Lebensraum

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In Which I Admire Millions of Tiny German Lawsuits And Annihilate Several Canards About the Law

The U.S. is famous in Germany for its 'runaway' juries which hand down zillion-dollar lawsuits against poor defenseless companies. Yet, as I told my dumbfounded students, Germany is a far more litigious society than the USA. In fact, according to a book-length 1998 study, Germany is the most lawsuit-happy country on earth:

Country Cases per 1,000 Population

• Germany 123.2
• Sweden 111.2
• Israel 96.8
• Austria 95.9
• U.S.A. 74.5
• UK/England & Wales 64.4
• Denmark 62.5
• Hungary 52.4
• Portugal 40.7
• France 40.3

My German students were dumbfounded by this fact. Most of them got their image of the world from the mainstream press. And, as usual, German journalists tended to obsess over the real or imagined failings of other countries, while remaining ignorant of what was going on in their backyard.

But aside from the good clean fun of this tu quoque response, it's interesting to think about why Germany is so litigious. I think there are 4 main reasons:

• Legal insurance (Rechtschutzversicherung). Millions of Germans have legal insurance policies that pay for lawyers both to file claims and defend against them. This insurance is affordable because litigation costs in Germany are low. Legal insurance is actually an excellent idea, every country in the world could benefit from widespread legal insurance. What it means in Germany, though, is that if you have a policy, you don't have to think twice about filing a lawsuit. Granted, the lawyer is not supposed to file if you don't have a claim, but many do anyway. Legal insurance also provides a lifeline for many small-time lawyers — they can patch together a decent livelihood by having a constant docket of 40-50 small time cases going on at any time. None of these cases will generate a huge verdict, but a steady stream of small payments is enough.
• Lawsuits are a fact of life. Nobody really takes them seriously. If your landlord hikes your rent, you use your legal-insurance lawyer to fight it. The landlord uses their legal-insurance lawyer to defend. After all, if you don't sue, you'll certainly have to pay the extra 10% in rent. If you do sue, you might end up with a discount. The landlord would probably do the same thing in your position, and knows this.
• Close neighbors make bad blood. Germany is a small country packed with people. Everything you do in public is going to have some effect on your neighbors. If a potted plant falls off your city balcony, it's going to hit someone or something below. If your cat likes to relieve themselves on your neighbor's lawn, they're going to notice. And might just take lethal action. Your barbecue smoke is going to trigger someone's asthma 5 houses down. The list goes on and on. Every German state has a long, complex "neighbor law" (here's the one (g) for my state), and many lawyers do nothing else. And once again, these petty squabbles are going to end up in court because it's so easy to go to court because of legal insurance. 

And finally, no lawsuit is too tiny. As Wagner once said, a German is someone who will always do something for its own sake. Which means Germans will file a suit over anything. Why, here's a story (g) from the excellent criminal-defense blog lawblog. Two retirees went fishing for deposit bottles in Munich, a favorite pastime of poor Germans, or just ones who need some way to fill their days in the fresh air.*

They approached a large man-sized glass-recycling container, whipped out their grabbers, and started fishing around inside the container. Recycling containers are supposed to be reserved for bottles which don't have a deposit on them, like wine bottles. But many people don't care or don't know how to tell a deposit from a non-deposit bottle, and just toss everything in.

Sure enough, our two hunters found 15 deposit bottles with a total value of € 1.44. Two other Germans, who were certainly feeling very German that day, called the police and reported the bottle-fishers for theft. Wait, what? Two people minding their own business, helping recycle glass, augmenting their puny incomes, harming nobody, and their fellow Germans report them to the cops? Welcome to Deutschland, my friends.

Now German prosecutors are obliged to investigate every credible accusation of crime that comes to their attention, the famous "Principle of Legality"**. This they did. The first thing they had to determine was what the value of the theft was. Technically, this was a theft — once you throw a glass bottle into a recycling bin, it becomes the property of the recycling company. So you might think that the amount of the theft was the deposit value of the bottles. But no! It turns out that the recycling company does not separate out deposit bottles from other ones. Scandalous, I know. So all the bottles just get melted down. The prosecutor asked the recycling firm how much value the bottles would have as recycling material, and the firm said: basically, it's too small to even put a number on.

At this time, the prosecutor chose to halt the proceedings (einstellen) based on the idea that there was no public interest in prosecuting the offenders. The writer at lawblog thinks this was the wrong reason to stop the prosecution — he thinks a better theory is to deny the people had any attempt to commit theft, because they had no intent to take possession of the bottles — their ultimate goal was simply to transfer them to a different owner. 

Be that as it may, the main thing to notice here is that several different government employees spent hours of their time and used considerable resources to investigate an accusation of a crime which, at the very most, involved the lordly sum of € 1.44. It's probably only a slight exaggeration to say that the German state spent 1000 times more money investigating the theft than it was actually worth in the first place.

