Before we discuss our lawsuit in three systems, we address basic legal methods. What we say may seem obvious, but our experience suggests that that which is obvious in one legal system may not be in another. We consider what it means to “think like a lawyer” and we look at “sources of law,” that is, principally statutes and court decisions.

Deciding according to law requires determining applicable rules, finding facts, and applying rules to facts. This is considerably more difficult than is generally supposed. The legal rule cannot always be read from a single statute or precedent. It often is necessary to search statutes and precedents, analyze them, compare them to facts, revisit statutes and precedents in light of the facts, and again examine facts in light of the law. The end result is to bring facts and law together.

Mary Roh now has a lawyer. She still has no lawsuit. What does Roh want from a lawsuit? She, like most litigants not bearing grudges, wants her money back. She cares all about result and not at all about process. The faster and cheaper she gets the result she wants, the happier she will be.

At her first meeting with her lawyer, Harry Hahn, Roh asks: “When do we go to court?” Hahn answers: “Not so fast. The first thing that we have to consider is in which court we can bring a lawsuit. We need a court that has what lawyers call ‘jurisdiction.’ The court must have jurisdiction both over the subject matter of the lawsuit and over the parties. Lawyers call the first type ‘subject matter jurisdiction’ and the second type ‘personal jurisdiction.’ If more than one court has both subject matter and personal jurisdiction, we will have to choose among them.” In the United States, the American Hahn is likely to add, “I will look for the court that I think will get you the best result based on the law of the court and its personnel.” American lawyers call the practice of looking for the most favorable court “forum shopping.”

Mary Roh has reached the end of the process. She and John Doh Jr. are in the courtroom for the last session. They hope that this will be their last day in court together. They can and should expect a decision that day. The case was not difficult. The judge has no special ground to delay decision; a jury, if there is one, should not take much time to decide their case.

If it is in the United States and if there is a jury, Roh and Doh will fidget as the judge instructs jurors in their duties. The jurors will retire; Roh and Doh will perspire. They will pace about the courthouse until the jurors return. That is not likely to be in much less than an hour. Even jurors who have made up their minds before leaving the courtroom do not want to return too soon. They want to show that they have deliberated carefully. Because there is no way to demonstrate that in writing, they allow time for deliberation to suggest it.

If it is in Germany or Korea, the judge should announce the decision from the bench that day. German and Korean judges may have ready a draft of the reasons that they will give; if they do, they may read from it. If they are not ready with written reasons, they are required to summarize the basis for their decisions orally and provide written reasons later.

Preface

It may be the oldest use of comparative law: You want to fix something at home that does not work well. You look next door to see how your neighbor does it.

In our book the subject of neighborly inquiry is civil justice. That American civil justice does not work well is recognized worldwide. Those subject to it were among the first to complain, but today many American lawyers, law professors, and judges will tell you the same thing.

Civil justice describes the system of the administration of justice in civil matters. The law of civil procedure is the law that governs lawsuits, that is, civil actions, among private parties.

Whether in the United States, Germany, or Korea, the course of a civil action is simply stated and similar in outline. One person feels aggrieved by another person. Usually before bringing a lawsuit, the aggrieved person asks the other to make the matter right. Only if the latter fails to make the matter right does the aggrieved person take the matter to court.

The aggrieved person, that is, the plaintiff, commences a civil action with a formal complaint. The complaint declares a claim against one or more defendants. It asserts the plaintiff’s right, defendant’s duty, or both, and asks the court to recognize and enforce the rights or duties claimed. Upon officially receiving the complaint, the defendant has three principal alternatives: comply with the claim, ignore the claim and accept a judgment by default, or contest the claim.

Mary Roh has decided to sue. She has a lawyer; she has a court. Now she is ready to bring her case to court. Starting a lawsuit requires that she tell the court what it is that she wants. Otherwise, the court will not know which matters it is to decide and which remedies, if any, it is to order. What the court is to decide – the matter in controversy – is fundamental to all three of our systems of civil procedure.

In all three of our systems, plaintiffs begin lawsuits by telling courts what they want from whom. They answer the classic question that American law professors pose to their first-year students: Who is suing whom for what? Plaintiffs do this in documents called complaints. Defendants are formally “served with process,” that is, they are informed of the lawsuit and are formally given the complaint. Defendants are “summoned” to appear within a certain period of time (usually, less than a month) and, if they do not, they are deemed in default. They respond either in documents called “answers” or in motions to the court. Plaintiffs may reply to these answers and motions. Collectively, this written give and take between the parties at the beginning of the lawsuit constitutes the pleadings.

The civil action has commenced. Mary Roh has filed a complaint; John Doh Jr. has interposed a defense. They have reached the critical point in their lawsuit when by “the course of the law of the land,” they are to be heard in the cause before the court.

