Comparative Analysis between Italian Civil Proceedings and American Civil Proceedings before Federal Courts, A


A COMPARATIVE ANALYSIS BETWEEN ITALIAN
CIVIL PROCEEDINGS AND AMERICAN CIVIL
PROCEEDINGS BEFORE FEDERAL COURTS

Simona Grossi'

I. INTRODUCTION

Comparative analysis of civil proceedings requires an in-depth study
of the structure and most distinguishing elements of each country involved.
It has the goal of identifying the rationales and features that make each
country unique.

It is commonly misconceived that common law systems rely solely on
the authority of precedent and civil law systems rely only on the authority
of statutes and codes.2 This article demonstrates that the Italian and the
U.S. legal systems are not purely inquisitorial nor purely adversarial, but
that they share similarities and can learn from each other.3

In the adversarial system in the United States, the judge plays a
relatively passive role in the proceeding. Facts and evidence are gathered by
the parties and finally judged by a jury, a body of ordinary citizens
instructed as to the applicable law by the judge, who will eventually render
a judgment on the basis of the jury's decision - the verdict.

In the United States, not all cases are tried through a jury trial. Some
cases are decided by judges without a jury, either because the case is in an
area where there is no right to a jury trial, or because the parties have
waived their right to a jury trial. In such cases, the judge's role is still much
more passive than it would be under the inquisitorial system. Some
common law countries other than the United States have gone much further
in eliminating jury trials in civil cases.

On the contrary, in inquisitorial systems like the Italian one, the judge
plays a more active role in the proceeding. The jurist instructs the parties on
how to proceed, grants or denies their requests for time limits and
admission of evidence, and eventually decides upon facts and evidence,
without any jury.

However, the Italian and the U.S. civil proceedings share many more

1. Simona Grossi is an Associate Professor of Law at Loyola Law School L.A. Special
thanks for this article goes to Professor Patrick Hanlon for his dedication, assistance, help,
great insight, and advice on this work. Additional thanks goes to Professor David
Oppenheimer, my professor of Civil Procedure at Boalt Hall. This article constitutes the
introduction to the Commentary to the Italian Code of Civil Procedure, Oxford University
Press, February 2010,

2. See CHARLES F. ABERNATHY, LAW IN THE UNITED STATES, THE MIXED SYSTEM OF

CODE-BASED AND COMMON LAW IN THE UNITED STATES 3 (2006).
3. The present analysis shows how the Italian legal system is not purely inquisitorial

and the U.S. legal system is not purely adversarial.



IND. INT'L & COMP. L. REV.

commonalities than one could expect. This may be because the U.S. legal
system is not purely adversarial and the Italian legal system is not purely
inquisitorial. There are many similar, if not identical, mechanisms and
techniques for identifying the relevant facts and evidence and applying the
substantive law to facts.

Some mechanisms are more efficient than others, but the many
similarities between the two systems suggest that a hybrid model could be
proposed for adoption.4 The presence or absence of a jury and the
differences in discovery procedures are not incongruous enough to preclude
adoption of common procedural rules and models.'

1.1 A briefdescription of the adversarial and inquisitorial systems

As a general rule, the adversarial system of common law countries is
lawyer-centered. Lawyers are the protagonists of lawsuits; by their
continuous confrontation and "fight," lawsuits get resolved. In theory, the
judge plays a passive role by enforcing procedural rules (including rules of
evidence) and leaving the initiative to investigate and present the case to the

6parties through their lawyers.
In other words:

Civil litigation in the United States is presented and
defended primarily by advocates for the parties, with the
judge serving in a relatively passive role. Theoretically, the
parties bear the entire responsibility for presenting the law
and the facts; the judge is obliged merely to affirm or reject
the parties' contentions. For this reason the American
system is called the adversary system. Most other modern
legal systems employ what is usually called the
inquisitorial system, meaning only that the initiative rests
with the judge for developing the facts of a case and the
governing legal principles.

4. For further consideration of the possibility of adopting a unique set of rules of civil
procedure, see G. C. Hazard, Jr. et al., Joint American Law Institute/UNIDROIT Working
Group on Principles and Rules of Transnational Civil Procedure, Int'l Inst. for the
Unification of Private Law, Study LXXVI - Doc. 12 (Feb. 2004).

5. In this respect, see also Rolf Stirner, Transnational Rules of Civil Procedure
Feasibility Study, Int'l Inst. for the Unification of Private Law, Study LXXVI - Doc. 1, at 10
(Feb. 1999).

6. In the U.S. system, in jury trials, the role played by the Italian judge is split between
the judge and the jury. The jury, of course, plays an even more passive role than the judge.
Even in cases where the U.S. judge acts as a finder of fact, and where it would be
theoretically possible for him to play a role similar to that of an Italian judge, the U.S. judge
continues to adopt an essentially reactive role, leaving the initiative to the parties' lawyers.

7. Geoffrey C. Hazard, Jr. & Michele Taruffo, AMERICAN CIVIL PROCEDURE: AN

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

The Federal Rules of Civil Procedure and their changing
interpretation by case law, as well as the Italian rules of civil procedure and
jurisprudence, make it clear that judges have strong powers in both
proceedings. In both cases, lawyers have the power to shape claims,
defenses, and evidence to submit to the judge or jury who will eventually
evaluate them. Therefore, neither of them can be considered truly
adversarial or truly inquisitorial.

Particularly in the American legal process, judges are taking a more
active role and discretionary approach to pretrial case management. 9 On
some occasions, United States federal judges may have more discretion
than Italian judges because their powers are not regulated. For example, in
settlement conferences, the "informal" case management tool, a trial judge
has "a level of control and a degree of discretion that strain the boundaries"
of the traditional role because the customary litigant input or legal criteria
are missing.io

1.2 Efficiency and fairness as terms of the comparative analysis

Efficiency and fairness are terms used by the present comparative
analysis to evaluate the main legal devices adopted by the two legal systems
and to identify the best solution which each of them may have adopted. It is
therefore necessary to illustrate the concepts and ideas behind the words
"efficiency" and "fairness."

Any expert or practitioner studying a civil procedure rule or
mechanism would question whether it is efficient and fair. In other words,
the practitioner would ask to what degree the rule was overly time and cost
consuming, and whether it is fair considering the position and interests of
all the parties in the proceeding.

A proceeding can last for years and is often expensive both for the
parties and the state. Therefore, the rules governing the proceeding should
frame mechanisms which are the least time and cost consuming. A lengthy
and expensive device will not be efficient.

Efficiency is a term that is not difficult to define. Everybody has an
idea of what is efficient and what is not. Usually, all the parties in a
proceeding, even when they have opposing interests, would likely come to
the same conclusion as to what is efficient.

This article adopts the meaning of efficiency as a device that, all else
being equal, is the least time and cost consuming. This definition measures
efficiency in terms of costs and time; similar procedural devices are judged
on the time and costs required to achieve the same result. The less

INTRODUCTION 86 (1993).
8. On the powers of Italian judges, see CIUSANTO MANDRIOLI, DIRITTO PROCESSUALE

CIVILE 68, Torino, 2007.
9. Johathan T. Molot, An Old Judicial Role for a New Litigation Era, 113 YALE L.J.

27, 90-91 (2003).
10. Id. at 30.

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IND. INT'L & COMP. L. REv.

expensive and time consuming they are, the more "efficient" they are
considered. The necessity to frame fast and cheap civil procedure devices,
however, should not lead a legislature to frame civil procedure rules which
prevent reasonable, well grounded, and "fair" solutions.

Compared to the concept of "efficiency," the concept of "fairness" is
much more complicated and what is fair is often debatable. Usually,
scholars and practitioners have been more concerned about efficiency than
fairness. However, while efficiency is undoubtedly an important concern,
fairness is paramount not only of litigants, but also of society and for the
acceptance of the rule of law." Some have defined "fairness" as meaning
"having one's 'day in court,' if desired," and "having rewards and penalties
based on actual damages." 2 Wichever definition may be correct, the
concept of "fairness" immediately evokes the concept of "due process," as
the U.S. Supreme Court has often stated."

There may be different views as to what the due process rule means
and what its scope and limits are. The United States and Italy have adopted
different provisions concerning "due process" and "fairness." Therefore, it
is not possible to adopt "due process" as a term of comparison in the
present analysis. Rather, a common nucleus of shared values might be
identified and adopted as the definition of "fairness" in order to state
whether a specific rule, requirement, mechanism, or proceeding is "fair."

The Fifth Amendment of the U.S. Constitution provides, "No person
shall . . . be deprived of life, liberty, or property, without due process of

law." Clause one of the Fourteenth Amendment of the U.S. Constitution
provides, "No State shall ... deprive any person of life, liberty, or property
without due process of law."' 4 These provisions and the required elements
of due process have been construed as those that "minimize substantively
unfair or mistaken deprivations of property" by enabling persons to contest
the basis upon which a state proposes to deprive them of protected
interests." The core of this requirement is notice and a hearing before an
impartial tribunal. The concept of due process has been developed through
the idea of "fundamental fairness," which has been illustrated by case law.'6

11. Robert M. Howard, et. al., Pre-Trial Bargaining and Litigation: The Search for
Fairness and Efficiency, 34 LAW & Soc'Y REV. 431 (2000). See Tom R. TYLER, WHY PEOPLE

OBEY THE LAW (1990) (noting that, regardless of the outcome, if litigants perceive the
process as fair, then there is general acceptance of the outcome, and hence compliance with
the law).

12. See Howard, supra note 11, at433.
13. See, e.g., Schall v. Martin, 467 U.S. 253, 268 (1984); S.D. v. Neville, 459 U.S. 553,

556 (1983). See also Howard, supra note 11, at 432.
14. The difference between the Fifth and the Fourteenth Amendment is that the Fifth

Amendment applies to the Federal Government only, while the Fourteenth Amendment
applies to the states.

15. See Fuentes v. Shevin, 407 U.S. 67, 81 (1972).
16. Republic of Aus. v. Altmann, 541 U.S. 677, 717 (2004). See, e.g., Panetti v.

Quarterman, 551 U.S. 930, 949 (2007).

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

Unlike the United States version of due process, which is defined in
very general terms, the Italian legal system does not contain any guidelines
as to its scope and limits which continue to be set by judges. The due
process rule under Article 111 of the Italian Constitution defines due
process by listing some rights and guarantees which are considered
fundamental elements of due process. However, the list of rights and
guarantees under Article 111 of the Italian Constitution is not exhaustive,"
and Italian judges have helped in expanding and better clarifying the list
under Article 111.18

Article 111 makes it clear that confrontation and parties' rights to
defense (the parties' rights to present their case, objections, and answers)
are considered essential elements of "fair play," and are essential elements
of due process. A reasonable duration of the proceeding is also considered
an element of due process. The duration of the proceeding should not be
considered in the abstract but with respect to the specific circumstances of
the case to ensure that the proceeding be fast, but not superficial.' 9

Pursuant to the sixth paragraph of Article 111, all judicial decisions
shall state the rationale for the decision in order to make judges accountable
to the public. The rationale for the judgment is considered fundamental for
the party intending to challenge the judgment because it gives that party an
actual opportunity to identify the weak points of the judgment. The
judgments, however, should not contain any possible dissenting opinion.

Considering the foregoing and relevant case law construing the due
process provisions in both legal systems, it is possible to identify
commonalities among the Fifth and Fourteenth Amendments to the U.S.
Constitution and Article 111 of the Italian Constitution in that each serve
notions of fairness. Specifically, both legal systems consider the following
elements to be part of the concept of fairness: (1) fair notice and fair
warning; (2) a hearing before an impartial judge; (3) rationality of the
proceeding and of the measures adopted; and (4) fair play.

"Efficiency" (in terms of time and cost) and fairness are interrelated
concepts. For instance, a high cost proceeding may be unfair if it forces the

17. For a more comprehensive description of due process rule under art. 111 of the
ITALIAN COST., see Alessandro Andronio, COMMENTARIO ALLA CosTITuzIoNE 2099 (R.
Bifulco et al. eds., Torino 2006).

18. Art. 111 of the ITAIAN. COST., in the relevant part dealing with civil proceedings,
provides that "(1) Justice must be administered by fair trials defined by law. (2) Trials are
based on equal confrontation of the parties before an independent and impartial judge. The
law has to define reasonable time limits for the proceedings. . . . 6) Reasons must be stated
for all judicial decisions." (in Italian, it reads "(1) La giurisdizione si attua mediante il giusto
processo regolato dalla legge. (2) Ogni processo si svolge nel contraddittorio tra le parti, in
condizioni di paritk, davanti a giudice terzo e imparziale. La legge ne assicura la ragionevole
durata.. .(6) Tutti i provvedimenti giurisdizionali devono essere motivate. . .").

19. In any event, the way the provision is written, and the use of the adjective
"reasonable" does not make the provision a valid instrument to combat the excessive
duration of proceeding in Italy.

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IND. INT'L & CoMp. L. REV.

parties to spend more resources than necessary. The present study treats the
two concepts of efficiency and fairness separately and identifies when the
one occurs a consequence of the other. For example, unfairness may be a
consequence of inefficiency, and vice versa.

II. GENERAL OVERVIEW OF THE ITALIAN PROCEEDING20

2.1 The courts and selection and appointment ofjudges

Federal courts analogous to United States federal courts do not exist
in Italy. Instead, there are various tribunali21 which are located in various
districts, and various corti d'appello22 located in the different Italian
provinces. There is only one court of last resort for the territory, Corte di
Cassazione,23 which is located in Rome.

Courts are divided according to their specialties; there are civil courts,
criminal courts and administrative courts. There is one Corte
Costitutzionale,24 whose task is to ensure that any law provision complies
with the Constitution and is construed accordingly. If a party believes that
an existent and applicable law breaches any provision of the Constitution, it
can file a motion before Corte Costituzionale through the judge of the
pending proceeding where the issue has been raised. The party asks
whether a conflict exists between the applicable law and the Constitution
and, if so, requests repeal of the inconsistent law.

Whether specific litigation should be commenced before a specific
court (e.g. civil court) is an issue of jurisdiction that can be solved by
applying the relevant law provisions. On the contrary, identifying the
proper court within a specific jurisdiction is a question of "venue"
("competenza"), which can be decided on the basis of the applicable law

provisions concerning venue. The judges of first instance courts are
appointed by public examination for which a law degree ("laurea") is
required.

20. See also infra App. A.
21. Tribunale (Trib.) is the court of first instance in Italy. Giudice di Pace (Justice of

the Peace) is the first instance judge with jurisdiction over claims not exceeding EUR 2,500.
22. Corte d'Appello (Corte app.) is the appellate court in Italy, which can review the

judgments rendered by the court of first instance (Tribunale).
23. Corte di Cassazrone (Cass.) does not review the facts, but only the law, that is, the

application of the applicable law provisions to facts, as accomplished by the lower courts.
Cass. has no discretion on whether to hear a case. Once the motion for review (ricorso in
Cassazione) has been filed and it complies with the applicable law provision., Cass. will hear
and decide the case See ICCP art. 360.

24. Pursuant to art. 134 of the ITALIAN COST., Corte Cost. decides (i) disputes
concerning the constitutionality of laws and acts with the force of law adopted by state or
regions; (ii) conflicts on the allocation of powers between branches of government within the
state, between the state and the regions, and between regions; and (iii) accusations raised
against the president in accordance with the constitution. Id.

25. Art. 7 C.P.c.

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After earning a law degree from a university, applicants can take the
exam to become judges.26 Those who become judges usually have not
practiced as lawyers and do not consider themselves lawyers. They usually
have little, if any, experience lawyering and managing cases and they must
learn how to deal with them. However, most of the time, even after many
years of experience as judges, they will still be missing this important piece
of experience which could lead them to adopt a more practical and efficient
approach to cases.

The judges are autonomously represented by the Consiglio Superiore
della Magistratura ("CSM"). This body is chaired by the President of the
Republic. Its membership consists of the President and the Public
Prosecutor of Corte di Cassazione and university law professors and
attorneys at law with fifteen years of experience.27

The judiciary is, therefore, an independent body. Judges are mainly
chosen by merit through public exams. They have a law degree and are
specifically trained to do their job. And unlike the appointment process in
the United States, the Italian executive branch does not take part in the
process of selecting judges.

2.2 Personal and subject-matter jurisdiction and venue: detailed
provisions with no ambiguity as to their scope

In domestic litigation, there are no particular problems in identifying
the personal and subject-matter jurisdiction of courts since the relevant
provisions of the Italian Code of Civil Procedure ("ICCP") set the
jurisdictional criteria with great specificity. On the contrary, in
transnational litigation, Italian International Private Law no. 218/1995
applies. Its provisions on jurisdiction may sometimes be ambiguous and
raise issues of interpretation. Once jurisdiction over a case has been
established, the ICCP sets the conditions to identify the proper venue of
litigation. These provisions are very detailed.

2.3 Main structure of the civil proceeding

The Italian civil proceeding is either directed by a judge or a panel of

judges.28 Parties may exchange pleadings and eventually discuss their case

26. However, they usually prepare for taking that exam by attending special schools and
courses, and this could take a substantial amount of time (two years or more).

27. Two-thirds of CSM's members are elected by various ordinary judges, and one-
third are elected by the Joint Sitting of the Senate and the House of Representatives of the
Parliament. In addition, CSM may appoint as judges of Cass. distinguished university law
professors and attorneys at law with fifteen years of experience who are registered in the
special register of attorneys admitted to represent and defend clients before Cass. See Cost.
Art. 104 (Italy).

28. In the few cases under Art. 50 bis ICCP, or where the judgment is challenged before

2010] 219



IND. INT'L & COMP. L. REv.

before the judge, who will finally decide the facts alleged and the evidence
gathered by the parties under his supervision. The proceeding is not divided
into a pretrial and trial phase, but facts and evidence are presented and
admitted into the record from the beginning of the proceeding until specific
time limits set by the applicable ICCP provisions expire. Once the relevant
time limits expire, the party may not introduce new facts and evidence
unless specific extenuating circumstances occur justifying the admission of
such new facts or evidence.29

The whole proceeding takes place before the judge. The proceeding
is commenced when the plaintiff serves the complaint upon the defendant.
The defendant should file the answer within in a specific time limit before
the first hearing if the party intends to raise specific objections to the
complaint. Otherwise, those objections are considered waived. 30 There is
no specific and mandatory layout for the complaint, the answer, or the
following pleadings. But Article 163 of the ICCP does require that the
complaint contain certain elements, the lack of which renders the complaint
null.

Article 167 of the ICCP does not require a specific layout for the
answer. However, the defendant should respond to the plaintiffs pleading
and raise all necessary objections. The answer should be filed within
twenty days before the first hearing. Otherwise, the relevant objections that
should be raised by this time limit will be considered waived by the
defendant.

Law suits are easily filed because the threshold requirements needed
to commence a lawsuit are easily met. Every pleading that meets the basic
requirements under Article 163 of the ICCP and is not barred by one of the
main objections (e.g. expiration of the relevant statute of limitation, lack of
jurisdiction, etc.) may proceed toward a final judgment.3 ' But the complaint
and the answer are not brief documents. They contain the facts, evidence,
and legal theory the party intends to apply in the case, which may amount to
a significant amount of information.

The legislature encourages lawyers to draft the first pleadings with as
much detail as possible. The complaint is required to contain more
information than a mere "notice" of the pleading to the other party and must
include evidence. However, it is the general practice, where possible with

Corte app. or Cass.; Corte Cost. as well is made by a panel of judges.
29. The general principle is set by Art.184 bis of the ICCP, according to which "[t]he

party showing that he suffered a waiver for reasons non attributable to him, may request the
investigating judge to put him back within the applicable time-limits. The judge decides
pursuant to article 294, second and third paragraphs." See SIMONA GROSSI & CHRISTINA

PAGNI, COMMENTARY TO THE ITALIAN CODE OF CIVIL PROCEDURE (2010).
30. The objections which should be raised before the first hearing are similar to the

United States' affirmative defenses under FED. R. CIv. P. 8(c), but they are not listed in any
specific provision of the C.P.C. The time limit for filing a response that contains affirmative
defenses is twenty days before the first hearing. See also art. 166-168 bis C.P.C.

31. However, the complaint should contain the elements listed under art. 163 C.P.C.
otherwise it will be null. Art. 164 C.P.c.

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applicable time limits and waivers, to avoid disclosing too much
information to the opposing party until the very end of the case.