Now, am I going to snigger about this? Of course I am, and so are you. But at the same time, I'm not going to go too far. The most important thing to keep in mind about high numbers of lawsuits is that they are an important sign of social health. In the vast majority of societies, lawsuits are prohibitively expensive and courts are woefully underfunded and corrupt, so nobody trusts them. Germans and Americans trust courts to usually resolve legal disputes in a fair and equitable manner, otherwise they wouldn't seek them out so often. They're right to do so; both the USA and Germany have exceptionally fair and efficient legal systems, despite their imperfections. A fair, professional, and generally non-corrupt legal system is one of humanity's most important achievements, full stop. Most countries don't yet have one. If you happen to live in a country which does, take a moment and thank your lucky stars. 

* You'd be surprised how many Germans decide they just don't fancy showing up to work anymore and having someone boss them around and tell them to do things. So they develop something hard to pin down, such as a bad back or burnout stress, hire a good employment lawyer, and presto! They're still technically employed in a certain sense, but they don't actually have to, you know, do anything. Everybody wins: their former employers are free of someone who wasn't really contributing, the employee has all the free time he wants, and most importantly, the government doesn't have to formally add this person to the unemployment rolls. Northern European welfare states are notorious worldwide for using a million different tricks to lower their official unemployment rate, and this is just one.

** Some German lawyers, or wanna-be lawyers, believe a lot of adorably misguided things about the principle of legality. If you begin talking about the American legal system, they will get up on their hind legs and begin intoning something like this: "Well, you see, in America most criminal cases are resolved by plea-bargains, where the defendant admits a crime — quite possibly not the one he actually committed — in return for a lighter sentence. This shows the irresponsible, frivolous gamesmanship of the system, where the objective truth of what happened can be bargained away as if justice were nothing more than a poker game. Here in Germany (string music starts swelling in the background), we believe in the principle of legality, which means the prosecutor must investigate all crimes and must prosecute based on the objective facts of what the defendant actually did."

It's at this point that I usually interject to point out that this speech is, not to put too fine a point on it, a crock of shit. First, German prosecutors are absolutely not obliged to bring every case to prosecution. As with all German legal principles, the principle of legality has a pragmatic loophole so big you could fit Saturn through it. A prosecutor is always permitted to "suspend" (einstellen) a prosecution if it is deemed a petty offence (§ 153, Criminal Procedure Code). Suspend is yet another German euphemism, it means the case is dropped. Although there may be a tiny theoretical chance of it being re-started, this basically never happens.

There are many other sections of the Code that permit the prosecution to suspend the investigation or to not bring charges on a variety of different grounds, the most frequently used being the prosecution's belief that bringing charges is "not in the public interest" for some reason. As you might guess, there are hundreds of stories of prosecutors suspending prosecution of high-powered or well-connected people for vague reasons. In fact, there's a whole book (g) ("Prosecution Unwanted!") about this, although it's not very convincing overall.

Also, if you believe plea bargains don't exist in Germany, I've got a bridge in Moscow I'd like to sell you. Even before plea bargains were legally allowed in Germany, it was common knowledge that prosecutors used their huge discretion to plea-bargain all the time. Like American prosecutors, German prosecutors are hopelessly understaffed, and the entire justice system would collapse if cases couldn't be resolved informally.

The practice became so notorious that eventually the federal legislature decided to stop pretending and legalize it. In 2009, it passed a law which, for the first time, legally recognized plea-bargaining in Germany. The law was full of procedural safeguards meant to ensure that the defendants' rights were respected and the principle of legality was not undermined. Would the law pass constitutional muster? The German Federal Constitutional Court held that it did, in 2013:

1. The principle of individual guilt enshrined in the Basic Law (Grundgesetz – GG) and the related duty to ascertain the substantive truth, as well as the principle of fair trial in accordance with the rule of law, the presumption of innocence, and the court’s duty to maintain neutrality make it impermissible to allow parties to the proceedings and the courts to freely determine how to ascertain the truth, how to apply the law to the facts so established, and what sentences to impose. 

2. Plea bargains between the court and the parties to the proceedings that concern the trial’s status and prospects, and that promise the accused minimum and maximum sentencing limits if he or she confesses, entail a risk that the constitutional requirements will not be fully met. Nevertheless, the legislature is not a priori precluded from permitting plea bargains to simplify proceedings. It must, however, take adequate precautions to ensure that the constitutional requirements continue to be met. The legislature must continually review the effectiveness of the designated safeguard mechanisms. If they prove to be incomplete or unsuitable, the legislature must make improvements and, if necessary, revise its decision to permit plea bargains in criminal proceedings.

The FCC can be a very pragmatic court sometimes, as here. The court noted that a study had shown that many of the detailed procedural requirements of the law were being ignored in practice by overburdened prosecutors, but held that this did not require a finding of unconstitutionality.

Thus, as in so many areas of comparative law, two countries which appear at first to differ fundamentally on principle end up, in practice, choosing basically the same real-world solutions to legal problems.

Quote of the Day: Robert Walser on his “Docile Little Dog”

"At times, Walser's stylistic prowess tempts him to believe that style is all. But never for long, since, in spite of his precarious life on the margins, he was also a writer with strong convictions about how people should behave, what a civilized society would look like etc. Yet he never lapses into sentimentality. What saves him from that fate is the pervasive self-irony that kept following him, as he once put it, 'like a docile little dog.'"

