodies composed of several judges. It is the prevailing form of consultation in higher courts (e.g. Higher Regional Courts, Federal Courts), but also in most chambers at first instance.
Consultation by a single judge
In proceedings before a single judge, all decision-making powers, and thus also the consultative review of the facts and legal situation, lie with one person. Nevertheless, consultation remains essential for due diligence, neutrality, balancing of interests, and legal certainty, even though it does not take place in a collegial form.
Higher courts and special panels
In the supreme federal courts or constitutional courts, consultation often takes place in specially equipped deliberation rooms and may involve extensive discussions, preparation of draft opinions, or session minutes.
Significance of consultation for jurisprudence
Impact on decision-making
Consultation before judicial decisions not only increases care in reaching judgments but also ensures that different points of view are considered and debated. This creates a well-founded and balanced decision-making basis that takes into account the complexity and individual nature of many legal matters.
Binding effect of consultation
A consultation result is binding on members of the panel to the extent it is reached by majority vote. Minority opinions are not indicated in the judgment, and a written record of the voting outcome is not made public.
Challenges of recusal and bias
The consultation may be affected by motions to recuse for bias. The concerned individual is then excluded from consulting and deciding on their own bias; the proper composition of the panel is thus preserved.
European legal aspects
Consultation is also of particular importance at the European level. The European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union establish the right to a fair trial, intended to ensure independence and objectivity in judicial decisions. Consultation as an internal judicial discussion is thus an expression of judicial autonomy and an integral part of a rule-of-law-based court procedure.
Literature and case law
Numerous publications, commentaries, and decisions are available for a more in-depth academic and practical examination of consultation prior to judicial decisions. In particular, decisions of the Federal Court of Justice, Federal Constitutional Court, as well as federal courts at the European level, regularly address proper consultation practices and requirements regarding transparency, regularity, and confidentiality.
Summary
Consultation prior to judicial decisions is a key element of all judicial activity. It ensures conscientious, transparent, and legally secure decision-making and forms an important pillar of a system governed by the rule of law. The consultation process is embedded in procedural codes, is conducted under strict confidentiality, and makes a significant contribution to the proper, independent, and well-founded administration of justice.
Frequently Asked Questions
What role does legal consultation play before a judicial decision?
Legal consultation before a judicial decision is of central importance, as it sets the course for the further conduct of a legal dispute. Sound advice first serves to provide a comprehensive assessment of the prospects of success for a claim or defense. The Rechtsanwalt analyzes the factual and legal situation as well as the evidentiary position and informs the client of possible procedural risks, litigation costs, possible ancillary consequences, and the expected duration of the proceedings. The lawyer also explains alternatives such as mediation or amicable settlements, which may at times save time and costs. In addition, all procedural requirements such as deadlines, compliance with certain formal requirements, and the necessity to file certain applications or objections in a timely manner must be considered. The aim of legal consultation is always to provide the client with a well-founded basis for decision-making in order to develop the procedurally most favorable strategy for them.
To what extent is legal consultation relevant for the observance of deadlines?
Deadlines play an extremely important role in court proceedings, as missing statutory or court-imposed deadlines can have severe legal consequences, including complete loss of rights. Legal consultation therefore also encompasses careful monitoring and observance of all deadlines, for instance, for filing a lawsuit, response, appeal, or revision. A Rechtsanwalt informs the client at an early stage about upcoming deadlines, explains their significance and the consequences of missing them, and regularly ensures through appropriate organizational measures that these deadlines are met. Part of the advice also involves examining whether, in case of a missed deadline, remedies such as reinstatement to the previous status are available and how to apply for them.
What documents and information does the lawyer need for the consultation?
For comprehensive and appropriate consultation prior to a judicial decision, the Rechtsanwalt needs all documents and information related to the facts of the case. This includes contracts, correspondence, payment reminders, any payments already made, evidence such as witness statements or expert reports, relevant documents, and, where applicable, prior out-of-court correspondence. A precise account of the facts by the client is also essential. Based on this information, the lawyer will examine what legal claims or defense options exist, how to assess the evidentiary situation, and which procedural steps must be prepared. Complete and truthful information from the client is a prerequisite for the best possible advice.
How does the lawyer assess the prospects of success of a court case?
The assessment of the prospects of success of court proceedings is based on a legal evaluation of the facts and the applicable statutes. The lawyer first examines whether the facts establish a legally enforceable claim and whether it can be substantiated by evidence. This includes analysis of laws, relevant case law, and, where appropriate, commentary literature. In this process, defense strategies, possible objections, or grounds for exclusion raised by the opposing party are also considered. The lawyer gives the client a realistic assessment as to how successful a lawsuit may be, where uncertainties can be expected, and what risks (e.g. cost liability if unsuccessful) exist. The conduct of the court and regional particularities can also be taken into account in the risk assessment.
What costs can be incurred in the course of legal proceedings?
Before legal proceedings, clients are informed in detail by their lawyer about the potential costs. These include court fees, which are generally determined by the court according to the amount in dispute, as well as legal fees under the Lawyers’ Remuneration Act (RVG) or pursuant to any fee agreement. Further costs for experts, witnesses, or interpreters may also arise. The cost risk in case of losing is also part of the advice; the client is made aware that, as a rule, they must bear not only their own but also the necessary costs of the opposing party. As part of the consultation, it will be clarified whether legal expenses insurance could cover the costs or whether legal aid or assistance with legal costs can be applied for.
To what extent are out-of-court settlement options discussed?
An important aspect of legal consultation before a judicial decision is the systematic discussion of alternatives to litigation, especially amicable settlements or alternative dispute resolution methods such as mediation. The lawyer highlights the benefits that an out-of-court solution may offer – such as lower costs, time savings, preservation of business relationships, or greater confidentiality. The lawyer examines with the client whether and under which conditions a settlement is reasonable and, if necessary, assists in the negotiations. At the same time, the likelihood of success and risks of litigation are weighed against these alternatives, enabling the client to make an informed decision on how to proceed.
What is the significance of evidence in consultation prior to judicial decisions?
Evidence plays a central role in legal consultation prior to judicial decisions, as a claim or defense generally only stands a chance of success if the decisive facts can also be proven. During the consultation, there is a critical review of which documentary evidence, witnesses, or expert reports are available and how robust these are. The lawyer explains the requirements for specific evidence, informs the client about the burden of presentation and proof, and clarifies how missing evidence may affect the chances of success in the proceedings. Additionally, they give guidance on collecting and securing additional evidence or on safeguarding evidence by means of preliminary injunctions or independent evidence proceedings.