Article 24 of the Italian Constitution acknowledges everyone's right
to bring cases before courts of law in order to protect their rights under civil
or administrative law. In order to bring or defend against a suit, a party
should act in good faith which means its claim or defense should be
supported by legal grounds. Where, as determined by a judge, a groundless
pleading or groundless answer is filed with gross negligence or malice, the
defendant or the plaintiff may request the judge to condemn the opposing
party to pay damages for serious liability ("responsabilithi aggravata")
pursuant to Article 96 of the ICCP. 3 2 This sanction, however, is very rarely
applied because it puts upon the party requesting its application a heavy
burden of proof to show that the opposing party acted with gross negligence
or malice when it filed the pleading or the answer.

The current workload for Italian courts is very heavy. The Italian
justice system is experiencing a crisis of lengthy litigation. The system is
hardly satisfying the requirements of due process under Article 111 of the
Italian Constitution regarding "reasonable duration," which threatens the
goals of efficiency and fairness.

Once the parties have exchanged the complaint and the answer, they
appear before the judge. The judge asks them preliminary information
about the case and then grants them time limits to file additional pleadings.
They may specify the content of the respective claims and defenses and
eventually request that the judge admit evidence. The pleadings are
exchanged within the time limits under Article 183, sixth paragraph, nos. 1,
2 and 3 of the ICCP. There is no right to amend a complaint once this time-
limit expires.

Once the evidentiary pleadings and the corresponding rebuttals have
been filed by the parties, the judge, by order, decides what evidence to
admit. The evidence which the judge may decide to admit should be
admissible and relevant. In other words, it should meet the requirements
for admission set by the ICCP and should help in proving or disproving the
facts of the case.

Once the judge decides that the evidence offered by the parties is
admissible and relevant, the judge schedules a hearing for evidence
admission (e.g., for witnesses' examinations, inspections, etc.). There may
be more than one hearing for evidence admission, depending on the type
and amount of evidence to admit.

32. Similarly, in the United States, there is the substantive tort of "abuse of process,"
which someone commits when he files a frivolous lawsuit against someone else in order to
achieve a collateral advantage of some kind. Furthermore, under FED. R. Civ. P. 11 lawyers
can be sanctioned for frivolous claims. As under art. 96 C.P.c., it is difficult to show that
something is frivolous, especially because notice pleading allows, to a certain extent, for
filling in factual gaps in discovery.

2010] 221



IND. INT'L & COMP. L. REV.

Soon after the end of the evidentiary phase, the judge declares the
evidentiary phase closed and schedules a hearing where the parties present
their conclusions and final arguments. These cannot be different from those
already filed,33 but are simply more specific, as they may have been slightly
amended during the proceeding. This hearing also gives them a time limit
for filing final pleadings and final pleadings in rebuttal. The judge will
render his decision within the following thirty days.34 The judgment
rendered by a first instance judge may be appealed' 5 before Corte d'Appello
which will review the entire decision making process of the first instance
judge. Issues of fact, as well as issues of law, may be reviewed by Corte
d'Appello. This is a de novo review, and the whole first instance
proceeding is reviewed. However, Corte d'Appello cannot address new
issues of fact or law which were not previously submitted to the first
instance judge. However, in very specific cases where it was impossible to
previously file those issues of facts or law, depending on circumstances
beyond the party's control, an exception may be granted. These
circumstances rarely occur. As a general rule, and except under equally
rare circumstances, third parties36 who did not take part in the first instance
proceeding are not allowed to file motions for intervention in the appeal
proceeding.

Finally, the judgment rendered by the Corte d'Appello may be
reviewed37 by the Corte di Cassazione only on the basis of the specific
grounds under Article 360 of the ICCP. These deal only with issues of law.
The Corte di Cassazione is in fact considered the "judge of the laws," and

33. However, parties may renounce some of their original claims and defenses. See
GROSSI & PAGNI, supra note 29.

34. In cases which should be decided by a panel of judges, the panel will render the
judgment within the following sixty days. However, either the thirty day time limit or the
sixty day time limit is not final, and the judge(s) may render judgment long after the
expiration of those time-limits. Id.

35. The losing party may appeal from the judgment rendered by the first instance judge
by filing the appeal (complaint) within one year and forty-six days. See Art. 327 C.P.C. This
runs from the publication of the judgment (long time limit for appealing) or by thirty days
running from the time of the service of the judgment by the winning party (short time-limit
for appealing). If the winning party serves the judgment upon the losing party, this latter
party will have only thirty days from the date of the service to appeal; on the contrary, if the
winning party does not serve the judgment on the losing party, this latter will have the
regular, long, one year and forty-six day term to appeal. The decision as to whether the short
or long time-limit to appeal should be triggered eventually rests upon the winning party. Id.

36. Art. 344 of the C.P.c. uses the term "third party" to refer to someone who did not
take part in the first instance proceeding, that is, a non-party in the first instance proceeding
which, only under exceptional circumstances, is allowed to appeal the first instance
judgment. Id.

37. The losing party may challenge a judgment rendered by the Corte app. before the
Corte di Cassazione (Cass.) by one year and forty-six days. See art. 327 C.P.C. This runs
from the publication of the judgment rendered by Corte app. (long time-limit for
challenging), or by sixty days running from the service of the judgment by the winning party
(short time-limit for challenging). See supra text accompanying note 35.

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not the judge of the facts of the case; the facts are considered established
once the Corte d'Appello has double checked the assessment made by the
first instance court.

The Corte di Cassazione has no discretion in deciding whether or not
to hear a case submitted to it for review to the extent that the motion for
review (ricorso in Cassazione) meets the formal requirements set by the
ICCP.38 The Corte di Cassazione could just deny the motion for review3 9

if, after reviewing the pleadings and the documentation on file, it believes
that the motion is groundless.

2.4 Pro-se litigants

A private person cannot file pro se complaints before a justice of the
peace (except in very rare cases where the amount of the claim does not
exceed EUR 516) because only counsel has the knowledge and expertise to
apply the relevant legal provisions in the view of Italian law. Also, the
parties cannot maintain proceeding without the assistance and guidance of
trained counsel because this is seen as prejudicial to the party and
inefficient.

Considering that Article 24 of the Italian Constitution acknowledges
the right of every individual to act and defend himself in a proceeding and
that the state undertakes to protect this right, the State grants free counsel to
whomever cannot afford to hire their own attorney to file a suit or defend
himself in a proceeding. However, free counseling may result in sub-par
representation since lawyers who provide free counseling services are paid
very poorly by the state. Unfortunately, many good lawyers are not willing
to offer free counseling. And there is no provision in the ethical code
encouraging them to provide such service.

2.5 No jury

There is no jury in civil proceedings. The decision is rendered only
by the judge who is typically presiding over the proceeding alone. But on
some occasions, the proceeding is decided by a panel of judges.40

2.6 The law of evidence

Since there is no jury and the decisions on evidence are made by the

38. In particular and mainly: (i) the judgment appealed should be one which Cass. may
review; (ii) the motion for review should be based on one or more grounds under art. 360
C.P.C.; (iii) the power of attorney should meet the requirements set by C.P.C.

39. Motion for review of the judgment is not similar to the writ of certiorari, because
review by the Cass. is not discretionary. See GROSSI & PAGNI, supra note 29.

40. Corte app. and Cass. decides by panel of judges. A case is decided by a panel of
judges also if it falls within the scope of art. 50 bis C.P.c. Id.

2010] 223



IND. INT'L & COMP. L. REv.

judge, the law of evidence is not designed to take into account any danger
of improperly influencing a inexperienced fact-finder. Therefore, there is
no prohibition against the use of character evidence, no hearsay rule, and no
general provision describing the concept of "relevancy" of evidence.

The concept of "relevant" evidence essentially excludes anything that
does not prove the essential elements of claim or defense of the case. For
example, in a civil proceeding concerning a car accident, the fact that the
defendant received a fine for speeding in the past would not be relevant.
Similarly, the fact that the defendant received a letter from his employer
complaining that he was recently driving negligently would not be relevant.
It could not directly prove that the defendant caused the accident at issue.

The rules governing evidence do not give much weight to
circumstantial evidence and inferences. They place much more emphasis
on direct evidence. Inferential reasoning is allowed, but has limits. As in
the example above, the judge would not be allowed to infer from
defendant's previous speeding fines that the defendant caused the accident
on that specific occasion. The burden of proof is upon the plaintiff to prove
that (i) there was an accident; (ii) that he suffered damages as a
consequence of that accident; and that (iii) the defendant caused the
accident either willfully or negligently.

The necessity to fill any gaps and have enough evidence to build a
reasonable story of the accident (what happened, why it happened, how it
happened, etc.) would never provide justification for the judge to draw
inferences as above described. The judge would find for the defendant only
if the plaintiff is not able to prove each element of his claim.

The judge will not grant the plaintiffs claim if the proponent could
only claim that it is "more likely than not" that each element of the
plaintiffs claim exists. Rather, the proponent must provide "strong
evidence" (a substantially higher standard than the "more probable than
not" standard).4 1 The plaintiff must prove that the accident was caused by
the defendant's negligent conduct and that the plaintiff suffered damages in
a specific amount as a result.

Pursuant to Article 116 of the ICCP, the judge evaluates the
evidence, except conclusive evidence (i.e., the evidence which binds
the judge to a specific evaluation) and outcome (e.g. admission,
oath)).42 In particular, the judge is free to decide which exhibits and
which witness statements to consider and, in general, which evidence
on file is more suitable to support the decision. All of these decisions

41. For instance, identity could not be proven through an application of the "modus
operandi" theory. Id.

42. Where conclusive evidence like admissions or oaths is offered by one party, the
judge cannot decide whether to believe it or not. The judgment on the probative value of
such evidence has already been made by the legislator. If relevant in the case, this evidence
should be admitted and be considered by the judge in rendering the judgment. Id.

224 [Vol. 20:2



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are within the judge's discretion. The judge is free to exercise this
discretion provided that he gives reasons for his decisions in the
judgment.

There are various types of evidence that parties may offer for the
record. The judge rules on these offerings and admits items he or she
considers admissible and relevant.4 3 This analysis will merely consider lay
and expert testimony and exhibits, which are the most common types of
evidence in a civil proceeding.

2.6.1 Lay testimony and expert testimony

The rules governing witness testimony are set forth in Article 244 in
the ICCP. Additional provisions concerning testimony are set forth in
Article 2721 of the Italian Civil Code ("ICC"). Article 246 ICCP provides
that the witness should not have any personal interest in the case where he
testifies. There is no express requirement as to the personal, first-hand
knowledge of the matters upon which the witness will testify; this is an
implied requirement that will be checked by the judge when interviewing
the witness. "Having an interest in the case" means that the witness could
himself commence the same action in which he will testify, file an
intervention in that action, or call a third party to join to that action."

If a witness with a personal interest in the case testified in the same
case, his testimony would be null. However, a party's objection is required
to exclude the testimony as the court cannot raise the issue sua sponte.
Counsel is not allowed to directly examine and cross-examine witnesses;
only the judge can do that. The parties can, however, submit questions to
the judge which they would like him to ask the witnesses. Such questions
should be framed separately and specifically and indicate the persons who
should be examined and the facts upon which they should testify.

Therefore, a request to the judge to examine the witnesses "on all the
circumstances indicated in the complaint" would be improper because it is
not divided into separate queries concerning the single facts and
circumstances upon which the witness should testify. The requirement for
specific queries to pose to the witness is intended to allow the judge to
check the admissibility and relevance of the single questions and to allow
the opposing party to object as to the relevance and admissibility of each
question. Each question answered by the witness will constitute evidence,
which will be admitted only if it complies with the applicable rules of
evidence on relevance and admissibility. The judge will have to decide
whether or not to allow (and ask) such questions to the witness on the basis
of those rules.

The credibility of a witness is not a condition for the admissibility of

43. See supra para. 2.3.
44. See Cass., no. 6894/2005.

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IND. INT'L & COMP. L. REV.

the testimony, and the judge does not have the power to exclude testimony
because he believes the testimony is unreliable. This is a legislative
requirement. Provided that a witness has no personal interest in the case,
he should be presumed credible and his testimony should be admitted.
Once admitted, it will then be up to the judge to disregard this testimony if
it is found unreliable when rendering the judgment. Testimony is rendered
under oath and the opposing party can challenge it through additional
evidence and, eventually, through a charge of false testimony which could
result in the judge's referral to the Public Prosecutor for due inquiries.

The testimony should concern facts and not opinions. However, the
witness may testify about his ideas and opinions on how the fact occurred
when these ideas and opinions are strictly linked to the witness's perception
and knowledge of the event.4 6 The experts are qualified witnesses who
render opinions on specific issues concerning their specific field of
expertise. Each party can offer the report of an expert into evidence to
support his claim or defense without prior authorization by the judge. The
report is admitted into evidence once it is filed.47

The judge is also entitled to, and frequently does, appoint his own
expert any time he needs the assistance of a qualified expert to solve
technical issues. The costs of using an expert are charged to the party
requesting the expert or equally to both parties if the judge requested the
expert. In this event, the parties are able to appoint their own experts to
review and comment upon the work of the judge's expert. The experts -
either the judge's or the parties' - will not need to show that they are
qualified to offer their testimony as experts in the field in which they claim
to be experts. Their expertise is presumed. However, the parties retain the
power to challenge this presumption. This process is used to prevent the
judge from taking the challenged expert's opinion into account.

Generally, a judge's expert will be appointed to help the judge in
evaluating evidence already collected where specific expertise is required.4 8

However, under special circumstances where technical expertise is the only
possible means to collect evidence, it will be used to this end as well. In
any event, the party with the burden of proof will not be able to shift this

45. As a general rule, as far as the witness has no personal interest in the case and his
testimony is relevant, the testimony is admitted. It will be then up to the judge to disregard
that testimony if he believes that is not reliable or it is contradictory. However, the judge
cannot decide not to examine witnesses because he believes, a priori, that their testimony
will not be reliable.

46. See Cass., 5/2001.
47. The expert's report is basically treated as an exhibit that is admitted once it is filed.

In other words, the judge should not make any specific evaluation in order to admit it into
evidence, but could decide not to consider it if it is not relevant. See infra para. 2.6.2.

48. The appointment of a technical expert falls within the discretionary power of the
judge, but when the judge appoints his own technical expert, the parties are entitled to
appoint their own experts to work together with the judge's expert and ensure that the
parties' rights are not violated.

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burden to the judge's expert. Technical expertise is not evidence by itself,
but merely a "means of collecting evidence" and is primarily a tool in the
hands of the judge and the parties to help them evaluate evidence already
collected in the proceeding.

2.6.2 Exhibits

Exhibits are moved into evidence by their filing with the court
without any prior evaluation by the judge as to their admissibility or
relevance in the case. Once admitted, the judge decides whether to take
them into account when deciding the case. The party filing an exhibit is not
required to "lay the foundation" for its admission, or specifically "identify"
it by providing information about the document, or show that it is authentic.
Similarly, there is no "best evidence" rule and generally copies and
duplicates are admitted instead of originals even when the content of the
exhibit must be proven.

However, parties may object to the authenticity of exhibits, claiming
that they could have been tampered with. The opposing party could object
by claiming that the document is false. For instance, the defendant could
object to a letter filed by the plaintiff, who claimed that it was written by
the defendant, by counterclaiming that it was not actually written and
signed by the defendant. The defendant could then either file a forgery
claim4 9 within the proceeding, or file an autonomous claim in a separate
proceeding. The decision to challenge an exhibit's authenticity is,
therefore, left to the parties. However, absent any such challenge, the
exhibit is admitted as if there was a stipulation by the parties. Exhibits are
usually considered more reliable than witness testimony, which could
present memory, perception, narration, or sincerity problems.

2.6.3 Burden ofproof

As a general rule, Article 2697 ICC provides that, "Whomever wants
to claim the existence of a right in a proceeding, should prove the factual
grounds of it. Whomever objects as to the existence of the claimed right,
should prove the factual grounds of the objection." However, the burden of
proof may be upon the plaintiff or upon the defendant, depending on the
specific claim or defense. Italian law does not have a graduated set of
burdens to apply in civil proceedings.

49. Here, the forgery claim - filed within the proceeding where the forged document
has been exhibited or in a separate proceeding, an action for forgery ("querela di falso") - is
a civil claim or civil proceeding, where only the probative value of the document is
considered: if the document is forged, it is not "authentic" and should be disregarded as not
relevant and inadmissible evidence. Forgery, however, may be also the object of a criminal
proceeding, where the conduct of the person committing forgery will be judged.

2010] 227



IND. INT'L & COMP. L. REV.

2.7 Facts and evidence gathering: no discovery but an evidentiary phase in
a single judge-directed proceeding

Facts and evidence may be presented from the very first pleadings:
the complaint, and the answer. Although ideally the parties present all facts
and offer evidence by the complaint or by the answer in order to frame the
"theme" of the case as soon as possible,50 they are not obligated to do so.
Rather, the parties may describe the facts of the case by (and not later than)
the pleadings under Article 183, sixth paragraph, no. 1 of the ICCP.51
They may also offer evidence by (and not later than) the pleadings under
Article 183, sixth paragraph, no. 2 of the ICCP. 52

Outside of admitting exhibits, the parties must request that evidence
be admitted.13 The offers of evidence are made in writing (in the relevant
pleadings), and parties can object to them for two reasons: inadmissibility
and irrelevance. 54 There is no discovery, and the fact-finding and offer and
collection of evidence phase starts from the very beginning of the
proceeding and lasts until the filing of the pleadings pursuant to Article 183,
sixth paragraph, no. 3. The Italian proceeding is not designed to be an
"ongoing" process where complaints and answers may be amended through
the conclusion of the proceeding in light of the evidence offered and
admitted during the evidentiary phase. It is not a flexible tool in the hands
of the parties primarily intended to satisfy their interests.

There are specific deadlines and many formalities" that should be met

50. The rules governing the content of the complaint (see art. 163 C.P.c.) and of the
answer (see art. 167 C.P.c.) encourage them do to so. See GRossi & PAGNI, supra note 29.

51. This is the first pleading exchanged by the parties soon after the first hearing and
after the filing of the complaint and answer. By this pleading, parties should specify the
content of their respective claims and defenses and, therefore, the facts constituting the
grounds of same claims and defenses.

52. Specifically, art. 183 describes the content of the pleadings which the parties may
exchange after the complaint and the answer. By these pleadings, the party may amend their
claims and defenses (by the time limit set forth in art. 183, sixth para., no.1), offer evidence
to support their claims or defenses (by the time limit set forth in arti. 183, sixth paragraph no.
2), and offer rebuttal evidence (by the time-limit set forth in article 183, sixth para. no. 3). As
a general rule, and unless exceptional circumstances occur, these time limits are final and
cannot be extended by the judge. Evidence in rebuttal, however, may be offered in the
following brief, pursuant to art. 183, sixth para. no. 3 C.P.c. See GROSSI & PAGNI, supra note
29.

53. See supra para. 2.6.2.
54. As an example, a testimony rendered from a person who has a personal interest in

the case, would be "inadmissible." A testimony which does not prove or disprove a
"material" fact in the case would be irrelevant. Similarly, a testimony offered to prove the
content of a contract, which should have been proved in writing, is inadmissible; if evidence
of the contract is not useful to prove or disprove a material fact in the case, then it is not
relevant. Therefore, the party could object that this testimony is not relevant and should not
be admitted. See supra para. 2.6.

55. The rules on service of process and power of attorney offer good examples of such
formalities.

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

for the proceeding to move forward. The claims and defenses cannot be
amended after the specific time limits set forth in Article 183 of the ICCP in
which time limits expire before the evidentiary phase (where evidence,
other than exhibits, is offered and admitted) is even commenced.
Therefore, a judgment rendered at the end of such proceeding could lack
"rationality." It could not be logically based on the full record as it
developed throughout the whole proceeding on the basis of a logical
reasoning;S6 thus, it is unfair.

Soon after, the filing of the pleadings under Article 183 of the ICCP
hearings for the admission of evidence is scheduled. During those hearings,
the judge hears testimony or admits evidence requests that he previously
granted by order. The evidentiary hearings are devoted to the admission of
evidence and discussions of the issue of admissibility or relevancy of that
evidence. There can be more than one evidentiary hearing if the admission
of evidence cannot be completed in one hearing."

The judge is always present during the proceeding and directs and
supervises the parties and the whole development of the proceeding. The
judge has proven to be very important for counsel, who otherwise might
have problems in managing the proceeding and decide by themselves, on
the basis of the provisions of the ICCP, which facts and evidence should
support their respective claims and defenses."

2.8 No settlement within the proceeding

Settlement is generally considered an efficient tool in the hands of the

parties in order to prevent or solve litigation once a suit has been brought.