In this chapter we examine “process.” Process occurs in the period after a lawsuit is commenced by party pleading, and before it is concluded in judicial judgment. Process is the legal consideration of material facts and applicable law. If parties dispute which facts are true or material, process provides them the opportunity to persuade the court which are material and to present proof to the court of which are true. If parties disagree with which law governs their dispute or interpret law differently, process provides them opportunity to express their views on governing law. At the conclusion of process, the court applies the determined law to the facts found to produce the characteristic product of civil litigation: a decision according to law of the parties’ rights and duties. That decision is known as a judgment and is the subject of Chapter 7. In this chapter, after a general introduction of process and the centrality to process of the right to be heard, we discuss process in each of our countries specifically, and how process might unfold in the case of Roh v. Doh.

Civil justice comes from the heart of mankind. It can fulfill expectations and it can disappoint them. It can justify hopes and – in the best of cases – it can resolve disputes for once and for all. Often it is the last place to which people can turn for clarity about what is right.

American judges live in interesting times. A confluence of events, some centuries in the making, others more recent, has put judges at the center of many of the most politically charged disputes in the United States, which has exposed them to withering criticism and proposals to curb their discretion from the political right, to a lesser extent from the political left, and from fringe groups that defy classification. American judges have bemoaned their plight, and with their implicit and sometimes explicit support, state and national bar organizations have created commissions, issued reports, and developed programs aimed at defending judges from attack. Private organizations have emerged to criticize court critics and align themselves with state and federal judiciaries to the end of promoting fair and impartial courts. Faced with opposition from court defenders who decry what they regard as unwarranted threats to the judiciary’s independence, court critics have rejoined that they are merely seeking to promote meaningful judicial accountability to the public that judges serve.

For their part, judges themselves have acquired new, ill-defined rights to speak out on issues of the day, which has liberated them to an as yet uncertain extent from ethics restrictions on their speech and enabled them to respond more effectively to their critics. At the same time, it portends to thrust them further into the political limelight, thereby diminishing the differences that separate judges from public officials in the so-called “political branches” of government, and arguably making them even more inviting targets for their detractors.

At the end of the nineteenth century the New Zealand Court of Appeal was bristling with righteous indignation at the mere conception that a superior court judge could be disqualified for bias; for by the very fact of sitting the judge had already honourably concluded (from a Panglossian perspective) that no impediment of bias existed. The early cases looked single-mindedly towards a current and direct financial interest as being the exclusive basis for judicial disqualification. Only that narrowly drawn category of bias could interfere with the sworn duty of a judge: ‘nothing short of direct pecuniary interest will so disqualify a judge of a court of record of superior or general jurisdiction such as is this Court’. Over time the austerity of the original test was relaxed so that a direct pecuniary interest did not exist where it was ‘so remote as to be fanciful’, or where the interest depended on a number of contingencies. But where a court fine for breach of a by-law would be paid under legislation to a borough council, a councillor of that body who held office as a Justice of the Peace was disabled from issuing a summons upon the information of the council. A decision of a Compensation Court was invalidated because one of the parties before the court was represented by a partner in the same law firm as a lay member of the court, the lawyer’s fee being paid into the joint partnership account. Indirect pecuniary interests engage an expansive protean notion. They may arise from a relationship (rather than from a contractual or financial connection) and extend to cases of potential advantage, benefit or liability. Where a magistrate had been lawfully engaged in financial business transactions with a person up until the day before that person sought from the magistrate a liquor licence, remarkably it somehow survived scrutiny. The myopic focus applied, namely, that there was no current conflict of interest involved, was quite unreal. It asked the wrong question. A clinical, temporal distraction wrongly succeeded. It was implausible in the extreme that one night’s sleep altered the appearance of anything, although it was literally no longer a current pecuniary association.

The core function of the judiciary in any jurisdiction, it has been suggested, consists in the ‘determination of matters in court by the delivery of judgments enforceable by process of law’. Chapter 8 of the South African Constitution affirms this view by associating ‘judicial’ matters with the business of the courts. Section 165(1) of the Constitution vests the ‘judicial authority of the Republic’ in ‘the courts’, and s. 166 indicates that the ‘judicial system’ consists of the various courts. Tellingly, too, ss. 174 and 175 deal with the appointment of judges and acting judges not in the abstract but as members of particular courts.

Such provisions add colour to the concept of judicial functions, but without necessarily preventing judges from undertaking non-judicial functions in addition to their core activities. South African judges have in fact always performed extraneous functions, and in this country there is a long and notable tradition of depending on judges to chair governmental commissions of inquiry – often, if erroneously, referred to as ‘judicial commissions’.