56. For instance, where the evidence offered during the evidentiary phase made it
proper to file new claims, that was not possible to file - unless in the extreme and
exceptional circumstances under art. 184 bis C.P.c. - since the time limits to file and amend
claims and defenses would have already expired, under art. 183, sixth para. no. 3.

57. For instance, it may be that many witnesses should be examined and cross-
examined and that the examinations cannot be completed in one day. In this event, the judge
will schedule another hearing, and maybe other hearings, as many as necessary to complete
the admission of evidence (for example,, the examination of witnesses). See GRossI &
PAGNI, supra note 29.

58. This has also been demonstrated by the discipline of the proceeding for company
law matters, set forth in Legisl. Ital. Decree no. 5/2003. That proceeding is divided into two
parts: the first part, where parties exchange pleadings without the judge's intervention; and
the second part, where the parties appear before the judge to discuss the case. The provisions
governing the phase taking place in the absence of the judge are complex, and sometime
counsel are not able to correctly construe them. In these events, they request the judge's
intervention to overcome the impasse and tell them how to proceed. However, such
difficulties might be due to the ambiguity in the provisions themselves, which call for a
judge's clarifications. Id.
Whatever the answer be, the phase of the proceeding accomplished in the judge's absence -
in the proceeding specifically dealing with company law issues - did not have much success
in Italy, and the company law proceeding discipline is going to be repealed by the new
reform of the C.P.c.

2010] 229



IND. INT'L & ComP. L. REv.

Settlement procedures are viewed favorably by the judiciary because
settlements reduce the judge's caseload. Despite this general understanding
and various attempts by the Italian legislature to introduce settlement
procedures in civil actions, settlement procedure still remains a "dead"
instrument that is rarely used by the parties.

Article 185 of the ICCP provides a provision that allows the parties to
petition the judge to settle the dispute in an "ordinary"59 civil proceeding
anytime after the commencement of the action. However, cases are very
rarely settled once they go to court, since parties are almost never willing to
do so, especially at the beginning of the litigation when, according to the
provision set forth in Article 185 ICCP, settlement should happen. This
may be due to the lack of a "culture of settlement." The parties to an Italian
action are generally not "educated" on the advantages of settling the case,
and they prefer to go to court to take their chance on winning there.o

Both the lack of a settlement culture and the lack of any real duty of

the judge to try to settle the case between the parties,61 at the beginning or
throughout the proceedings, make the Italian proceedings inefficient.
Litigating a case where there is no real need to do so generates high costs,
which could be easily avoided through settlement. Not only could the case
be settled entirely, but there could also be undisputed issues that could
easily be disposed of through settlement.

In addition to the lack of a culture of settlement, this general refusal to
try to settle civil litigation may also be because at the beginning of a
proceeding and until its end, once the evidentiary phase is closed, each
party does not know which evidence the opposing party is going to use to
support its claims or defenses. In the Italian proceeding, in fact, there is no

59. "Ordinary proceedings" means proceedings which are not governed by special
rules, such as precautionary measures proceedings, labor proceedings, company law
proceedings, etc.

60. Mediation is not yet a popular ADR tool in Italy. While there are examples of
mandatory mediation in the Italian legal system (e.g. in family law, in labor issues and in
disputes concerning specific corporations' subject matters) and of private mediation - held by
the ADR Center in Rome and by the Milan Chamber of Arbitration - the tool is not used as a
real dispute resolution tool. The number of cases held by private mediation providers is low
and mandatory mediation is entered just as a necessary step to access the ordinary justice in
court.

61. Before the reform of civil proceedings accomplished by Law no. 80/2005, art. 183
C.P.c. provided that, at the first hearing the judge should interview the parties as to the facts
of the case and, where possible, try to reconcile them. In other words, differently from what
is now provided by art.185, C.P.c., it was not up to the parties to request the judge to try to
settle the dispute, but the judge had a duty to do so where the litigation was such that
settlement could be attempted. Despite the former provision of art. 183 C.P.c., judges very
rarely tried to settle the dispute between the parties appearing before him, considering that
the parties had no intention whatsoever to try to settle the dispute just at the beginning of the
proceeding. Consequently, and in view of the general practice, the provision for judges'
settlement attempt at the beginning of the proceeding was eliminated. See GROSSI & PAGNI,

supra note 29.

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

discovery. Therefore, the information which a party decides to "disclose" is
only that information that it deems useful to support its own position.62

Once cases reach the point of litigation, they very rarely settle during the
proceeding, and they end by a judgment, usually after two or three years in
the first instance, three or four years at the appellate level, or after
additional three years at Corte di Cassazione's level.

2.9 Judgments

At the end of the proceeding, judgment is rendered within thirty days
following the filing of the final pleadings in rebuttal in cases of litigation
pending before a single judge. Judgment is rendered within sixty days
following the filing of the final pleadings in rebuttal when the case is
decided by a panel of judges. This, however, is not a final time limit for the
judge who usually issues the judgment much later.

The text of the judgment is mainly divided into three parts: the facts,
the applicable law, and the holding. The text of the judgment does not
contain any dissenting opinion. Judgments rendered by lower courts and
those rendered by the superior courts are not binding. But they usually
influence the decisions.' This does not mean that precedent is binding upon
courts, but that precedent can and usually does influence future decisions by
judges, irrespective of the hierarchy among them, if the judgment is well
reasoned and well-grounded and contains a good interpretation and
application of the law.65

Typically, a judge does not grant relief which was not specifically
petitioned for by the parties. This is because there has to be a strict
correspondence between what relief has been demanded by the parties and
what relief is finally granted by the judge. This, on some occasion, might

62. It is in fact true that in Italy parties are encouraged to set their claims and defenses
at the very beginning of the proceeding, in their complaint and answer. However, this is
rarely done, because parties prefer to wait until the very end of the proceeding to show their
complete "theme." This, in the absence of discovery, truly affects the possibility of a
settlement during the proceeding. Id.

63. The median time for disposition in federal courts is not that different -
approximately two years. Ordinary cases in federal courts would never go to the Supreme
Court.

64. The Trib. or the Corte app.'s decision might also influence the Cass.'s judgments,
since hierarchy among courts does not prevent such influence.

65. The same thing is true in the United States, at least to a large degree. For instance,
while a district court in New York is bound by the decision of the U.S. Court of Appeals for
the Second Circuit, it is free to, and often does, look at opinions of other courts, at any level
of the hierarchy, for precedents, whose opinions are influential if well-reasoned; however,
they are not binding. See GROSSI & PAGNI, supra note 29.

66. Art. 112 C.P.c. provides that "Il giudice deve pronunciare su tutta la domanda e non
oltre i limiti di essa; e non puo' pronunciare d'ufficio su eccezioni, che possono essere
proposte soltanto dalle parti." (The judge shall state over the whole claim and within its
limits; he shall not state sua sponte over objections which may be raised only by the parties).

2010] 231



IND. INT'L & COMP. L. REV.

appear very formal and could run contrary to the whole development of the
proceeding, It can also result in an outcome that is irrational, illogical, and
unfair.

2.10 Appeal

Judgments can be appealed before the Corte d'Appello after showing
grounds for appeal. Usually the grounds for appeal concern the
interpretation of the law, the granting or denial of evidence, and the
interpretation of facts. The complaint on appeal does not comply with a
specific layout but it should indicate and specify the grounds upon which
the appeal is sought.

Similarly, no specific layout is required for the motion for review
(ricorso in Cassazione) before Corte di Cassazione. However, the grounds
upon which a judgment issued by Corte d'Appello is challenged before
Corte di Cassazione should be specifically indicated and specifically
complied with those listed under Article 360 ICCP. The list of grounds for
appeal before Corte di Cassazione set forth in Article 360 ICCP is
exhaustive, and the grounds merely concern errors of law, and not errors of
fact. Corte di Cassazione will review the appellate court's judgment as to
the application of the law to fact. No further review of the facts of the case
will be accomplished, and no new claims or evidence will be considered.

III. GENERAL OVERVIEW OF THE U.S. PROCEEDING BEFORE

U.S. FEDERAL COURTS

The U.S. court system consists of fifty state court systems plus a
similar system for the District of Columbia and a separate system of federal
courts. The federal courts and most state court systems are organized into
trial courts (the U.S. district courts in the federal system), intermediate
appellate courts, and a Supreme Court. As explained below,68 federal
courts have limited jurisdiction; they may only hear cases raising a federal
question or cases based on diversity of citizenship where a substantial sum
is at stake.

State courts, in contrast, can hear practically any sort of case,
including most cases involving federal claims. With respect to state law,
the individual state supreme courts have the final authority. As to federal
issues (including constitutional ones), state courts are subject to the
oversight of the United States Supreme Court.

The diversity of U.S. court systems poses a problem for a

Id.
67. For a general overview, see Geoffrey C. Hazard, Jr. and Michele Taruffo,

AMERICAN CIVIL PROCEDURE : AN INTRODUCTION (1997). See also John B. Oakley, Vikram

D. Amar, CIVIL PROCEDURE, IN INTERNATIONAL ENCYCLOPAEDIA OF LAWS, VOL. 5 (2001);

Jack H. Friedenthal, Et. Al., CIVIL PROCEDURE (4th ed., 2005). See also infra App. A.
68. See infra para. 3.2.

[Vol. 20:2232



A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

comparative analysis. Dealing fully with the variations among the various
state courts and between them and the federal courts would unduly expand
the length of this Article. At the same time, most judicial systems in the
United States are variations of a central theme. Procedurally, for the last
seventy years that theme has been played by out in the federal courts. For
that reason, this Article will treat the federal courts as typical of the various
U.S. court systems. Although it will take note of major variations to the
extent they appear important to the overall analysis.

3.1 The appointment ofjudges

Justices of the Supreme Court, the circuit courts of appeals, and the
district courts are appointed by the President of the United States with the
advice and consent of the Senate. These are life appointments and can only
be removed through impeachment by the Congress for "high crimes and
misdemeanors." There is no statutory qualification for judicial appointment
to the Supreme Court or the lower federal courts. The process of
appointment of a federal judge starts from a judicial vacancy. A vacancy
occurs when a judge dies, resigns, is impeached by Congress, or where a
new position is created by Congress.

Congress is involved throughout the process of appointment of
federal judges, including both in the selection of candidates and
confirmation of nominations. Congress's influence in the selection of
potential candidates lies in its capacity to make recommendations.

As a general rule, in the United States judges do not specialize in
specific subject matters. American judges are lawyers who have been
appointed to the bench. They still think of themselves as lawyers, and they
often go back to being lawyers after they resign from the bench. In the
United States, lawyers and judges are divisions of a single legal profession
and are separated from each other only by a permeable membrane. It is
quite natural for judges selected this way to play the relatively passive role
that judges play in the U.S. system.

Similarly, United States judges do not have a career ladder that they
can climb based on their skill at resolving cases. At best, working one's
way up means getting appointed to an appellate court. Such appointments
are not the result of meritocratic advancement from the lower court bench.
Many appellate judges were never district court judges. The absence of a
definite career ladder and responsibility for the job one does at an entry
level court supports the U.S. model of a passive judge managing a civil

69. Specifically, the Senate is involved while the House of Representatives has no
formal role in appointment of judges. On the other hand, senators have a very important role,
not only collectively, but as to judges in their states, individually as well. This is especially
the case when the senator is of the same political party as the president.

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IND. INT'L & COmp. L. REv.

litigation process largely driven by the lawyers.7 o

3.2 Personal and subject matter jurisdiction and venue of litigation

When filing a complaint before a court, the plaintiff should check that
the court has jurisdiction, specifically, subject matter jurisdiction and
venue7

1 over that particular dispute brought before it. Furthermore, the
court should have personal jurisdiction. That is, the court should have
power to enter a judgment which would be binding on the defendants
involved. Usually, state or federal constitutional provisions or statutes
determine whether specific courts have subject matter jurisdiction over
certain categories of controversies.

The federal court system derives from two main documents: Article
III of the United States Constitution, and the Judiciary Act of 1789. Article
III, Section 1, of the Constitution provides, "The judicial Power of the
United States, shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish."
Section 2 of Article III defines the permissible scope of federal judicial
power, listing the areas in which federal subject matter jurisdiction may be
asserted. Congress has no power to extend the subject-matter jurisdiction
beyond the limits set forth by Article III of the Constitution, and if it does
so the grant is unconstitutional.72

On the other hand, the 1789 Judiciary Act establishes the doctrine that
the actual scope of the jurisdiction of the federal courts at any given time is
governed by the relevant jurisdictional statutes passed by Congress, even if
the outer limits of permissible federal judicial power are set forth by the
Constitution.

Subject matter jurisdiction of the federal courts is limited by both the
Constitution and by statutes. Plaintiffs must show subject matter
jurisdiction at the outset of the case. Subject matter jurisdiction cannot be
conferred upon the federal courts by agreement of the parties. Absence of
subject matter jurisdiction cannot be waived by the parties. Federal courts
have subject matter jurisdiction (i) where the plaintiffs' clam is based on
federal law or (ii) in diversity cases, that is, where a case is brought by a
citizen of a state against a citizen of another and the amount in controversy

70. However, as political as the selection of federal judges may seem, it is not nearly as
political as the process for selecting state judges. In many states, judges are elected, and in
many others they are appointed for a limited term initially and then required to run for
election within a certain period of time. Few if any state courts grant life tenure to judges.
Among other things, this method of selection means that state judges are even less likely to
think of themselves as a separate professional cadre and are in even more close affinity to
practicing lawyers.

71. Rules concerning venue allocate cases among the same type of courts having
jurisdiction over a case, within a given judicial system. See 28 U.S.C. § 1391.

72. Hodgson v. Bowerbank, 9 U.S. 303, 304 (1809).

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is at least $75,000.73 In those cases, by and large, federal courts' jurisdiction
is concurrent with state courts' jurisdiction. However, there are some cases
where federal courts have exclusive jurisdiction, as in bankruptcy
proceedings.

3.3 Main structure of the civil proceeding

Mainly, the procedure before trial courts can be divided into two
phases: (i) a pre-trial phase, which takes place between the parties with
minor involvement by the judge; and (ii) a trial phase, which takes place in
court before the judge and a jury, where the right to jury trial is provided
and a jury is timely demanded. This Article considers mainly jury trials.
While jury trials are the majority, a very sizable minority of cases are tried
before a judge. It makes sense to focus primarily on the jury trial because
the rules are determined primarily by the jury trial paradigm.

The proceeding commences by filing a complaint before the
appropriate court. Following the filing of the complaint, which must be
served upon the defendant(s). Upon receiving the complaint, the
defendant(s) must file its answer to the complaint, and then the parties
exchange their pleadings provided by Federal Rule of Civil Procedure
("Fed. R. Civ. P.") 7.

The parties may exchange a limited number of pleadings: a
complaint, an answer to a complaint, an answer to a counterclaim
designated as a counterclaim, an answer to a cross-claim, a third-party
complaint, an answer to a third-party complaint, and if the court orders one
- a reply to an answer.

Once the parties exchange their pleadings, they go through the
discovery process. They exchange information concerning evidence they
have or want to obtain from the opposing parties, within the limits of
applicable law provisions. After the discovery phase concludes, the parties
go to trial. At trial, before the judge and a selected jury, they offer their
evidence (including witnesses), present their claims and defenses, and
present final arguments. Once the trial is concluded and the jury is properly
instructed, the jury renders a verdict and a final judgment is issued by the
judge on that verdict.

There are three points at which litigants can try to resolve the case
through motions to avoid the necessity of a trial. First, the defendant can
move to dismiss the complaint on the basis of one of the defenses listed in
Fed. R. Civ. P. 12(b). These defenses include absence of subject matter
jurisdiction, absence of personal jurisdiction, or failure to state a claim on
which relief can be granted. A motion to dismiss under Fed. R. Civ. P.

73. Besides these two major instances of federal courts' subject-matter jurisdiction,
federal courts have jurisdiction in suits where the United States is a party, in admiralty and
maritime cases, in actions between two or more states, and in a few other situations.

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IND. INT'L & COMP. L. REV.

12(b) 7 4 must be made before the defendant answers. Second, at any time
after the pleadings are closed, any party can move for judgment on the
pleadings. Such a motion would assert that a state of facts shown on the
face of the pleadings, including defensive pleadings, entitles one party or
the other to judgment, and development of other facts is unnecessary. For
example, the plaintiffs complaint might show that the claim is barred by
the statute of limitations, or the defendant's answer might contain sufficient
admissions to show that the plaintiff is entitled to judgment.

Third, any party may move for summary judgment under Fed. R. Civ.
P. 56. A summary judgment motion is different from a motion for
judgment on the pleadings in that it may be based on information outside
the pleadings, uncovered in discovery or some other way. The moving
party will be entitled to summary judgment if he shows that there is no
"genuine issue of material fact" and that he is entitled to judgment as a
matter of law. Technically motions for summary judgment may be made at
any time after twenty days from the date of filing the complaint. In practice
judges usually refuse to grant summary judgment until the opposing party
has had ample opportunity to develop his case through discovery.
Summary judgment may be granted on some issues or claims and not
others. So, summary judgment motions are often used immediately prior to
trial to simplify the issues to be tried."

A uniform system of pleading for all suits in federal courts was
established with the promulgation of the Federal Rules of Civil Procedure
in 1938, which also introduced a new simplified approach to pleadings in
federal courts. Pleadings merely had to give "fair notice" (the so called
"notice pleading" system), an approach considerably simpler than the fact
pleading approach then provided in state courts. In the "notice pleading"
system, in order to survive a motion to dismiss under Fed. R. Civ. P.
12(b)(6) (a motion to dismiss the case for failure to state a claim upon
which a relief can be granted), the pleading only needs to contain a short
and plain statement of the claim showing that the pleader is entitled to
relief.77 It is not necessary to plead the operative facts in detail.

Recently, however, the U.S. Supreme Court increased the burden on
plaintiffs in Twombly v. Bell Atlantic.78 The Court in Twombly held that
under the notice pleading standard, the complaint should be not only
cognizable'9 but also plausible,so meaning that the pleading should contain

74. See infra para. 3.7.2.1.
75. Pretrial dispositive motions are discussed in more detail below. See infra para.

3.7.2.
76. See infra para. 3.7.2.1.
77. Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir. 1944).
78. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
79. This was stated in Conley v. Gibson, 355 U.S. 41 (1957), where the Court also said

that a claim should not be dismissed unless the plaintiff cannot prove any set of facts under
which relief can be granted. Id.

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

enough facts to raise a reasonable expectation that discovery will reveal
evidence supporting the claim. Once pleadings have been exchanged,
parties go through discovery - when they exchange information and
evidence - and pretrial conferences.

Under Fed. R. Civ. P. 16 (a), courts have general authority to
schedule pretrial conferences that often, lead to the adoption of orders for
the management of discovery and other matters and preparation for trial."
After pretrial conferences, if the parties have not settled the dispute, a jury
is selected through the voir dire process,82 and the trial starts before the jury
and the judge. During the trial, evidence gathered during discovery will be
offered to the jury under the judge's supervision. At the end of the trial, the
jury reaches a verdict upon which the judge will render a judgment.

3.4 Pro se litigants

No one is required to hire a lawyer. Parties may nearly always
represent themselves in court. But it is rare for litigants to represent
themselves in ordinary civil litigation. As a practical matter, they would
hardly be able to manage the complexity of a case in federal court. This
broad permission for pro se litigation may be due to the lack of any right to
free counseling and legal aid, which would eventually deprive the party of
the right to defense and access to justice had the party no right to litigate
pro se.

However, this system could be highly unfair in terms of a lack of "fair
play." By acting as a plaintiff or by defending himself in court and not
knowing the rules and case law construing the same, the pro se litigant will
not have equal opportunity to file pleadings, respond to opposing counsel's
arguments, offer evidence, etc. Thus, his access to justice will be

80. After Dioguardi, Twombly reformed the notice pleading system. See Kevin M.
Clermont, Litigation Realities Redux (Cornell Legal Studies, Research Paper No. 08-006,
2008), available at http://ssrn.com/abstract-l 112274 (observing that "This move represents
the Court's first unmistakable step backward from the modem conception of notice
pleading").

81. FED. R. Civ. P. 16(b) is a required conference. It happens near the beginning of the
case and results in a scheduling order governing the time for joining any further parties,
amending pleadings, filing motions, and completing discovery. In complicated cases, the
scheduling order can be much more detailed even than this. The schedule may only be
modified for good cause.
FED. R. Civ. P. 16(d) also requires a final pretrial conference, where the judge and parties
formulate a plan for the trial, including admission of evidence. After the final pretrial
conference, the judge will enter a final pretrial order, which can only be amended to prevent
"manifest injustice." Therefore, there are at least two pretrial conferences in any case,
however simple, that is, the FED. R. Civ. P. 16(b) scheduling conference and the FED. R. Civ.
P. 16(d) final pretrial conference. In more complicated cases there will be a number of other
pretrial conferences that are designed to monitor the progress of the case and make
midcourse corrections. Each of these gives rise to a pretrial order that modifies the previous
pretrial orders governing the course of the case. Id. For further information, see also infra
para. 3.7.

82. See infra para. 3.5.

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IND. INT'L & COMP. L. REV.

substantially impaired. Forms of legal aid should be provided and are
highly encouraged.

3.5 Jury 3

According to the Seventh Amendment of the U.S. Constitution, "In
suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a
jury, shall be otherwise reexamined in any court of the United States, than
according to the rules of the common law." A similar guarantee can be
found nearly in every state constitution.8

The right to jury trial, as it existed at common law in 1791, when the
Seventh Amendment was ratified by the original states - is not created, but
"preserved" by the Amendment in "suits at common law."8 Historically, a
right to jury trials did not exist in suits that sought only equitable relief,
such as an injunction or specific performance. After the Seventh
Amendment, therefore, cases at law continued to carry the right to trial by
jury in federal courts, while suits in equity continued to be decided by
judges, the distinction being based primarily on the nature of the relief
sought. Therefore, by designating the right to relief sought, the plaintiff is
able to control his right to a jury trial. However, such distinction is not so
simple and the U.S. Supreme Court has tried to clarify this issue through a
series of decisions, the most important of which are Beacon Theater Inc. v.

86 8Westover, Dairy Queen Inc. v. Wood,87 and Ross v. Bernhard." In Beacon
Theater, the Court held that when a remedy at law is available, a
constitutional right to a jury trial exists regardless of whether historically
the action would have been tried in equity. In Dairy Queen, the Court
further specified that only the most imperative circumstances may lead to
an exclusion of the right to a jury trial.

Finally, further defining the conditions for the existence of the right to
a jury trial, the Court stated, "As our cases indicate, the legal nature of an
issue is determined by considering, first, the pre-merger custom with
reference to such questions; second, the remedy sought; and third, the
practical abilities and limitations of juries."8 Courts which have adopted

83. See FRIEDENTHALsupra note 67, at 488.
84. However, Colorado, Louisiana and Wyoming have no constitutional guarantee to

jury trial in civil cases. See FRIEDENTHAL supra note 67, at 507.
85. However, even if the right to jury trial is "preserved" by the VU1 Amendment to the

U.S. Constitution and only upon the most compelling circumstances can "the right to a jury
trial of legal issues be lost through prior determination of equitable claims," the litigants may
waive such right if they do not make a timely demand for a jury trial. See FED. R. Civ. P.38.

86. 359 U.S. 500, 510-11 (1959).
87. 369 U.S. 469, 82 (1962).
88. 396 U.S. 531 (1970).
89. Id. at 538. The court's reference to pre-merger custom" means the custom that

existed before the "merger" of law and equity (formerly, two separate systems with separate

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the Ross test have, nevertheless, generally refused to apply the third
complexity criterion.90

The jury is a fundamental institution in the American proceeding and
in Beacon Theatres, Inc. v. Westover9l and its progeny, the U.S. Supreme
Court stated that trial by jury is "the normal and preferable mode of
disposing of issues of fact in civil cases at law as well as in criminal cases.
Maintenance of the jury as a fact-finding body is of such importance and
occupies so firm a place in our history and jurisprudence that any seeming
curtailment of the right to a jury trial should be scrutinized with the utmost
care."92

Not only is the jury a constitutional actor in the American legal
process, the jury also tremendously shapes and influences that process and
the law governing the same. The jury has three tasks to accomplish: (1)
determining the facts; (2) "evaluating the facts in terms of the legal
consequences as formulated by the trial judge in the jury instructions"; and
(3) deciding in the form of a verdict.93 However, the jury is not composed
of legal professionals, and they usually do not know anything about the law
governing the case prior to their selection to the jury; therefore, they are
instructed as to the applicable law by the judge.

Pursuant to Fed. R. Civ. P. 48, in civil litigation the jury should be
composed of at least six members and the verdict should be unanimous,
unless otherwise stipulated by the parties.

Parties have an opportunity to shape the jury by challenging jurors.
Each party has an unlimited number of challenges "for cause." They may
challenge a potential juror who does not have the statutory qualifications,
may be biased, or has a relationship with one of the parties or counsel.
Furthermore, each party may challenge three potential jurors for any reason
or no reason through the "peremptory challenges."94 Parties will use these
challenges to avoid jurors who they believe are likely to be hostile, but for
whom there is an insufficient basis for a challenge for cause. Parties
determine whether a juror is subject to challenge for cause (or ought to be
challenged premptorially) through "voir dire," a procedure used to gather
information about prospective jurors. Sometimes the lawyers for the parties
question jurors, and sometimes the judge questions them with substantial

rules) in 1938. Id.
90. See FRIEDENTHAL, supra note 67, at 533.
91. 359 U.S. at 500.
92. Dimick v. Schiedt, 293 U.S. 474, 486 (1935).
93. See FRIEDENTHAL, supra note 67, at 512.
94. FED. R. Civ. P. 47(b) requires the court to allow the number of peremptory

challenges provided by statute, 28 U.S.C § 1870. The statute provides: "In civil cases, each
party shall be entitled to three peremptory challenges. Several defendants or several
plaintiffs may be considered as a single party for the purposes of making challenges, or the
court may allow additional peremptory challenges and permit them to be exercised
separately or jointly." All challenges for cause or favor, whether to the array or panel or to
individual jurors, shall be determined by the court."

2010] 239



IND. INT'L & COMP. L. REv.

input from the lawyers.95 Voir dire provides the parties with the information
they need in order to persuade the jury. It also provides the factual basis for
arguments to the judge that particular jurors should be disqualified for
cause.

The idea that the parties actively participate in the process of selecting
their jury seems strange when compared to Italian judges, who develop a
reputation for impartiality through training in a kind of administrative
bureaucracy. Here, "impartiality" of the finder of facts comes from a sort
of "scrubbing" by the parties. This process of selecting the trier of facts is
consistent with the adversarial nature of the American proceeding: if one
side is better at jury selection than the other, it will gain an advantage. The
judge does not play an important role in selecting the jury. He may ask the
questions that disqualify people who are clearly not qualified for some
reason. However, the real jury shaping is done by the parties, and not by
the judge. The purpose of the parties' participation is not to check the
powers of the judge but to affirmatively influence the composition of the

jury.
Once the jury has been impaneled, it hears evidence which is

presented by counsel under the judge's supervision. Pursuant to the
relevant federal rules of evidence, the judge supervises the process of
evidence selection and allows the relevant and admissible evidence to get in
and be taken into account by the jury, while precluding the introduction of
irrelevant and inadmissible evidence. The jury then has to judge the
evidence offered at trial in light of the instruction which will be provided to
it by the judge either during (in case of limiting instruction)96 or after trial
and either before or after the parties' closing arguments.

Once all the evidence is presented to the jury, the jury makes its
decision by a general or special verdict or by a verdict that is a mixture of
the general and special verdict. By the general verdict, the jury simply
indicates which party wins the case, without giving further explanation for
such decision. In contrast, when adopting the special verdict, the jury
responds to a list of factual issues with reference to which the court will ask
the jury to make findings. In this case, the judge then applies the substantive
law to these findings and enters the appropriate judgment.

95. Some courts also use questionnaires to explore jurors' attitudes on certain subjects
in greater detail than can be done on oral examination.

96. When the judge deems that an offered item of evidence is admissible for a specific
use, but would be inadmissible for another use, he will instruct the jury consistently, warning
it that it will be able to consider that item only for the instructed permissible use.

97. Parties ordinarily submit requests for jury instructions under FED. R. CIV. P.
51(a)(1). This is done either at the close of the evidence or at an earlier point ordered by the
court (in which case the parties may have the opportunity to supplement their requests). The
court must inform the parties of its proposed instructions, give them an opportunity to object,
and rule on the objection. See FED. R. CIv. P. 51(b)(l}-(2). It is in the debate over jury
instructions that the parties set forth their views of the law and the judge makes rulings that
may be the basis for an appeal.

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The judges make the decision as to which form of verdict the jury
should use.98 They usually prefer general verdict forms because framing
the issues to submit to the jury may be difficult and time consuming,
especially in complex cases.99 Special verdicts may be considered an
intrusion in the jury's domain and an abuse of control over the jury.

General verdicts may lead to problems because they make it
impossible to see whether the jury made its decision after careful
consideration of the judge's instructions or whether the decision was based
on emotion and bias. 00 At best, the special verdict form would allow a
more precise check against a jury totally misunderstanding the case. If the
jury rendered a special verdict, the lawyer could look at inconsistent
answers in order to create a basis for an appeal, or more likely, a new trial.
Still, the underlying reasoning adopted by the jury would not be disclosed
to the parties, who then will have no way to check whether that reasoning
was "right" or "wrong." The litigants rarely know what actually happened,
and no one provides an account for the real basis of the decision, if there is
one.

Here, the system seems unfair because it runs contrary to most of the
fairness criteria of rationality, predictability, and fair play. It runs against
rationality because the judgment thus rendered is not "clearly" based on the
records and reached after logical reasoning that can be shared by reasonable
people. The reasoning followed by the jury is not shown to anybody and
remains in the jury's "black box." It runs against predictability in that the
decision rendered on the basis of the verdict cannot be reviewed under the
reasoning criteria and schemes, which were adopted by the jury. A system
where the grounds for review on appeal are more clear and depend less on
discretion and on factors which are not "disclosed" to the parties would be
more fair and desirable.

Practical reasons have been offered to keep the jury's reasoning "not
public." First, it would be impracticable to have six or twelve jurors to
agree on the same reasoning to support their verdict. Second, jurors are lay
people who are not used to writing reasoning that supports findings of fact;
this would require a level of technicality that they do not possess. Finally, a
secretary to the jury would probably be necessary to this end, and such an
addition is impractical.

In any event, the jury decision making process is a matter of ideology:
the jury represents the democratic community in applying community
standards to the matter at hand, regardless of what the law may be. In short,
the strong version of jury ideology is a negation of the rule of law. The

98. Broad. Satellite Int'l, Inc. v. Nat'1 Digital TV Ctr., Inc., 323 F.3d 339 (5th Cir.
2003); Davis v. Ford Motor Co., 128 F.3d 631 (8th Cir. 1997).

99. FRIEDENTHAL,supra note 67, at 571.
100. See Skidmore v. Baltimore & 0. R., 167 F.2d 54 (2d Cir. 1948), cert. denied, 335

U.S. 816.

2010] 241



IND. INT'L & COMP. L. REv.

system will not go there, but it stops quite far from subjecting jury decisions
to a rational restraint. The main tool the system uses is the power of the
judge to order a new trial,' 0 ' which does not substitute for the jury's
decision but instead obtains the decision of a new jury.

However, many cases are tried to a judge. These are not the
paradigm, but they are the majority.IO2 It is not clear whether judges decide
cases differently from juries, but the form is certainly different and more
transparent. The judge has to make findings of fact and conclusions of law,
will have a very thoughtful opinion, and will be subject (so far as findings
of fact are concerned) to appellate review in a way that the jury is not.
Judge-made decisions are subject to the "clearly erroneous" standard.'o3

Specifically, the appellate court will affirm the judgment, unless the finding
of fact is clearly erroneous, but that is a lot different from passion or
prejudice. There is an element of reasoned decision-making in this kind of
case that is missing from jury trials. Trials to the judge also have a big
effect on the rules of evidence, since judges resolve any doubts by letting
evidence in and then taking its worth into account. Trials to the judge in
Italy and in the United States look more similar and seem more "fair" in
this respect.

On the contrary, when reviewing jury fact finding, the standard is
more strict.'04 To find error at all, the appellate court has to conclude that
the trial court's decision was not merely wrong, but something close to an
unreasonable decision.10 In other words, the appellate court should see
whether there is evidence in the record on which a reasonable jury could
find the required facts to support either the general or special verdict. Only
in this event will the appellate court not reverse the prior decision. 06

This makes it very hard to "review" a jury verdict. Perhaps the only
case in which the assessment of facts contained in the jury verdict could be
truly reviewed is through a motion for a new trial under Fed. R. Civ. P.

101. See infra.
102. As explained above, trials to a judge happen either because there is no right to a jury

trial or because parties waive it.
103. See FRIEDENTHAL, supra note 67, at 640. In recognition of the trial judge's special

expertise, the clearly-erroneous standard is said to preclude the appellate court from re-
determining the weight or credibility of the evidence. Inwood Labs, Inc. v. Ives Labs., Inc.
456 U.S. 844 (1982). It also precludes the appellate court from independently assessing the
inferences drawn from the facts by the trial judge. U.S. v. National Ass'n of Real Estate
Bds., 339 U.S. 485 (1950).

104 "The issue often arises on appeal after the trial judge has denied a motion for new
trial on the ground that the evidence was sufficient to support the verdict" See
FRIEDENTHAL, supra note 67, at 639.

105. See ALLEN, ET AL., EVIDENCE: TEXT, PROBLEMS AND CASES 106 (4th ed. Aspen,
2006).

106. If this would come up in connection with a decision concerning a motion for a new
trial, then the question would be whether the verdict was against the "great weight of the
evidence".

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59.107 In jury trials, through the motion for new trial, which must be made
by ten days after the entry of the judgment, the movant may request the trial
court to order a new trial if the verdict is excessive, inadequate, or against
the clear weight of the evidence. Specifically, the trial court will grant a
motion for new trial for excessive verdict when it determines that the
amount of the verdict is so unreasonable that it shocks the conscience. 08

This is clearly a high threshold that must be met for the trial court to order a
new trial. The amount object of the trial must be so unreasonable as to
shock the conscience.

The court will grant a motion for new trial when verdict is against the
weight of the evidence so that a new trial is necessary to prevent a
miscarriage of justice. The evidence may be such that reasonable people
could find as the jury did, but the verdict still may be manifestly against the
weight of the evidence.109 The trial judge may weigh the evidence and grant
a new trial under these circumstances.o10 Here, the threshold is high,
requiring a strong conflict between the evidence and the verdict itself so
that the order for new trial is necessary to avoid a miscarriage ofjustice.

Here, the question is whether an excessive verdict not so
unreasonable as "to shock the conscience" or a verdict in conflict (even if
the conflict is not that strong) with the weight of the evidence offered at
trial, but not resulting in a "miscarriage of justice" still able to affect the
parties' rights could lead the trial court to grant a new trial. The trial court
will likely not grant a new trial because of the great deference to the jury, a
fundamental institution in the American proceeding.

Whether the circumstances justify the granting of a new trial is a
decision left to the sound discretion of the trial judge.' Such discretion is
so broad that one court has described it as "virtually unassailable on
appeal."ll 2 Usually, judges do not like to grant motions for a new trial
because new trials are expensive and time consuming. Consequently, the
jury's findings of fact hardly get reviewed through motions for a new trial
and hardly get reviewed at the appellate level where the "abuse of
discretion" standard applies. Notwithstanding these factors, the jury is
indeed a fundamental institution of the American legal process and
tremendously affects the process and the law provisions regulating it,
especially the laws of evidence.

3.6 Laws of evidence

As observed:

107. See also infra para. 3.9.
108. See generally Gasperini v. Ctr. for Humanities, 518 U.S. 415 (1996).
109. Bevevino v. Saydjari, 574 F.2d 676 (2d Cir.1978).
110. See FRIEDENTHAL, supra note 67, at 594.
111. See generally Gasperini, 518 U.S. at 415.
112. See Children's Broad. Corp. v. Walt Disney Co., 357 F.3d 860, 867 (8th Cir. 2004).

2010] 243



IND. INT'L & COMP. L. REv.

A more theoretical difference between the American
conception of evidence and that in the civil law system
stems from the fact that the civil law system regards the
judge as an expert in evaluating evidence, while the
American system regards the judge as substituting for a lay
jury in evaluating evidence. The intellectual tradition of
civil law scholarship treats the task of factual analysis as
involving a technical rigor no less exacting than legal
analysis. The method of legal training in the civil law
centers on deductive analysis, which is assumed to be
equally applicable to legal reasoning and to factual
analysis. In contrast, the American system rests on the
premise that assessment of evidence involves no special
expertise. By definition, in a jury case the evidence is
assessed by minds untrained in law; it would be a
contradiction to say that legal training is required to
analyze the facts when jurors do so without any such
training. Moreover, judges in the American system have no
special judicial training before appointment to the bench,
nor are they systematically trained within the court system
or promoted on the basis of experience. When it comes to
factual determination, therefore, the judge in the American
system is regarded as having no special insight."'

This clearly identifies the main differences between the two systems
in terms of evidence and helps to understand the American law of evidence
and the rules and exceptions that are discussed below.

Considering that in the American legal process the jury is the fact-
finder that should determine the facts on the basis of the evidence offered, it
is easy to understand how the rules of evidence are shaped in light of the
presence of the jury in most American civil proceedings. 114 While in the
pre-trial discovery the parties disclose and exchange evidence and
information, evidence will be considered by the jury and the judge only if it
is offered at trial and admitted into evidence. This requires the evidence to
be relevant and admissible.

Besides the Federal Rules of Civil Procedure, a separate set of rules,
the Federal Rules of Evidence ("Fed. R. Evid." or "FRE") governs evidence
admissibility and relevance. There is a general presumption under Fed. R.
Evid. 401 that relevant evidence is admissible unless there is a good reason
under the rules not to admit it. The American concept of relevance in Fed.
R. Evid. 401 seems much broader than the Italian concept of relevance. It

113. See HAZARD, JR. & TARUFFO, supra note 7, at 81-82.
114. See also Richard A. Posner, An Economic Approach to the Law of Evidence, 51

STAN. L. REv. 1477 (1999).

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

allows much more circumstantial evidence as relevant evidence, which in
the Italian system would be neither relevant nor admissible.

The Fed. R. Evid. are designed to limit the amount of information
available to jury members about the case to only those pieces of evidence
that are admitted to the court. This is different from Italian civil proceeding
and has a dramatic effect. In Italy, there is no equivalent performance. The
judge proceeds through the facts in a highly analytic way, takes evidence
more or less as he finds it, gives it the credence it deserves, and then
decides the case and records pursuant to his "cautious evaluation."" 5

Pursuant to FRE 401, in order to be relevant unless where differently
provided, evidence should have "any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence." Relevant evidence
is offered to prove a fact of consequence (materiality). A proposition of
fact is of consequence in a legal dispute, if it matters to the legal resolution
of that dispute. That is, evidence is admissible if it can be connected
through a reasonable, logical, and non-speculative inferential reasoning to
one of the essential legal elements of the substantive law governing the
case.

In general, the policy behind the Fed R. Evid. is to admit "all
evidence which is logically probative""'6 within the limits set forth by the
Fed R. Evid.; it is considered fair to require litigants to be able to address
and explain or contradict all the evidence jurors will consider.

Consistently with this general view, Fed. R. Evid. 402 provides, "All
relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, by Act of Congress, by these rules or by
other rules prescribed by the Supreme Court pursuant to statutory authority.
Evidence which is not relevant is not admissible."

However, even if all admissible evidence is relevant in the United
States, not all relevant evidence is admissible. Fed. R. Evid. 403 sets forth
a balance test which the judge uses to decide whether to exclude evidence
which, although relevant, is highly prejudicial and therefore, not admissible.
Specifically, FRE 403 provides, "Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence." The dangers to which the admission of the item of
evidence may lead are those spelled out by Fed. R. Evid. 403. The
Advisory Committee Note to Fed. R. Evid. 403 clarifies, "Unfair prejudice
within its context means undue tendency to suggest decision on an improper

115. C.P.c. art. 116 provides "Il giudice deve valutare le prove secondo il suo prudente
apprezzamento" ("The judge shall judge the evidence pursuant to his cautious evaluation").

116. James Bradley Thayer, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON
LAW 264 (1898).

2010] 245



IND. INT'L & COMP. L. REv.

basis, commonly, though not necessarily, an emotional one."
Thus, the Fed. R. Evid. recognize that the jury's decision might be

influenced by improper elements, such as bias or prejudice. Therefore,
Fed. R. Evid. 403 is necessary to keep evidence away from the jury that has
a tendency to suggest decision on an improper basis. According to the
Advisory Committee, "In reaching a decision whether to exclude on
grounds of unfair prejudice, consideration should be given to the probable
effectiveness or lack of effectiveness of a limiting instruction." In this
respect, under Fed. R. Evid. 105, when evidence is admitted that it is
admissible as to one party or for one purpose, but not admissible as to
another party or for another purpose, the court, upon request, should restrict
the evidence to its proper scope and instruct the jury accordingly.

Fed. R. Evid. 403 also calls for exclusion of relevant evidence on
efficiency grounds. Where admission of the evidence would lead to undue
delay, jury confusion, or unnecessarily cumulative evidence, it is
inefficient. This gives the judge the authority to check the inclination of
some lawyers to offer everything, even where it may lead to prolonging the
trial and confusing the jury.

Similarly, evidence admissible under Fed. R. Evid. 403 may be
inadmissible under a different provision of the Fed. R. Evid. or other law
provisions. A detailed set of rules within the Fed R. Evid. determines when
evidence should be excluded. The rationale behind most of these
"exclusionary" rules is to allow the jury's decision making process to
properly function and to protect the parties from the risk of an unfair
condemnation or conviction; in a few occasions, the Fed. R. Evid. pursue a
broader public policy."'

An important and distinguishing exclusionary rule intended to protect
the parties from improper inferences which the jury might draw against
them is the character evidence rule under Fed. R. Evid. 404, which bans the
admission of character evidence to show action in conformity with that
character. This rule is clearly aimed at the jury, which would easily draw
the wrong inference from the offered evidence of past conduct. However,
there are exceptions to such prohibition."

Fed. R. Evid. 404(b) sets a critical exception to the general
prohibition under Fed. R. Evid. 404, providing that evidence of past specific
facts is admissible for purposes other than proving character. For example,
it is admissible to prove motive, identity, plan, lack of accident, or mistake,
etc. Under this rule, and under the modus operandi theory, evidence of past
specific acts could be admitted to prove identity as an essential element of a
criminal or civil case when identity is disputed. Specifically, if the past acts
share unique characteristics with the litigated event, the jury is allowed to

117. Like the Fed. R. Evid. concerning sex offenses or child molestation cases, see
generally FED. R. EviD. 412.

118. See FED. R. EvID. 404(a)(1)(2)(3).

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

consider it to prove identity, provided that the proponent of the evidence
will introduce evidence sufficient to support a finding that the party did
commit the act under the circumstances which make the past act relevant
for non-character use.

This rule, and especially this doctrine, seems to run contrary to the
general prohibition of character evidence under Fed. R. Evid. 404.
However, it is still consistent with the broad concept of relevancy under Fed
R. Evid. 401, which would allow circumstantial character evidence to be
admitted, provided that a judge determined under Fed. R. Evid. 403 that the
dangers of unfair prejudice do not substantially outweigh the evidence's
probative value. But this rule may lead to unfair situations. If evidence of a
parties' past bad acts are admitted to show the identity of the alleged
perpetrator in the current proceedings, the fact finder may improperly use
that evidence and decide against the party because of past actions, rather
than the actions that actually led to the litigation at hand.

Character evidence is excluded for three reasons. First, it often has
low probative value. Second, if it is disputed, there is a risk of digressing
into a mini-trial on character and diverting the fact finder's attention from
the main issue in the case. And third, it may be unfairly prejudicial,
particularly if it pertains to the character of a party to the lawsuit.

Other exclusionary rules apply the same rationale behind the
character evidence exclusionary rule, which is to avoid improperly
influencing the jury. External policies are those under Fed. R. Evid. 407,"9
408,120 409,121 and 411.122

3.6.1 Lay testimony and expert testimony

Parties to litigation may be witnesses in their own case, and experts
are considered witnesses. Therefore, any report or testimony rendered by
them is treated as evidence.

A witness must have first hand knowledge of the matter on which he
will testify, pursuant to Fed. R. Evid. 602. If there is doubt as to whether
the witness has first-hand knowledge, the proponent of the evidence must

119. FED. R. EvID. 407 states that evidence of subsequent remedial measures is not
admissible to prove negligence, fault and defect, but it is admissible for other purposes, such
as proving ownership, control, feasibility of precautionary measures and for impeachment.
See infra para. 3.6.1.1.

120. Evidence of compromise and offer to compromise is not admissible essentially to
prove liability; but it is admissible for other purposes such as proving a witness's prejudice
or bias. FED. R. EvID. 408.

121. Evidence of payment of medical and similar expenses is not admissible to prove
liability for the litigated injury. FED. R. EVID. 409.

122. Evidence that a person was or was not insured against liability is not admissible to
prove that the insured acted negligently or otherwise wrongfully, but it is admissible for
other purposes such as proving agency, ownership, control or bias or prejudice of a witness.
FED. R. EviD. 411.

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IND. INT'L & COMP. L. REv.

present "evidence sufficient to support a finding" that he does. This is a
relatively low standard of proof, requiring only evidence on the basis of
which a jury could reasonably find that it is more probable than not that the
witness had personal knowledge. If this modest level of proof is provided,
it falls to the jury to decide whether the witness has the knowledge he
claims to have and whether his testimony is credible.

The witnesses are interviewed directly by the counsel and the
judge.12 3 Similar to what happens under the Italian rules of evidence, a lay
witness, or non-expert witness, cannot render opinions during his testimony
unless his opinions are rationally based on his perception and they are
helpful to understanding his testimony or are helpful in the determination of
a fact in issue. They cannot based on scientific, technical, or other
specialized knowledge.124

On the contrary, experts testify in the form of an opinion if the
testimony is based upon sufficient facts or data, the testimony is the product
of reliable principles and methods, and the witness has applied the
principles and methods reliably to the facts of the case.125  By giving
opinions and drawing inferences, the witness would do the job of the jury.
The expert may not only testify in the form of opinion, but he may also give
a dissertation or exposition of scientific data or other principles relevant to
the case, leaving the trier of fact to draw the due inferences and apply them
to the facts.

Lay witnesses and experts offer different types of testimonies, and in
State v. Brown 26 the court held that the distinction between lay and expert
witnesses is that lay testimony "results from a process of reasoning familiar
in everyday life", while expert testimony "results from a process of
reasoning which can be mastered only by specialists in the field." The court
noted that a lay witness with experience could testify that a substance
appeared to be blood, but that a witness would have to qualify as an expert
before he could testify that bruising around the eyes is indicative of skull
trauma.127

An expert witness must qualify as such in order to give expert
testimony. Thus, the proponent of expert testimony should present evidence
of the expert's curriculum, publications, and experience in the specific field
of interest. In addition, the proponent must show that the expert's opinion
would be helpful to the jury under Fed. R. Evid. 702. Fed. R. Evid. 702
incorporates the principles of Daubert v. Merrell Dow Pharmaceuticals,

123. The judge can ask questions to witness, but this is rarely done. Juries cannot ask
questions, although there is a growing trend in some jurisdictions toward allowing jurors to
propose questions to the judge, who may in his discretion put them to the witness.

124. See FED. R. EvID. 701.
125. See FED. R. EvID. 702.
126. 836 S.W.2d 530, 549 (1992).
127. See also FED. R. EVID. 702 advisory committee's notes.

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

Incl2 8 and the many cases applying Daubert, including Kumho Tire Co. v.
Carmichael.12 9 In Daubert,13 0 the Court stated that trial judges are
"gatekeepers" in that they have to exclude unreliable expert testimony,131

and in Kumho, the Court stated that this gatekeeper function should apply to
all expert testimony, not just testimony based on science.13 2 Consistently
with Kumho, Fed. R. Evid. 702 provides that all types of expert testimony
present questions of admissibility for the trial court, which the court should
decide pursuant to Fed. R. Evid. 104(a). '3 Therefore, the proponent of the
expert testimony should meet the burden of establishing that the pertinent
admissibility requirements are met by the preponderance of the evidence. In
other words, he should demonstrate to the judge that it is more probable
than not that the assessments of his expert are reliable. 3 4 In Daubert, the
court set forth a non-exclusive checklist of facts to be applied by trial courts
in assessing the reliability of scientific expert testimony.i1s

Judges have the power under Fed. R. Evid. 706 to appoint their own

128. 509 U.S. 579 (1993).
129. 526 U.S. 138 (1999). See also FED. R. EVID. 703 advisory committee's note.
130. The Court held "We recognize that, in practice, a gatekeeping role for the judge, no

matter how flexible, inevitably on occasion will prevent the jury from learning of authentic
insights and innovations. That, nevertheless, is the balance that is struck by Rules of
Evidence designed not for the exhaustive search for cosmic understanding but for the
particularized resolution of legal disputes" Daubert, 509 U.S.. at 597.

131. The Surpreme Court held that "The Rules-especially Rule 702-place appropriate
limits on the admissibility of purportedly scientific evidence by assigning to the trial judge
the task of ensuring that an expert's testimony both rests on a reliable foundation and is
relevant to the task at hand." Id. at 580.

132. The Court held "The Daubert "gatekeeping" obligation applies not only to
"scientific" testimony, but to all expert testimony. Rule 702 does not distinguish between
"scientific" knowledge and "technical" or "other specialized" knowledge, but makes clear
that any such knowledge might become the subject of expert testimony." Kumho Tire, 526
U.S. at 138.

133. FED. R. EvID. 104(a) provides that "Preliminary questions concerning the
qualification of a person to be a witness, the existence of a privilege, or the admissibility of
evidence shall be determined by the court, subject to the provision of subdivision (b). In
making its determination, it is not bound by the rules of evidence except those with respect
to privileges".

134. But the proponent is not required to prove that the assessments of his expert are
correct. See In re Paoli R.R. Yard PCB, 35 F.3d 717, 744, (3d Cir. 1994).

135. These factors are: (i) whether the expert's technique or theory can be or has been
tested, that is, whether the expert's theory can be challenged in some objective sense, or
whether it is instead simply a subjective, conclusive approach that cannot reasonably be
assessed for reliability; (ii) whether the technique or theory has been subject to peer review
and publication; (iii) the known or potential rate of error of the technique or theory when
applied; (iv) the existence and maintenance of standards and controls; and (v) whether the
technique or theory has been generally accepted in the scientific community. These factors
are neither exclusive nor dispositive, and other cases have acknowledged that they cannot
apply to every type of expert testimony and that, sometime, other factors may apply. To the
contrary, they stand as a guide-reference to trial courts, to solve questions of admissibility of
the proffered expert-testimony and confirm that such admission is not an automatic process.
In re Paoli R.R. Yard Pcb Litig., 35 F.3d 717, 744 (3d Cir. 1994).

2010] 249



IND. INT'L & COMP. L. REV.

experts, but they rarely do so. They and the jury rely on the testimony of
the parties' experts and on their confrontation to decide which solution
offered is the best one. This seems to be more efficient than having an
expert appointed by the judge and is ultimately consistent with the
adversarial nature of the American proceeding. However, the parties'
experts have reasons to present the case in the way most favorable to their
client. Therefore, an expert appointed by the judge to check the analysis and
method used by the parties' expert would be advisable because it would
favor the adoption of a rational decision consistent with the facts and the
evidence offered by the parties. This would still be consistent with the
adversarial nature of the American civil proceeding but would avoid any
errors that could derive therefrom.

3.6.1.1 Impeachment

The strength and accuracy of any witness testimony depends on the
capacity to observe events, to remember them, and to relate them accurately
and honestly. This is particularly important especially if you consider that
the jury will especially rely on witnesses and their "story" to decide which
party should win. To make sure that the witness testifies accurately and
honestly, Fed. R. Evid. 602 requires that the witness has first-hand
knowledge of the matter on which he testifies. Fed. R. Evid. 603 requires
the witness to affirm that he will testify truthfully and to take the oath to
that purpose. However, the witness might lie or simply not remember
exactly the events on which he testifies. In this case, his testimony should
be shown to the jury as unreliable testimony that the jury could disregard. A
witness could be impeached through cross examination or through extrinsic
evidence, (evidence other than that developed through direct or cross-
examination).

Under Fed. R. Evid. 404(a)(3), evidence of a person's character or a
trait of character is admissible. A witness's character is significant for
truthfulness to infer action in conformity with that character on a particular
occasion and to infer whether the witness is lying or telling the truth on the
witness stand. To this purpose, Fed. R. Evid. 404(a)(3) refers to Fed. R.
Evid. 607, 608, and 609, allowing impeachment through character
testimony.

Even absent any specific evidence that the witness is actually lying on
the stand, evidence of the witness's character for untruthfulness, or
evidence that the witness lied in the past, could be used to discredit his
testimony under the "preponderance of the evidence" standard as well as
through inferences which could be inaccurate. Thus, there could be a risk of
inefficiency and unfairness.3

Fed. R. Evid. 609(2) provides that evidence of a prior conviction of a

136. See FED R. EvID. 609(2).

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

crimen falsi, (a crime of dishonesty) could be admitted to prove that the
witness who committed the crime in the past has a propensity to lie and
should not be believed. The judge would allow such extrinsic evidence if
the dangers of unfair prejudice under Fed. R. Evid. 403 do not substantially
outweigh the probative value of this evidence. Assuming the defendant was
sued for fraud in a civil case and that the plaintiff would like to prove that
the defendant was convicted of fraud nine years ago, he could very well do
that under Fed. R. Evid. 609 provided that the dangers of unfair prejudice
do not substantially outweigh the probative value of this evidence.137

Should evidence of a prior conviction be admitted, it would be highly
prejudicial to the defendant because it is very likely that the jury could
improperly use this evidence to draw improper inferences about the
propensities and identities of the adverse party. A limiting instruction
under Fed. R. Evid. 105, is possible to help remedy this problem, but it
might not adequately protect the defendant from this risk. If this occurred,
the solution would be inefficient and unfair.

The prior conviction impeachment device may have derived from
common law. As it was noted, "At common law a person's conviction of
treason, any felony, or misdemeanor involving dishonesty (crimen falsi), or
the obstruction of justice, rendered the convicted person altogether
incompetent as a witness." These sorts of crimes that would disqualify
someone as a witness at trial were labled "infamous" crimes. By statutes
and common law, the disqualification for conviction of infamous crimes has
been universally abrogated. Now, prior convictions for crime are merely
grounds for impeaching credibility."' 3 8

3.6.1.2 Hearsay

Under the U.S. law of evidence, hearsay is inadmissible under Fed. R.
Evid. 802. Hearsay is "a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted." The statement may be oral or written, and it may
also be non-verbal assertive conduct that the "declarant" intends to use as a
substitute for words. 39

There are at least two policies furthered by this rule. One is the desire
and ability for cross examination and the other is the ability of the fact
finder to observe the behavior of the witness while he is testifying. The U.S.
system prefers to have live testimony to cross examine under oath. The
absent "declarant" cannot be cross-examined, and the jury has little basis

137. It should be noted that the crime had to have been committed within ten years of the
testimony. Also, the probative value of such evidence depends on how probative the prior
conviction is of the truthfulness of the witness at the time of the witness's testimony.

138. JOHN W. STRONG ET. AL., MCCORMICK ON EVIDENCE, § 42 (5th ed. 1999).
139. Non-assertive conduct, that is, conduct held by the declarant without any intention

to assert a belief, or use it as a substitute for words, are non hearsay. See FED. R. EvID. 801.

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IND. INT'L & COMP. L. REV.

for assessing his credibility. Live testimony also gives the fact finder a
chance to judge the credibility of the witness by observing behavior and
conduct while testifying. Moreover, the rules also discourage second hand
testimony under the assumption that it is not as reliable.

The exceptions to the hearsay rule can be divided into two groups.
One set of exceptions applies if the declarant is not available to testify.14 0 If

the declarant is unavailable, previous statements under oath may be
admitted if the party against whom they are offered had an opportunity and
motive to develop the declarant's testimony by direct, cross-examination, or
redirect examination.141 The rules reflect a judgment that, while it would be
better to call the declarant to the witness stand when possible, the out-of-
court statement at issue has enough indication of reliability to justify
admitting it.

The second set of exceptions applies whether the declarant is
available or not. These include present sense impressions (i.e., statements
reflecting the sense impressions of the declarant while the defendant was
perceiving an event or condition),142 excited utterances (statements made
under stress, caused by a startling event),143 records of regularly conducted
activities like public records,'" statements in very old documents,145 and
many other things.146 In each case, there is some reason to believe in the
reliability of the relevant out-of-court assertion. There is no special reason
to put the declarant on the stand to testify. Finally, there exists a residual
category that allows courts to admit hearsay statements where there are
guarantees of trustworthiness comparable to those observed in the rules.147

The problem with the structure of the hearsay rule is that it contains
too many exemptions and exceptions. The intrinsic risk is that some out-of-
court statement, relevant for the purpose of the matter asserted, could not
come in under any exceptions to the hearsay rule simply because a specific
exception has not been exactly drafted for that purpose. Fed. R. Evid. 807
addresses this problem. It allows the trial judge to admit hearsay evidence,
provided that the proponent shows: (i) guarantees of trustworthiness
equivalent as those under Fed. R. Evid. 803 and 804 exist; (ii) the evidence
proves a material fact more than any other item of evidence which the
proponent could procure through reasonable efforts; and (iii) the interest of
the justice will be furthered by the admission of the evidence. The rule also
includes procedural safeguards to give the opposing party fair notice that a
party intends to invoke the rule, including the name and address of the

140. They are the exceptions. See FED. R. EVID. 804.
141. FED. R. EVID. 804.
142. See id. at 803(1).
143. See id. at 803(2).
144. See id. at 803(8).
145. See id, at 803(16).
146. See id. at 801(d), listing the "exemptions" to the hearsay rule; Id. at 803; Id. at 805.
147. FED. R. EviD. 807.

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

declarant. Although the exception is residual and is used rarely by courts
and litigants to admit evidence excluded under the hearsay exception, it
does avoid injustice in situations that fall outside any of the listed hearsay
exceptions.

In any event, not all the exceptions to the hearsay rule comply with
the rationale of the rule. The rationale is to make sure that out-of-court
statements relevant for the truth of the matter asserted are excluded because
of the dangers of unreliability. These dangers relate to all four testimonial
qualities: sincerity, narration, perception, and memory. A statement which
is not reliable for one of these qualities, and which was made out-of-court,
not under oath, and where the witness is not available and cannot be cross-
examined at trial, should not be admitted.

However, Fed. R. Evid. 803(2) presents some problems in this
respect. The rule provides that "a statement relating to a startling event or
condition made while the declarant was under the stress of excitement
caused by the event or condition" is admissible. The rationale is that the
stress steals the capacity to fabricate. Therefore, the statement is more
likely to be sincere. It is true that the statement was made under stress.
Thus, if not a sincerity danger, there could be a perception and accuracy
danger. The out-of-court statement could come in, and it would be treated
as if it was given under oath, at trial, even if there will be a high risk of
misperception due to the stress. 14 8

3.6.2 Exhibits

The other type of evidence most commonly used are exhibits, which
are real and demonstrative evidence like written documents, audio, video
and photographic recordings, and electronic and digital data compilations.
The requirement for exhibits is set forth by Fed. R. Evid. 901, which
provides:

(a) General provision. The requirement of authentication or
identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims. (b)
Illustrations. By way of illustration only, and not by way of
limitation, the following are examples of authentication or
identification conforming with the requirements of this
rule: (1) Testimony of witness with knowledge. Testimony
that the matter is what it is claimed to be. (2) Non-expert

148. In Italy, where there is no hearsay rule, such statement will not be admitted into
evidence because it would be not relevant (an Italian judge would think that it does not prove
any element of the claim or defense through a logical, reasonable and not speculative
reasoning). See GRossi & PAGNI, supra note 29.

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IND. INT'L & COMP. L. REv.

opinion on handwritings. Non-expert opinion as to
genuineness of handwriting, based upon familiarity not
acquired for purposes of litigation..." the non-exhaustive
list of examples of authentication or identification
continues.149

Fed. R. Evid. 901 contains under (a), the basic foundation and the
evidentiary standard that the proponent of an exhibit must satisfy to have it
admitted into evidence; and under (b), illustrations of the kinds of
foundations through which the proponent could meet the requirement under
Fed. R. Evid. 901 (a), by evidence sufficient to support a finding, which is
evidence upon which the judge thinks a jury could reasonably find a fact to
be more likely true than not.

The judge should make a rough estimate of underlying probabilities,
which is the same kind of estimation and thought process he makes when
estimating probative value under Fed. R. Evid. 403. The judge should not
decide whether the exhibit is authentic, which is the task of the jury, but
simply that the proponent of the exhibit has offered evidence sufficient to
support a finding that the exhibit is what the proponent claims it to be. The
judge should not submit to the jury an exhibit which the jury could not
reasonably believe to be authentic; but it will ultimately rest upon the jury
to decide whether the exhibit is authentic. However, once an item of
evidence has been authenticated, it could still be excluded pursuant to Fed.
R. Evid. 403.

By stating that "the requirement of authentication of identification [is]
a condition precedent to admissibility," Fed. R. Evid. 901 makes
authentication and identification an aspect of relevancy. As noted by the
Advisory Committee Note to Fed. R. Evid. 901, the requirement of showing
authenticity or identity falls into the category of relevancy dependent upon
fulfillment of a condition of fact and is governed by the procedure set forth
in Fed. R. Evid.104 (b).so The common law approach to authentication of
documents has been criticized as an "attitude of agnosticism, which departs
sharply from men's customs in ordinary affairs" and as presenting only a
slight obstacle to the introduction of forgeries in comparison to the time and
expense devoted to proving genuine writings which correctly show their
origin on their face."' 5' According to the Advisory Committee, today there
are means - such as requests to admit and pretrial conference - that
eliminate much of the need for authentication or identification. Therefore,

149. FED. R. EvID. 901.
150. "When the relevancy of evidence depends upon the fulfillment of a condition of

fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition. FED. R. EVID. 104(b).

151. See also Charles T. McCormick, CASES AND MATERIALS ON EVIDENCE 388 (West
Pub. Co. 3rd ed. 1956).

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

the rules for authentication and identification seem inefficient by requiring
long, complex, and expensive procedures that could be avoided. The
Advisory Committee Note to Fed. R. Evid. 901 says that "the need for
suitable methods of proof still remains, since criminal cases pose their own
obstacles to the use of preliminary procedures, unforeseen contingencies
may arise, and case of genuine controversy will still occur." However, Fed.
R. Evid. 901 does seem suited to addressing the "unforeseen
circumstances" to which the Advisory Committee refers because it spends a
lot of effort addressing the wrong problems.

3.6.2.1 The Best Evidence Rule

Additional foundation to prove content is required when a writing,
recording, or photograph is offered. The original will likely be more
trustworthy than a copy. Therefore, the best evidence rule under Fed. R.
Evid. 1002 requires that the original of the writing, recording, or
photograph be produced instead of a copy of the same, unless the absence
of the original is explained or justified or the exceptions set forth by the
Fed. R. Evid. or Act of Congress apply.

3.6.3 Burden of Proof

In the ordinary civil case, the plaintiffs burden is to prove its case by
a preponderance of the evidence.152  The Supreme Court held that the
preponderance of the evidence standard is satisfied when it is more likely
than not that the preliminary fact is true, and that "the preponderance
standard ensures that before admitting evidence, the court will have found it
more likely than not that the technical issues and policy concerns addressed
by the Federal Rules of Evidence have been afforded the consideration." 5 3

Therefore, if at the end of trial, the jury believes that the evidence
offered does not show that the plaintiffs position is not more likely correct
than not, the plaintiff loses. This probabilistic thinkingl 54 is at odds with the
way in which the Italian rules of evidence are framed and would be
regarded as giving rise to greater risk of error and, therefore, lack of
accuracy in the decision-making process. 55

152. The defendant must also prove each affirmative defense by the preponderance of the
evidence. Id.

153. See Bourjaily v. United States, 483 U.S. 171, 175 (1987).
154. "In the US [sic] view, it is candid, rational, and desirable to recognize that the truth

and hence fact-finding is a matter of probability, and that the system should seek to optimize
its probabilistic standards of proof." Kevin M. Clermont & Emily Sherwin, A Comparative
View of Standards of Proofs, 50 AM. J. CoMP. L. 252 (2002); see also Richard Friedman,
Anchor and Flotsam: Is Evidence Law 'Adrift'?, 107 YALE L. J. 1921, 1946 (1998)
(reviewing MIRUAN R. DAMASKA, EVIDENCE LAW ADRIFr (1997)).

155. See also infra para. 4.

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IND. INT'L & COMP. L. REV.

It is difficult to analyze, in a comparative perspective, the American
and the Italian standard of proof. This comparative analysis is made even
more complex by the cultural differences and different approach to the law
of evidence adopted by the two systems.16

3.7 Pretrial process

Pretrial process in the United States has several objectives. First,
discovery is intended to give each party equal and full access to relevant
evidence. While discovery often is easily manageable, in many large cases
it can be extraordinarily expensive and time-consuming. Second, efforts are
made throughout the pretrial process, especially as a trial date approaches,
to simplify the issues and "package" the case for a convenient trial. Third,
as shown infra in 3.8, the pre-trial process encourages settlement. Finally,
in order to govern all of these objectives, the federal courts use a series of
pretrial conferences under Fed. R. Civ. P. 16. After an initial "scheduling"
conference the judge will produce a pretrial order setting a schedule for
discovery, motions, and other matters. These orders may be modified for
cause at subsequent conferences. As trial approaches, the court is required
to hold a final pre-trial conference that will plan for the trial. The order
resulting from this conference will govern the progress of the trial and will
be modified only to prevent manifest injustice. Rule 16 thus provides the
framework for judges to manage the pretrial process and avoid unnecessary
expense or delay.

3.7.1 Discovery

Discovery has been defined as the constitutional foundation of
American civil litigation,s7 and it serves three main purposes. First, it
helps preserve relevant information that might not be available at trial.
Second, it helps identify the issues truly disputed between the parties.
Finally, it helps the parties to obtain information that will lead to admissible
evidence on disputed issues, thus limiting surprises at trial.

Within discovery, parties have the right to obtain information and
documents as long as they fall within the broad scope of discovery under
Fed. R. Civ. P. 26(b).' 8 There is some preliminary information the parties

156. See infra para.3.6.
157. Geoffrey C. Hazard, Jr., From whom no Secrets are kept, 76 TEx. L. REv. 1665,

1694 (1998).
158. FED. R. CIV. P. 26(b) provides that "Unless otherwise limited by court order, the

scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense - including the existence, description,
nature, custody, condition, and location of any documents or other tangible things and the
identity and location of persons who know of any discoverable matter. For good cause, the
court may order discovery of any matter relevant to the subject matter involved in the action.

[Vol. 20:2256



A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

have to provide to each other under the Federal Rules of Civil Procedure
without awaiting a discovery request from the opposing party. 59 Besides
this basic and mandatory information, Fed. R. Civ. P. 26(a)(2) requires
identification of any experts who will testify and provision of a written
report signed by each expert.160

In addition, other information and documents must be provided upon
request.' 6' The parties have broad access to each other's basic information,
claims, and defenses before appearing in front of the judge, so that they can
eventually settle a dispute before trial. The result of settlement is an
enormous saving of judicial resources and costs for the parties. The
settlement game is in the hands of the parties, but they must play within the
strict limits imposed by the rules and by the judge.

There is an invasion of the privacy of the individual litigants and their
litigation strategies which cannot be completely shielded by the work-
product rule.16 2 This could enhance fairness, especially in terms of "fair
play," intended as equal opportunity to file pleadings, respond to pleadings,
and offer evidence.

The provisions of detailed rules concerning discovery, as well as
sanctions for parties who fail to observe them, ensures effective and
efficient discovery, which eventually increases the possibilities that the
parties will settle the case rather than proceed to trial.

Except in a proceeding exempted from initial disclosure under Rule
26(a)(1)(B) or when the court orders otherwise, the parties must confer as
soon as practicable or at least twenty-one days before a scheduling
conference is to be held or a scheduling order is due under Rule 16(b).'6 3 In

Relevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence. All discovery is subject to the
limitations imposed by Rule 26(b)(2)(C)." Id.

159. See FED. R. Civ. P. 26(a)(1)(A). This information includes the contact details of
each individual likely to have discoverable information, a copy of all documents and tangible
things that the disclosing party possesses that may be used to support its claims or defenses
(except for impeachment), a computation of each category of damages claimed by the
disclosing party and a copy of documents on which such calculations are based, and any
insurance agreement under which an insurance business may be liable to satisfy all or part of
a possible judgment in the action or to indemnify or reimburse for payments made to satisfy
the judgment. Id.

160. See FED. R. Cv. P. 26(a)(2).
161. See FED. R. Civ. P. 26(d)(1), according to which a party may not seek discovery

from any source before parties have conferred, as required by FED. R. Civ. P. 26(f).
162. The work-product rule is governed by FED. R. Civ. P. 26(b)(3), according to which,

ordinarily, "a party may not discover documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its representative, (including
the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." Equal access to
the facts is assured by the discovery system. See FRIEDENTHAL, supra note 67, at 629.
However, discovery may lead to reveal strategy when evidence is necessary to show the
existence or inexistence of an element of a claim, which existence is disputed and might
eventually influence the bargaining powers of the parties, and such evidence should be
disclosed, upon request by a litigant. Id.

163. See FED. R. Civ. P. 26(f).

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IND. INT'L & COMP. L. REV.

addition to these conferences between the parties, the court may order the
attorneys and any unrepresented parties to appear before it for one or more
pretrial conferences pursuant to Fed. R. Civ. P. 16, in order to expedite the
disposition of the action, establish early and continuing control so that the
case will not be protracted because of lack of management, discourage
wasteful pretrial activities, improve the quality of the trial through more
thorough preparation, and facilitate settlement.M Various methods of
discovery devices are available to parties such as oral depositions,
interrogatories,166 the right to compel an opponent to produce documents
and other tangible things for inspection and copying under Fed. R. Civ. P.
34,167 the right to physical or mental examination under Fed. R. Civ. P.
35,6 and admissions under Fed. R. Civ. P. 36.169

164. See FED. R. Civ. P. 16(a).
165. Oral depositions allow a party to question any person (the deponent), whether a

party to the litigation or not, under oath. FED. R. Civ. P. 30(a)(1). The parties designate as
officer, the reporter, who records the questions, the answers, and any objections made by the
parties or by the witness. Id. at 30(b)(5). An attorney schedules a deposition by serving a
notice on the opposing attorney; under FED. R. Civ. P. 30(b)(6) an attorney may also notice
the deposition of a corporation or association, requiring the latter to produce the person or
persons having knowledge of the subject matter upon which the deposition should be taken.

166. See FED. R. CIV. P. 33. By interrogatory, one party sends to another a series of
questions to be answered under oath within a specific time; the exchange of questions and
answers is accomplished by mail; no court's order is required, and no officer needs to be
appointed. If a question is thought to be improper, the responding party may respond so, and
avoid answering. Then the proponent may seek a court's order compelling an answer. But,
before doing so, the proponent should try to confer with the opposing party and solve the
issue. The responding party has a duty to respond to interrogatories not only on the basis of
her own knowledge, but also by using the knowledge of other persons, including her
lawyers, employees, and other agents, that reasonably can be obtained through investigation.

167. FED. R. EVID. 34 also allows the party entry to land or property in the possession or
control of the opponent in order to inspect, measure, survey, photograph, test or sample the
property, or to observe an operation taking place on the property; it also allows access to
electronically stored information including data, photographs, and sound recordings. A party
that intends to inspect documents and things or to enter property must first confer with the
other party in accordance with FED. R. Civ. P. 26(d)(1) and (f). Following this conference, a
party simply serves a notice on the opponent stating what it wants to see, and when, where,
and how the party would like to see it. A request must describe the items to be discovered
with "reasonable particularity". The opposing party has at least 30 days to respond to the
request. Particularly, the party that receives a request serves a written response on the
requesting party, as well as any other parties to the lawsuit, within the time specified by the
FED. R. Civ. P. 34. The response states the responding party's objections, if any, but, absent
any objections, the responding party must produce the documents as requested or admit
counsel to its premises for the scheduled inspection. The procedure under FED. R. CIv. P. 34
is used also to obtain electronically stored information. Interestingly, although FED. R. Civ.
P. 34 is limited to parties, amendments to FED. R. Civ. P. 45 provides identical procedure to
obtain material from non-parties, by serving a subpoena on the non-party.

168. Physical or mental examination under FED. R. CIv. P. 35 is used only if the person's
physical or mental condition is in controversy, and the movant shows "good cause" to
compel the examination.

169. Admissions under FED. R. Civ. P. 36 are written requests served by a party upon
another, to admit the truth of certain matters of fact or of the application of law to fact, or the

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

There is a presumption that the responding party must bear the
expense of complying with discovery requests, but Fed. R. Civ. P. 26(c)
gives the district court discretion to grant orders protecting a party from
undue burden or expense in doing so, including orders conditioning
discovery on the requesting party's payment of the costs of discovery
(protective orders).170 The court has much discretion in granting protective
orders, which could be considered as a reasonable response of the system to
the relative broad scope of discovery. Specifically, in Seattle Times Co. v.
Rhinehart,171 the Supreme Court held that "liberal discovery is provided for
the sole purpose of assisting in the preparation and trial, or the settlement,
of litigated disputes."' 7 2  Because pretrial discovery permits liberal
discovery under Fed. R. Civ. P. 26(b)(1), it was necessary for the trial court
to have the authority to issue protective orders conferred by Fed. R. Civ. P.
26(c). Nevertheless, pretrial discovery has a significant potential for abuse
through depositions and protective orders, and therefore the decision to
grant protective orders because of this suspected abuse is be made by a
managerial judge. Managerial judges were created by through the evolution
of the system to better meet the needs of the parties.

The creation of managerial judges shows the system is flexible and
capable of meeting the needs of the parties, and demonstrates that
procedural devices themselves become adaptable to the changing needs of
the system - thus eventually reducing the costs (instead of creating a new
mechanism the system adapts to the available mechanisms). Flexibility
ultimately enhances efficiency.

3.7.2 Shaping cases for trial: dispositive motions andfinalpretrial
conference

The primary tools that judges have for shaping cases for trial (or
avoiding the necessity of trials) are rulings on dispositive motions. Motions
under Rule 12 are generally made early in an effort to forestall discovery
and obtain an early dismissal of some or all of the case. On the other hand,
motions for summary judgment under Fed. R. Civ. P. 56 typically are made
after discovery and are often designed to simplify the issues for trial as
much as possible in order to achieve a disposition of the case without a trial.

3.7.2.1 Motion to dismiss under Fed. R. Civ. P. 12(b)(6) or for
judgment on the pleadings under Fed. R. Civ. P. 12(c)

Fed. R. Civ. P. 12(b) provides:

genuineness of a document or other evidence that may be used at trial. Similarly to
admissions ("confessioni" in the Italian legal system), admissions under FED. R. CIv. P. 36
are conclusive evidence, unless withdrawn, and cannot be contradicted at trial.

170. See FED. R. Civ. P. 34.
171. 467 U.S. 20, (1984).
172. Id.

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IND. INT'L & COMP. L. REv.

Every defense to a claim for relief in any pleading must be
asserted in the responsive pleading if one is required. But a
party may assert the following defenses by motion: (1) lack
of subject-matter jurisdiction; (2) lack of personal
jurisdiction; (3) improper venue; (4) insufficient process;
(5) insufficient service of process; (6) failure to state a
claim upon which relief can be granted; and (7) failure to
join a party under Rule 19. A motion asserting any of these
defenses must be made before pleading if a responsive
pleading is allowed. If a pleading sets out a claim for relief
that does not require a responsive pleading, an opposing
party may assert at trial any defense to that claim. No
defense or objection is waived by joining it with one or
more other defenses or objections in a responsive pleading
or in a motion.17 3

In other words, a party may request the court to dismiss a complaint
for the grounds under Fed. R. Civ. P. 12(b) and, if granted, such motion
bars the action to move forward. Pursuant to Fed. R. Civ. P. 12(h)(2), the
motion under Fed. R. Civ. P. 12(b)(6), or the motion to dismiss for failure
to join a person required by Rule 19(b), or to state a legal defense to a
claim, may be raised in any pleading allowed or ordered under Rule 7(a) by
a motion under Rule 12(c) or (c) at trial. 7 4 While a motion to dismiss for
lack of subject-matter jurisdiction may be raised at any time during the
proceeding, the lack of personal jurisdiction, improper venue, insufficient
process, or insufficient service of process should be raised in a pre-answer
motion or else they will be considered as waived.

The different types of motions to dismiss a complaint found under
Fed. R. Civ. P. 12 (b) represents the various procedural tools available to
prevent a proceeding from moving forward where it should not due to
incurable irregularities in the complaint. A particularly interesting motion
is the motion to dismiss for failure to state a claim upon which relief can be
granted, under Fed. R. Civ. P. 12(b)(6).

By filing this motion, the movant requests the judge to dismiss the
case because either the plaintiff failed to adequately plead its claim, or
because no relief exists at law which could be granted. Therefore, no
evidence could be offered to support the complaint as it is framed and a trial
would be a "waste" of judicial resources that would inevitably lead to a
judgment denying the claim.

Once a motion under Fed. R. Civ. P. 12(b)(6) is filed, in consistency
with the idea to favor access to justice instead of formality, the court would
most likely allow the plaintiff the possibility to amend the complaint, unless

173. FED.R.Cv.P. 12(b).
174. FED. R. Civ. P. 12(h)(2).

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such possibility could not cure the defects in the complaint itself because no
remedy exists at law which the plaintiff could demand.

Another tool which expedites litigation and avoids waste of time and
judicial resources is judgment on the pleadings, pursuant to Fed. R. Civ. P.
12(c), which provides, "After the pleadings are closed - but early enough
not to delay trial - a party may move for judgment on the pleadings." 75

Under Fed. R. Civ. P. 12 (c), a moving party might request the court
to rule on the case based on the pleadings, without the need to commence a
discovery phase and to go to trial if no material facts remain at issue and the
parties' dispute can be solved on both the pleadings and those facts of
which the court can take judicial notice. This device under Fed. R. Civ. P.
12(c) has not been frequently used, and it has been frequently displaced by
the pre-answers Fed. R. Civ. P. 12(b) motions or by the post-answer
motions for summary judgment under Fed. R. Civ. P. 56. However, Fed. R.
Civ. P. 12(c) motion could be used to press Fed. R. Civ. P. 12(b) defenses
to the pleading's procedural defects or to seek a substantive disposition of
the case on the basis of its underlying merits.'76

The court accepts all well-pleaded material allegations of the
nonmoving party as true and views all facts and inferences in the light most
favorable to the pleader. The court will grant a Fed. R. Civ. P. 12(c) motion
on the pleading if the pleadings demonstrate that the moving party is
entitled to judgment as a matter of law.'77 On the contrary, if a disputed
material fact exists, the court must deny the Fed. R. Civ. P.12(c) motion,
and judgment on the pleadings will be granted only where it appears
beyond doubt that the plaintiff will be unable to prove any facts to support
the alleged claims for relief. To this respect, the pleader's choice of theory
will not be dispositive because the court would be free to inquire whether
relief for the pleader is possible under any set of facts that might be
established consistent with the allegation.7

The decision to grant a Fed. R. Civ. P. 12(c) motion is usually a "final
order" and may be immediately appealed, while a decision denying such a
motion is generally considered "interlocutory" and cannot be immediately
appealed before a final disposition on the merits.179

3.7.2.2 Summary judgment motion under Fed. R. Civ. P. 56

Another tool to reduce wasting judicial resources, costs, and time is
the motion for summary judgment, which the court can grant under Fed. R.
Civ. P. 56(c) "if the pleadings, the discovery and disclosure materials on

175. FED. R. CIv. P. 12(c).
176. Alexander v. City of Chicago, 994 F.2d 333, 336 (7th Cir. 1993).
177. Sikirica v. Nationwide Ins. Co., 416 F.3d 214 (3rd Cir. 2005).
178. Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).
179. Paskavan v. City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233 (6th Cir. 1991).

2010] 261



IND. INT'L & COMP. L. REv.

file, and any affidavits show that there is no genuine issue as to any material
fact, and that the movant is entitled to judgment as a matter of law." The
motion is different from a Fed. R. Civ. P. 12(c) motion because it allows a
party to pierce the allegations of the pleadings and requires the opposing
party to set forth specific facts showing that there is a genuine issue for
trial. Typically, the moving party will support its motion with materials
provided in discovery and affidavits, and the opposing party will file
counter-affidavits and refer to documents and other evidence from
discovery to show that there is a genuine issue of material fact.

A party is entitled to summary judgment if he shows that there is no
genuine issue of material fact on a specific, dispositive issue. Thus, for
example, if facts as to which there is no genuine dispute show that the
plaintiffs claim is barred by the statute of limitations and the defendant is
entitled to judgment as a matter of law, it does not matter that there may be
genuine dispute about many other facts in the case. Those disputes concern
facts that are not material to the dispositive issue.

Summary judgment does not have to dispose of the entire case, and
parties frequently move for partial summary judgment. Summary judgment
may, for example, resolve liability but not damages. It may also resolve
certain issues (such as fraud) without resolving others (such as breach of
contract).

Under Fed. R. Civ. P. 56(d), when summary judgment does not
dispose of the entire case, the court should, if practicable, ascertain what
facts exist without substantial controversy and what material facts are
actually and in good faith controverted. The court would then enter an
order specifying the facts as to which no real controversy exists, and those
facts would not need to be established at trial.

In ruling on a motion for summary judgment, the court will not weigh
the evidence or findings of fact, but it will merely assess whether a genuine
issue exists as to any material fact. If the court determines that a genuine
issue of material fact exists, the motion for summary judgment will be
denied. In performing that assessment, the judge will accept the evidence
of the nonmoving party as true and will resolve all doubts and draw all
reasonable inference in favor of the non-moving party.

The court cannot grant summary judgment motions when there is a
genuine issue of material fact which needs to be tried, or where the moving
party is not entitled to a judgment on an issue as a matter of law. The court
has more discretion in denying motions for summary judgment. It may
conclude that a fuller factual development is necessary or that some other
reason exists that makes it wiser to go to trial. Since denial of summary
judgment is not a final order, the district judge's discretion in denying a
motion for summary judgment is usually not subject to effective appellate
review.

Summary judgment represents one of the most important methods of
pretrial disposition in the U.S. federal courts, which, according to some, has

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

contributed to the decline of trials to a shift from trial-centered to motion-
centered adjudications and, eventually, to a decline in the Seventh
Amendment Right to trial by jury. 8 0 This argument should not be
supported, considering the true nature of the summary judgment motion,
which is that of requesting the judgment "as a matter of law" and, therefore,
not to judge evidence in place of the jury.

3.7.2.3 Case Management

Traditionally, judges played a relatively minor role in pretrial
proceedings. The process of discovery and motions would be under the
control of the parties, and a judge would merely resolve disputes that the
parties could not resolve for themselves. Fed. R. Civ. P. 16, however,
reflects a much more active philosophy of case management. It involves the
judge in scheduling practically at the outset of the case, provides a vehicle
for constant monitoring of the progress of the case, and allows for the
simplification of issues prior to trial. More generally, judicial involvement
allows for trial planning that makes the trial more efficient and more
understandable to the jury.

The increased managerial role of federal judges has engendered some
resistance. Professor Judith Resnik, for example, has viewed the growth of
managerial judges, prompted by "changed initiated by judges themselves in
response to work load pressures"'8 ' with some alarm. According to Prof.
Resnik, such changes and the increased managerial role of trial judges is
dangerous because these changes are made "privately, informally, off the
record, and beyond the reach of appellate review."1 82 Moreover, federal
rule-makers fail to articulate the rules by which judicial management should
work. 183

3.8 Settlement encouraged

Most cases are settled or dismissed soon after discovery, before trial.
This means that, during the pretrial phase and through the discovery
process, counsel manage to better understand their respective positions and
are ready to settle without going through a long and expensive judicial
process. The overall structure seems highly efficient in terms of savings of
public (judicial) and private (parties) resources.

This result is undoubtedly affected by the pre-trial devices conceived
by the Federal Rules of Civil Procedure and by the Federal Rules of

180. See, e.g., Suja A. Thomas, Why Summary Judgment is Unconstitutional, 93 VA. L.
REV. 139 (2007), available at http://papers.ssm.com/sol3/papers.cfin?abstractid=886363.

181. Judith Resnik, For Owen M Fiss: Some Reflections on the Triumph and the Death
ofAdjudication, 58 U. MIAMI L. REv. 391 (2003).

182. Id. at 426.
183. Id. at 439.

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IND. INT'L & COMP. L. REv.

Evidence. An essential purpose of party conferences under Fed. R. Civ. P.
16 is to encourage settlement. Thus, Fed. R. Civ. P. 16 specifically
authorizes the judge to address "settling the case and using special
procedures to assist in resolving the dispute when authorized by statute or
local rule." The rule also allows the judge to require that a party or its
representative be present or reasonably available by telephone in order to
consider possible settlement of the dispute. Finally, under certain
circumstances, a judge can require the parties to participate in good faith in
alternative dispute resolution procedures.

Generally, participants in the U.S. judicial system, especially judges
and lawyers, highly value settlement. The same is probably true of
sophisticated litigants, though it might not be true for individual litigants in
some situations. The large-scale use of settlement allows parties to manage
the risks of adverse outcomes and to avoid the cost of trials. It also saves
public resources that otherwise would be devoted to conducting a trial.

However, settlement is not universally admired. Professor Owen
Fiss, for instance, states:

I do not believe that settlement as a generic practice is
preferable to judgment or should be institutionalized on a
wholesale and indiscriminate basis. It should be treated
instead as a highly problematic technique for streamlining
dockets. Settlement is for me the civil analogue of plea
bargaining: Consent is often coerced; the bargain may be
struck by someone without authority; the absence of a trial
and judgment renders subsequent judicial involvement
troublesome; and although dockets are trimmed, justice
may not be done. Like plea bargaining, settlement is a
capitulation to the conditions of mass society and should be
neither encouraged nor praised.'

However, federal procedure in theory and operation strongly
promotes settlements. Some critics, while accepting the legitimacy of
settlement, believe that judges have too much power to force parties to
settle when the parties themselves would prefer to litigate. Professor Molot
warns that judicial "efforts to influence outcomes in settlement
conferences" can "represent a wild card beyond the control of the litigants
or the law."' 8 5 There is a danger that in the pursuit of efficiency judges may
effectively deprive the parties of their right to defense and improperly limit
their access to justice.

184. Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073,1075 (1984).
185. Molot, supra note 9, at 84.

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

3.9 Judgments

The court will normally issue a judgment on a verdict shortly after
trial pursuant to Fed. R. Civ. P. 58. In most cases, this may be done by the
clerk of the court without the intervention of the judge. The losing party
can challenge the verdict in two ways: by renewing a motion for judgment
as a matter of law under Fed. R. Civ. P. 50(b), or by filing a motion for a
new trial under Fed. R. Civ. P. 59. We will briefly analyze both of these
options before taking note of what, to Italian observers, is an oddity of U.S.
practice: the court's freedom to conform the judgment to the evidence under
Fed. R. Civ. P. 54.

3.9.1 Judgment as a matter of law under Fed. R. Civ. P. 50

A motion for judgment as a matter of law must be made after the jury
has heard the evidence on an issue, but before the case has been submitted
to the jury. A party that fails to make a motion for judgment as a matter of
law before the case goes to the jury waives the right to make the motion
after the verdict is rendered. Under Fed. R. Civ. P. 50(a), if the judge finds
that a reasonable jury would not have sufficient evidentiary basis to find for
the party opposing the motion on a fact, the judge may resolve the issue
against that party and then enter judgment on any claim or defense that
requires a favorable finding on that issue.'86 If the judge grants a Fed. R.
Civ. P. 50 motion, he effectively takes the case away from the jury,
potentially intruding into the jury's domain. Accordingly, such motions are
granted only cautiously. In this respect, courts have held that before ruling
on a motion for judgment as a matter of law the trial court must advise
opposing parties of the deficiencies in their proof and give them the
opportunity to present additional evidence on the dispositive facts. 87

There has been a tendency towards more judicial control and more
intrusion into the jury's domain, which is confirmed by the adoption of the
"substantial evidence" test by judges. Under this test, the court grants the
motion unless there is sufficient or substantial evidence suggesting that the
jury might decide for the non-movant.' 88  Here, the court exercises
discretion in deciding whether or not to take a case away from the jury.
However, the "substantial evidence" standard the movant should meet is
high, and the motion will likely be granted only in particular circumstances
where it is clear that the evidence in the record does not properly support a
particular verdict so that a judgment as a matter of law is more appropriate.

If the court does not grant the motion for judgment as a matter of law
during trial, the motion may be renewed under Fed. R. Civ. P. 50(b) after

186. See FED. R. Civ. P. 50(b).
187. See Waters v. Young, 100 F.3d 1437, 1441 (9th Cir. 1996).
188. See Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333 (1933).

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IND. INT'L & CoMP. L. REV.

judgment on the verdict is entered. If the court is convinced that the motion
has merit, it may either order judgment as a matter of law for the moving
party or order a new trial.

3.9.2 Motion for a new trial under Fed. R. Civ. P. 59

The court can grant a motion for new trial under Fed. R. Civ. P. 59
when the verdict is against the weight of the evidence or is either excessive
or inadequate, where probative evidence is newly discovered, or where
conduct by the court, counsel, or the jury improperly influenced the
deliberative process. 89

3.9.3 Judgment under Fed. R. Civ. P. 54(c)

As a separate issue for purposes of the present analysis, Fed. R. Civ.
P. 54(c) presents features which are worthy to analyze. Fed. R. Civ. P. 54
(c) provides, "A default judgment must not differ in kind from, or exceed in
amount, what is demanded in the pleadings. Every other final judgment
should grant the relief to which each party is entitled, even if the party has
not demanded that relief in its pleadings."

As a general rule, the district court generally grants the relief sought
to which the party is entitled, even if such relief was not requested in the
pleadings, which serve as mere "guides."

The lawsuit is, in fact, measured by what is pleaded and proven, not
merely by what is demanded.' 90 In other words, it is the court's duty to
grant all appropriate relief.191 However, in case of default judgments, where
the defendant fails to file its appearance, the court may not award relief
beyond that sought in the complaint because the non-appearing defendant
might be relying on the claims contained in the original complaint.
Therefore, Fed. R. Civ. P. 54(c) states that a default judgment must not
differ in kind from, or exceed in amount, what is demanded in the
pleadings.

This rule, therefore, gives some power to the court to shape and award
the relief sought by the parties. However, a party will not be able to recover
on issues not presented or litigated before the jury, nor may the party
recover relief that was lost due to failures in pleadings or in proof.19 2

189. See supra para. 3.5.
190. Minyard Enters. v. Southeastern Chem. & Solvent, 184 F.3d 373 (4th Cir. 1999);

Baker v. John Morrell, 266 F.Supp.2d 909, 929 (N.D. Iowa 2003).
191. See Felce v. Fiedler, 974 F.2d 1484, 1501 (7th Cir. 1992) (holding that the court

must grant whatever relief is appropriate, and the provision under FED. R. Civ. P. 54 (c) must
be construed liberally).

192. See Old Republic Ips. Co. v. Employers Reinsurance Corp., 144 F.3d 1077, 1080
(7th Cir. 1998) (finding that trial courts may not award relief upon theory which was not
properly raised at trial).

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Furthermore, the court will not force the parties to accept an award or a
remedy which none of them desires.

Fed. R. Civ. P. 54(c) allows some flexibility to courts in ruling upon
cases.9 3 This flexibility favors fairness instead of formality by providing
courts with power (and discretion) in the interpretation of claims, defenses,
and evidence. In fact, the formal repetition of claims in a specific format
will not be required if the pleadings and evidence offered by the parties
make the theory advanced by the parties and the relief sought by the parties
clear.

Therefore, where the parties were wrong as to the legal remedy
sought, the court could still award a different remedy as far as it deems it
appropriate. The prayer for the relief sought in the complaint, that is, the
demand for the relief to which the pleader believes to be entitled, is not
considered part of the substantive claim. Thus, the selection of an improper
form of relief will not subject the complaint to dismissal for failure to state
a claim or cause, provided that the substantive allegations show that some
other form of relief would be appropriate.' 94 This provision clearly favors
access to justice and flexibility instead of formality, thus ultimately
favoring efficiency.

3.10 Appeal

As a general rule, in order to appeal a judgment before a court of
appeals, the judgment must be final. That is, the judgment must end the
litigation on the merits and leaves nothing for the court to do but execute
the judgment.'95 The judge may issue an interlocutory order that finally
decides an issue before him or an order deciding the case on the merits. The
interlocutory order is not subject to immediate appeal, but it may be
reviewed only after the case is decided by a final decision on the merits.

There are several exceptions to the final judgment rule. First, the
collateral order doctrine, established by the Supreme Court in Cohen v.
Beneficial Industrial Loan Corporation,196 provides that if the object of the
order is collateral to the rights underlying the action and is too important to
be denied review, than the order is immediately appealable. The purpose of
the final-judgment rule will not be frustrated by allowing such an appeal.
For this rule to apply, the court should find that there could be no effective
review of the order after a final judgment is entered.

193. Consistent with the idea of "flexibility" and efficiency, is the mechanism of
amendment and that of the "relation back" theory under FED. R. Civ. P. 15, which allow
courts to grant leave to amend and relation back (an amendment to a pleading relates back to
the time of the original pleading). This is consistent with the idea of the American
proceeding as an on-going process, where substance often prevails over formality.

194. WRIGHT, MILLER & KANE, CIVIL PROCEDURE § 1255 (3rd edition).
195. Catlin v. United States, 324 U.S. 229, 233 (1945).
196. 337 U.S. 541 (1949).

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IND. INT'L & COMP. L. REV.

Second, an order should be immediately appealable where immediate
harm might occur to the appellant if review is postponed.'97

Third, various statutes provide for immediate appeals of non-final
orders. For example, orders granting, continuing, modifying, or dissolving
injunctions, or refusing to do so.'98 In addition to orders involving the
appointment or winding up of receiverships,' 99 and orders in admiralty
cases that determine the rights and liabilities of the parties,2 00 are all
immediately appealable.

Fourth, Section 1292(b) of Title 28 of the United States Code
provides for an appeal where the district judge certifies that its order
involves a controlling question of law on which there is substantial ground
for difference of opinion, and an immediate appeal from the order may
materially advance the ultimate termination of the litigation. The Court of
Appeals may exercise discretionary jurisdiction over such cases.

Fifth, sometimes an order will finally resolve the case against one
defendant without resolving the case against all defendants. Under Fed. R.
Civ. P. 54(b), the district court may enter a judgment on such a claim if it
"expressly determines that there is no just reason for delay." As is true of
appeals under section 1292(b), however, the Court of Appeals has
discretion over whether to accept the lower court's judgment in such
cases. 20 1

The last exception to the final judgment general rule involves
applications to the appellate court for writs of mandamus or prohibition to
reverse some intermediate trial-court rulings that exceed the discretion of
the district court. Courts are extremely reluctant to grant these
extraordinary writs, which are available only where the district court has
violated a non-discretionary duty. Moreover, the possibility that an appeal
might be sought under Section 1292(b) suggests that certification should be
sought under that statute before resorting to mandamus.202

The scope of the appellate review is limited to certain matters. Most
importantly, the courts of appeals cannot receive new evidence concerning
the facts. Instead, those courts can merely address legal arguments
regarding the law applicable to the facts. The Court of Appeals owes
different levels of deference to the district court, depending upon the
particular issue. The appellate court will review the trial court's rulings of
law de novo - that is, without any deference at all. Similarly, appellate
courts will review the district court's grant of summary judgment motions

197. FRIEDENTHAL, supra note 67, at 629.
198. 28 U.S.C.A. § 1292(a)(1) (2009).
199. Id. § 1292(a)(2).
200. Id. § 1292(a)(3).
201. FRIEDENTHAL, supra note 67, at 623. See also Schwartz v. Compagnie General

Transatlantique, 405 F.2d 270 (2d Cir. 1968).
202. FRIEDENTHAL, supra note 67, at 635. See In re El Paso Elec., 77 F.3d 793 (5th Cir.

1996).

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

de novo, since the appellate court is as well situated as the district court to
assess whether there are genuine issues of material fact for trial.

Courts of Appeals apply an abuse of discretion standard to the various
decisions a district court must make on a discretionary basis. This would
include, for example, decisions to include or exclude expert testimony
under Fed. R. Evid. 702. The Court of Appeals will give greater deference
to a district court's findings of fact where there is no jury trial below.
Those findings of fact will be upheld unless the court of appeals thinks they
are "clearly erroneous."

The maximum degree of deference is given to findings of fact by a
jury, which will not be disturbed unless the Court of Appeals concludes that
no rational jury could decide the case as that jury did. This standard is
stricter than the standard applied by district courts in ruling on motions for a
new trial.203

3.10.1 Appellate review of evidence

The appellate review of evidence is governed by Fed. R. Evid. 103, an
important instantiation of the adversary system of trial. Fed. R. Evid. 103
provides:

Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is
affected and (1) Objection. In case the ruling is one
admitting evidence, a timely objection or motion to strike
appears of record, stating the specific ground was not
apparent from the context; or (2) Offer of proof. In case the
ruling is one excluding evidence, the substance of the
evidence was made known to the court by offer or was
apparent from the context within which questions were
asked.204

This means, in order to be reviewable by the Court of Appeals, the
error must be harmful. For an error to be harmful it must affect the
substantial rights of the parties, and the nature of the error must have been
called to the attention of the judge so as to alert him to the proper course of
action and enable opposing counsel to take proper corrective measures.

Fed. R. Evid. 103 is perfectly consistent with the provisions under
Fed. R. Civ. P. 61:

Unless justice requires otherwise, no error in admitting or

203. For more details concerning the nature and scope of review, see FRIEDENTHAL,
supra note 67, at 636.

204. FED. R. EvID. 103.

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IND. INT'L & COMP. L. REV.

excluding evidence - or any other error by the court or a
party - is ground for granting a new trial, for setting aside a
verdict or for vacating, modifying, or otherwise disturbing
a judgment or order. At every stage of the proceeding, the
court must disregard all errors and defects that do not affect
any party's substantial right.205

A "harmless error" is one that does not affect the parties' substantial
rights or does not defeat justice. In construing this requirement, it has been
held that the harmless error inquiry examines whether the trial error
"affected the outcome of a case to the substantial disadvantage of the losing
party.206 The court will consider the centrality of the evidence and the
prejudicial effect of the inclusion or exclusion of the evidence. 2 0 7 The error
will be considered harmless only if the court states "with fair assurance"
that the judgment was not substantially affected by the wrongfully admitted
or excluded evidence. 2 08 Generally, a court will not consider an error
harmless when it is left with a grave doubt as to whether the error had a
substantial influence in the ultimate verdict.209 In making this evaluation,
the court considers the entire record and applies the harmlessness standard
on a case-by-case basis.210

This approach to review seems to be efficient because it avoids the
use of judicial resources where the error made in reaching the decision to
challenge was not a harmful one. However, the line between what is a
"substantial influence" and a mere influence, and a "substantial
disadvantage" to the losing party and a mere disadvantage to that party
might lead to results unfair to that party. The losing party could probably
be refused the right to appeal because it does not seem that the error he
would challenge substantially affected the trial court's decision.

IV. CONCLUSIONS: MAIN DIFFERENCES AND

SIMILARITIES, FURTHER ANALYSIS

Considering the foregoing and in addition to the points which have
already been raised and analyzed through this work and the separate brief
analysis of the Italian civil proceeding and the U.S. civil proceeding (before
federal courts), many efficiency and fairness issues come to consideration
for further in-depth analysis.

205. FED. R. Civ. P. 61.
206. United States v. 0' Keefe, 169 F.3d 281, 287 (5th Cir. 1999).
207. Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 102 (1st Cir. 1997).
208. Tesser v. Board of Educ., 370 F.3d 314, 319-20 (2d Cir. 2004).
209. General Motors v. New A.C. Chevrolet, 263 F.3d 296, 329 (3d Cir. 2001); Nieves-

Villanueva, 133 F.3d at 102; Krulewitch v. United States, 336 U.S. 440, 444-45(1949).
210. Nieves-Villanueva, 133 F.3d at 102.

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4.1 General considerations

When comparing the Italian civil proceeding versus American civil
proceeding, one notable difference is the duration of the two proceedings
and, specifically, the duration of the American "trial," as compared to the
duration of the Italian proceedings once the pleadings under Italian article
183 ICCP have been exchanged.

Italian civil proceedings can be inefficient in terms of the time it takes
to litigate each case. While even the most complex United States trials
could be resolved in terms of weeks or months, the Italian proceedings
before first instance courts can last up to three years because the hearings
required to resolve the lawsuit are scheduled so far apart. But inefficient
delays are not the only problems caused by trial proceedings spread out
over years.

The proceeding can also might be less fair to the parties because the
delays in the litigation will cause the judge to be less familiar with the case
than he otherwise would have been. In addition, extended time between
hearings and litigation dragged out over several years can create gaps in
evidence and explanations provided by counsel. And it is unlikely the
judge's notes will be sufficient to overcome these gaps because the minutes
of an Italian hearing are not transcribed verbatim, like they are in the United
States. Thus, it is highly possible that the notes taken by the judge are
incorrectly recorded and contain defects.2 1'

The Italian proceeding is also unfair in terms of predictability,
because the time-lags among hearings could increase uncertainty as to the
final outcome and will likely benefit one party to the damage of the other.

Some commentators might say that the delays in the proceeding are
due to the lack of judges and personnel, while others believe that by
increasing the number of judges and personnel to deal with cases, there
would simply be more cases filed and the delays in the proceedings would
be the same.212

The specialized nature of the Italian courts should favor efficiency
more than the United States federal courts do. Specialized judges handle

211. The minutes of the hearing in Italy are not a verbatim transcript (in contrast to U.S.
procedure). Thus, like all summaries, it could contain defects.

212. "[A]ny reduction in delay increases the incentive to litigate and reduces the
parties' incentives to settle, with the consequent increase in litigation offsetting the
reduction in delay. Therefore, most attempts at reform, such as adding judges, will
only increase the number of dispositions, rather than decreasing the time to
disposition. Adding judges to the system to reduce congestion is similar to
expanding the lanes of a freeway, an improvement that would draw traffic off the
side streets and from public transportation. More cases might flow into the system,
and the lesser burden of litigating might reduce the subsequent incentives to settle,
so the increased number of judges would be able to adjudicate basically the same
percentage of cases filed in the same time frame." Clermont, supra note 80, at 22.

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IND. INT'L & COMP. L. REv.

criminal or civil cases (as well as administrative cases) and among each
category (civil, criminal and administrative) there are further
specializationS213 as to the types of proceedings usually dealt with by each
department within each court. Therefore, the designated judge usually
possesses the expertise to handle the proceeding pending before him more
expeditiously and with less risk for an erroneous decision. However,
specialization by itself is not enough to cope with the inefficiency of the
Italian proceeding due to delays in the proceeding itself.

4.2 The pre-trial phase

To reduce delays and improve fairness and efficiency, the Italian
proceeding should be envisioned to start and finish in a short time frame.
This would be possible only if the parties would exchange pleadings and set
evidence requests before appearing before the judge. While the American
proceeding is divided into two phases - a pre-trial and a trial phase, with
only one phase fully developed before a judge and a jury -the Italian
proceeding starts and ends before a judge, without a jury.

The full involvement of the Italian judge from the beginning of the
proceeding may be inefficient because at this very preliminary stage, unless
there is some defect in the complaint or answer that needs to be cured, or a
particular procedural issue which calls for immediate attention and decision
by the judge, there is no need for a judge's involvement and supervision.

In this respect, the ICCP provisions dealing with a labor proceeding
can offer a model which should be considered for general application to an
ordinary proceeding. In the labor proceeding, governed by article 409,
there must be (i) a mandatory settlement attempt at the very beginning of
the proceeding; (ii) claims and defenses made in the first pleadings
(complaint and answer) which should indicate the evidence the parties
intends to admit; (iii) one or two hearings devoted to the admission of
evidence and to the discussion of the case; and (iv) a reading of the holding
judgment to the parties at the end of the proceeding soon after the end of the
discussion.214 This type of proceeding is much more efficient and fair than
an ordinary civil proceeding. Unfortunately, the legislator has not yet
managed to develop such a proposal for all proceedings.

In 2003, in an unsuccessful attempt to satisfy the need for a more

213. In addition to the main divisions between criminal and civil courts, there are
additional divisions of tasks and competences within the same courts. For instance, within
each Trib., there will be a judge dealing with company law proceedings, a judge dealing
with labor law proceedings, a judge dealing with family law issues, etc. See GROSSI &
PAGNI, supra note 29.

214. This is subject to the power of the judge to later file a full copy of the judgment,
including the grounds supporting the holding. A "holding" judgment is just the decision of
the case, basically, who wins and who loses, without any explanation for that. The grounds
of the decision will be published later, together with the full text of the decision. Id.

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efficient, and especially faster, proceeding, Legislative Decree no. 5/2003
("D.Lgs. 5/2003") dealing with company law proceedings was passed.2 15

Pursuant to D.Lgs. 5/2003, a proceeding is divided into two parts: one
without the presence of the judge and the other before the judge. In the first
part, the parties exchange pleadings (without involving the judge), and only
when the claims, defenses, and evidence are finally set do the parties
schedule a hearing before the judge. The judge will then admit evidence
and decide the case after a hearing or two unless there is a substantial
amount of evidence that would require more evidentiary hearings to
consider.216 But a proceeding that would start without a judge may not be
feasible. And this is one of the reasons why D. Lgs. 5/2003 has not been
successful and was repealed by a recent reform of the ICCP. 217

On the other hand, the American model, with its pre-trial discovery
and pre-trial conferences before the judge, could not be used in Italy either
because there is no discovery or managerial conferences before a judge
prior to the start of the proceeding. And where the United States' model
won't work either, perhaps the best model for Italy to consider is the above-
mentioned labor proceeding model. The labor proceeding procedure under
article 185 ICCP could be amended to provide that the judge, after the
pleadings have been exchanged, should try to settle the dispute if on the
face of the dispute it appears it is a case that can be settled.

Forcing early settlement negotiations is advantageous for parties
because at the very least, it forces them to acknowledge the strengths of the
parties relative positions. This realization alone is often enough to incite
settlements that save time and costs. These settlement agreements could
then be treated as a real judgment for enforcement purposes.

Even if the American and Italian proceedings seem very different on
their face, at least as far as the structure is concerned (setting aside the
problem of time) they function more or less in the same way. For example,
(i) there is a phase devoted to defining the issues of law and of fact (which
could be discovery and pre-trial conferences, for the American proceedings,
and exchange of pleadings under article 183 ICCP for the Italian
proceedings); (ii) a phase devoted to the admission of evidence; (iii) a phase
devoted to final arguments; and (iv) the rendering of the judgment. The
major difference, however, seems to be rooted in the law of evidence, and
more specifically, the rule of relevance through which decisions about
whether to admit evidence are made by inferential reasoning.

The mechanism of introducing evidence in the two proceedings is
sometimes different because of the presence or absence of a jury. The
introduction of evidence in United States' trials follows the story telling
method. Counsel presents to the jury a reliable story and provides them with

215. See GROSSI & PAGNI, supra note 29.
216. Id.
217. Id.

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IND. INT'L & COMP. L. REv.

as much information as possible to put them in a position to make the right
decision. The story telling model requires a lot of circumstantial evidence to
tell a complete story to the jury. And in order to provide that story to the
jury, Unites States allows any evidence into the proceedings that is
conceivably relevant.

This practice of admitting any relevant evidence into trial has brought
the United States close to adopting "probability" as a standard for admitting
evidence instead of "certainty." And "probability" as a standard creates an
inferential chain of reasoning approach which might lead to incorrect
results.218 Furthermore, such a broad concept of admitting evidence means
that additional ruleS21 9 describing what evidence might be relevant, but
cannot be admitted into evidence for fear of prejudicing one of the parties
220 or public policy, must also be added.22' And it has also been argued that
limiting instructions do not always help in making the jury properly
consider the evidence offered.222

As an example of how inferential evidence can lead to incorrect
results, one could consider the hearsay rule and the exception of non-
assertive conduct, which does not constitute inadmissible hearsay. Non-
assertive conduct is conduct that the actor held without the intention to
communicate his belief by that conduct. Therefore, it is more likely that, by
not intending to communicate his belief, the declarant was sincere in his
statement. However, it is also likely that the non-assertive conduct had a
meaning different from that inferred by the jury. One might then wonder
whether the probable absence of just the hearsay danger of sincerity is
sufficient justification for removing nonassertive conduct from the
definition of hearsay altogether and admit it at trial as admissible and
relevant evidence.

Usually, when evidence is admitted that would normally be excluded
under the rule of hearsay, it is because of the need to tell a complete story to
the jury or because the evidence could not be obtained otherwise without a
hefty burden. However, the "necessity to tell a story" cannot always justify
exceptions. Sometimes the exceptions contradict the rationale behind the
general rule, as in the case of the assertive conduct exception to the hearsay

218. See supra para. 3.6 for a discussion on character evidence, impeachment evidence
and hearsay.

219. The existence of such a broad provision on relevance makes provisions like Fed. R.
Evid. 404, 407, 408,409, 411 and 807 necessary. The procedures under Fed. R. Evid. 404,
407, 408, 409, 411 and 803, providing for the exclusion of evidence, which may be
prejudicial to the defendant or contrary to public policy furthered by the same rules, may
take substantial time for completion because they make the use of inferential procedures.
Such procedures, besides being time consuming, bring the risk of making incorrect
inferences, thus eventually reaching incorrect results.

220. See supra para. 3.6.1.2 for a discussion on FED. R. EVID. 807.
221. See supra paragraph 3.6.
222. See also Kerri L. Pickel, Inducing Jurors to Disregard Inadmissible Evidence: A

Legal Explanation does not help, 19 L. & BEHAV. 407 (1995).

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

rule. It is not easy to distinguish assertive conduct from nonassertive
conduct. There is no scientific test to identify it, and therefore, there is
room for error. It is the judge who must make this decision under Fed. R.
Evid. 104(a) and he might be wrong. And, even if judges were to be right
most of the time, considerable time and effort is still spent arguing and
deciding preliminary questions of facts and foundational requirements
under the Federal Rules of Evidence. But wasted time and effort arguing
preliminary questions of fact is not the only inefficient result of admitting
all relevant evidence.

Discovery, as a specific device of the American proceeding, can be a
tool to achieve "fairness", but it can be sometime very expensive and time-
consuming, considering the broad scope of discovery under Fed. R. Civ. P.
26(b)(1). The category "any non-privileged matter that is relevant to any
party's claim or defense" may include evidence which, in the end, is not
really relevant to the requesting party's claims or defenses. 223 This is
because the party requesting the information may not know exactly what it
is seeking. It may take time to analyze all the available evidence and find
the evidence supporting the party's claims or defense. Once requested, the
party obtaining the information will have to review it to eventually decide
whether or not the evidence supports its case, and this demand and review
process might be very expensive and time-consuming. Though this process
can certainly time-consuming, it is fair because its intent is to further fair
play and rationality in the decision-making process.

Discovery might be the only device in the hands of the parties to
collect all the evidence they need in order to support their position at trial;
however, it may be an expensive and time-consuming process. Further,
because of discovery, the trial may be decided by how much the party is
willing to spend. A party might be willing to spend more money to obtain
the information which he needs to support his position at trial and, therefore
increase his chances to win a case, but the party also runs the risk of losing
at trial because his position is not sufficiently substantiated. The result is
different in an Italian proceeding.

In the Italian proceeding, where there is no discovery period, no such
possibility exists and, therefore, the party has no choice but to accept the
risk of commencing a suit and eventually losing it because he was not able
to offer sufficient evidence showing that his claim was well grounded.
Winning or losing a case is always a matter of evidence. The perfect legal
theory about the existence of a right is useless if the claim is not supported
by sufficient evidence showing the existence of the plaintiffs right.

By providing discovery, the American system appears to be more
"fair" than the Italian system because it eventually leaves to the party the
decision as to whether the party should bear the costs of the discovery and

223. See FED. R. Civ. P. 26(b)(1).

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IND. INT'L & COMP. L. REv.

go to trial, or whether to settle the case before instead.
Parties to a litigation should be able to decide whether or not to go

through a discovery process and to bear the costs of having access to the
information which they need to eventually win the case. If such possibility
does not exist, then the parties have fewer chances to adequately present
their case, which is unfair.

A right to discovery increases the fairness of the proceeding and,
eventually, its efficiency because there are more chances that, throughout
the suit, the plaintiff will get what he wants. Dispositive motions, such as
motion to dismiss under Fed. R. Civ. P. 12(b)(6), motions for judgment on
the pleadings under Fed. R. Civ. P. 12(c), and motions for summary
judgment under Fed. R. Civ. P. 56, highly increase the efficiency of
proceedings and favor the saving of judicial resources.

Similarly in the Italian proceeding, the parties have the option to
request the judge to immediately decide the case without starting the
evidentiary phase, where the pleadings, on their face, show that there is no
"triable issue," that is, either no relief at law exists that the plaintiff could
claim or whether no evidence has been offered by the parties to support
their claims or defense. Article 187 ICCP provides, "When the investigating
judge considers the case ready to be decided on the merits without the need
to acquire further evidence, the judge refers the parties to the panel of
judges." And the judge could decide that the case is ready to be decided at
the first hearing, once the complaint and the answer only would have been
exchanged.224 However, Italian judges are usually reluctant to grant such a
request and prefer to go through the whole proceeding before making any
decision as to whether the case should be dismissed for reasons analogous
to the one supporting a motion under Fed. R. Civ. P. 12(b)(6) or under Fed.
R. Civ. P. 56. Perhaps, by providing a specific motion like Fed. R. Civ. P.
12(b)(6) and Fed. R. Civ. P. 56, the instrument under article 187 ICCP
would be more effective. In other words, article 187 of the ICCP could be
framed as a motion under Fed. R. Civ. P. 12(b)(6), or even as a motion
under Fed. R. Civ. P. 56, the filing of which compels the judge to decide on
the immediate dismissal of the case, and the judge's decision could be
subject to review on appeal. Article 186 quinquies could be added to the
previous provisions to expressly provide for a motion for immediate
decision of the case because the pleadings and the evidence offered show
that there is "no genuine issue as to any material fact" which deserves
further consideration and, therefore, the claim should be dismissed.

4.3 Trial

One of the most efficient features of the United States jury trial is that
the hearings are scheduled close in time to each other and a final decision is

224. See Corte app, sez. 25.Oct. 20.05, n. 1004, Guir. It. 2005, II, 2.

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A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

reached as soon as possible. This is certainly attributable to the presence of
the jury.225 When a jury is convened to decide a case, these steps are
necessary in order to save the jury's time and allow them to make a
decision immediately after the evidence has been offered to them at trial.226

At trial, after the judge has deemed the evidence admissible, the
parties offer the evidence to the jury. The main evidence is witness
statements or exhibits that, absent any stipulations by the parties, are
offered into evidence through witness testimony who will have to lay the
foundation for their admission. The story telling approach adhered to by
United States courts again provides the rationale behind this. Telling a jury
a story through the help of witnesses helps them better understand the story
itself and remember the documents which were offered to them as part of
that story. The story is made by many circumstantial elements and
inferences, so "a story" is needed to link, through inferential reasoning, the
available evidence to the facts of consequence in the case.

Anyone can be a witness in a case as long as he has first-hand
knowledge of the matter he testifies about, pursuant to Fed. R. Evid. 602.
The plaintiff or the defendant may be witnesses in their own case and it is
left to the jury to decide whether or not their testimony is reliable. This is
different from the way testimony is treated in the Italian legal system, in
which a party to an action cannot be witness in his own case. However,
Italian judges can examine the parties to get information about the case
(interrogatorio libero) and the parties' statements will be considered as
circumstantial evidence, but they are not "technically" evidence.22 7

Therefore, there is no actual difference between the two systems as to
the testimony provided by the parties to the litigation, except for the
procedure to admit such evidence. Once the party answers the formal
interrogatory, his answers will be treated as admissions and it will be
eventually up to the opposing party to decide whether to claim that those
answers are false so that the party should be charged with the crime of
perjury. However, there might be differences in terms of fairness.

In the Italian civil proceeding, the party cannot spontaneously render
any testimony. The only possible way to render testimony is to answer to
the requests for clarifications made by the judge (interrogatorio libero) at
the beginning of the proceeding. It is then left to the opposing party to
decide whether or not to request an interrogatorio formale, provided that
the necessary requirements are satisfied. However, interrogatorio formale
is not similar to the spontaneous testimony rendered by the parties in the

225. Judges do care about the jury's time, and about the risk that, by "dissolving" it
through time, as in the Italian proceeding, the jury might get confused, both dangers which
are considered under FED. R. Evio. 403 balancing test. See GROSSI & PAGNI, supra note 29.

226. Hearings in bench trials can be scheduled with long intervals in between.
227. This situation is different from the situation where the witness is subject to formal

interview ("interrogatorio formale"), because in this case, the party's answers to questions
will be treated as "admission" ("confessione").

2010] 277



IND. INT'L & COMP. L. REV.

American proceeding.228

There is a presumption for bias in the Italian legal proceeding that
prevents the admission of the parties' testimony. This may seem unfair
because the party might want to offer his testimony, and it is also inefficient
because by excluding the possibility to consider the party's own testimony
as evidence, fundamental information and evidence will probably be left out
of the proceeding. This would offer fewer chances to correctly decide the
case and more chances to get at an unreasonable and unfair decision.

4.4 Courts and decisions

In the United States there are two basic levels of proceedings, and the
229

United States Supreme Court may grant Certiorari by its own discretion.
In Italy, Corte di Cassazione does not have similar discretion, and once the
procedural requirements to bring a case before it are met, Corte di
Cassazione hears the case and decides whether or not to grant review and
later remand a case to the lower court. This may be a more fair model than
the United States legal proceeding, but in terms of efficiency, a second
review might not always be necessary.

Considering that Corte d'Appello has the power to do a review de
novo of the entire case, as to both the facts and the law of the case as if it
was brought to the first instance court, there should be no need to challenge
the judgment of Corte d'Appello before a superior court, unless there is
truly a complex legal issue which may need further review. Not all cases,
though, present extremely complex legal issues and many cases go to Corte
di Cassazione for review without any serious need for a further review from
the "judge of the laws."

As is the case with the U.S. Supreme Court, it should be left to the
discretion of Corte di Cassazione to decide whether or not to review
judgments issued by Corte d'Appello. This would preserve extraordinary
resources. Finally, counsel would be encouraged to do a better job on the
appellate phase, knowing that there could be no further possibility of
appeal. Also, non-meritorious claims and defense would be reduced.

It would also be fairer to include the dissenting opinion in the Italian
judgments issued by the panel of judges. This, in fact, would render each
judge accountable for their decisions and push them to pay more attention.
Furthermore, it would help the losing party to identify the reasons which
would further an appeal and to see whether its defense in the prior
proceeding matched the theory advanced by the dissenting judge to

228. As already said, the party's answers to "interrogatorio formale" will be treated as
admissions.

229. There are not really three levels of proceedings in the American federal system
because the U.S. Supreme Court has discretion as to whether it would grant certiorari and
review the judgment issued by an appellate court. See GRossi & PAGNI, supra note 29.

278 [Vol. 20:2



A COMPARATIVE ANALYSIS OF CIVIL PROCEEDINGS

eventually consider the chances of a successful appeal.
It is true that more judicial resources would be used in writing a

single judgment, but perhaps better judgments would be written and would
thus discourage the losing party from appealing the judgment. Furthermore,
the parties might eventually settle the controversy if they knew that the
position taken by the majority might eventually be reviewed by the
appellate court, if the minority's position would be followed at that stage.

Pursuant to article 112 of the ICCP, the Italian judge may not grant to
the parties a relief different from the one sought since there has to be a strict
correspondence between what has been demanded by the parties and what
is finally granted by the judge. Therefore, an Italian judge could not grant a
remedy different from the one which the parties expressly requested in their
pleadings and confirmed in their conclusions and final pleadings.2 30 The
provision of article 112 of the ICCP seems to be more predictable than the
one under Fed. R. Civ. P. 54(c) in that it puts the parties on "notice" of what
to expect, thus allowing them to properly defend against the possibility of
the court granting the specific remedy sought.

Moreover, the mechanism under article 112 of the ICCP seems to be
more efficient, because it tends to define more precisely the scope of the
litigation, to the final benefit of the parties who will focus their efforts on
specific facts, evidence, and legal theories. And the courts will be not
required to put any effort in identifying the remedy sought.

In American law, remedy is not considered a substantive part of the
claim. Therefore, Fed. R. Civ. P. 54 (c) gives too much power to the
judges, and reduces the fairness of the proceeding because the opposing
party is not on notice of what to expect. On the other hand, by being so
flexible, Fed. R. Civ. P. 56 is efficient and fair to the party who could suffer
damages if it had no right to get a relief somehow different from the one
which was expressly claimed.

230. Claims and objections which were not repeated in the conclusions would be
considered as waived, unless the judge believes that the party's conduct strongly indicates its
intention to keep those claims or objections. Id.

2010]1 279