Walser Translator Mark Harman

German Word of the Week: Fremdaussprechen

Behold the German (or "German") menu for McDonald's:

Holy superfluous nipple, you might be thinking: it's almost all in English! This must make ordering a breeze even if you don't know German.

Not so fast. If you just waltz up to the counter and announce you want a "McWrap Chicken Caesar" the way you'd ordinarily pronounce it in English, there's about a 50/50 chance the clerk will look at you with befuddlement. And nobody likes to be befuddled. Or just plain fuddled, for that matter. Wait, where the hell did that word come from?

Where was I? Oh, right. If you want to be understood the first time, you're well-advised to butcher the pronunciation of "McWrap Chicken Caesar" so it sounds the way Germans would pronounce it. Germans consider it hip as hell to read English and write English, but not many can actually pronounce it.

Take the Big Mac. The "a" sound in Mac does not exist in German. German vowels tend sound more pinched and nasal and front-of-mouth than English vowels. Also, the standalone letter "c" is rarely used in modern German, having been replaced with the much more straightforward "k". The word for Caesar in German is Kaiser. Explains a lot, doesn't it?

So a German would pronounced Mac much more like "meck" (which a German, in turn, would spell Mäc). And a hapless Teuton with a high-school education would look at the meaningless letter-salad "Caesar", which breaks about 8 rules of German orthography, and pronounce it "TSAY-zarr"). "Big Tasty Bacon" becomes "Beg Testy Beckon".

Germans are aware of how ridiculous it is to use English words you can't pronounce. There's even a series of books (g) mocking the Deutsche Bahn (a favorite German pastime) based on the English phrase German train conductors always say at the end of announcements: "Thank you for traveling with Deutsche Bahn". The books are called "Senk ju vor träwelling", which mangles German spelling to re-create, for Germans, the butchery of words in English. Put that in your pipe and smoke it.

So whenever I go to a store or a fast food place or cafe here in Germany and encounter English words, I gotta say 'em all wrong. Of course I could insist on the proper English pronunciation, and attach a short homily on how you shouldn't butcher words in languages you don't understand, but I prefer to be served spitless beer and dine unslapped.

I do as the Romans do, and pronounce my own beloved mother tongue as if my mouth were full or marbles. It always leaves me feeling soiled, as if I were begging for change in a red-light district by by reciting the Second Inaugural Address while wearing a crotchless Abe Lincoln costume.

Oddly enough, German doesn't actually seem to have a word for the phenomenon of having to pronounce your own language incorrectly to be understood in a foreign country. So I'm going to make one: Fremdaussprechen. Fremd for foreign or alien, and aussprechen for pronounce.

An English Idyll in the Rheinland

This blog is getting too political lately. Now for something completely different.

I visited Heltorf Castle Park (g) yesterday, an English-style landscape park from the early 19th century located on the very northern outskirts of Düsseldorf. It's part of the private holdings of the Spee noble family (g) which has resided near Düsseldorf for centuries and has left its mark on the city and the surroundings in innumerable ways. 

The park was originally part of the private grounds of the nearby Castle Heltorf, an early 19th-century pile. A certain Abbé Biarelle conceived of the idea of creating an English-style park in 1796, and the renowned landscape architect Maximilan Weyhe (g) began the work in 1803. The park is 54 hectares, and open to the public only on weekends during spring and summer. I'd always meant to visit. I rarely met people who had, but the ones who did returned singing its praises. 

It's quite far outside the city center, a 20-minute streetcar ride away, but very much worth it. The place is magical, on a par with the finest English parks. The landscape is lush, slightly hilly, and dominated by a spectacular centuries-old trees from all over the world — conifers, firs, maples, magnificent copper beeches (called "blood" beeches in German!) and the largest tulip tree in Europe, which must be at least 45 meters tall. A brook winds through the park, and forms several ponds in which fat carp meander and tadpoles squirm. There are innumerable rhododendrons throwing off blossoms in all colors.

And the best thing is visitors have it all to themselves, since the park isn't very well-known, is somewhat out of the way, and is only open for a small part of the year. I saw only 6 other people in the few hours I spent there. The park is located well outside the city, charges €3 entrance, and has no "attractions" or ice cream vendors or playgrounds or bandstands or trashcans or bathrooms or any other distractions. The only sounds are birdsong and occasionally a faraway hum of traffic. (This is the most densely-populated part of Europe, after all.)

If you need any more stimulation than nature, discreetly molded by men of impeccable refinement, you're in the wrong place. And probably quite unclubbable.

I saw not a single speck of litter anywhere. The park doesn't even have any seating (although there are a few simple log benches) or signs, except two discreet wooden arrows pointing you in the general direction of the exit. You can get a photocopied map of the park about the size of a postcard at the entrance, but it looks to be about 30 years old. Not that anything's changed much in that time, of course.

You're meant to meander around, pleasantly lost, until you encounter a moat or ha-ha. The modern Spee family runs a forestry business in the area, and a small corner of the park is apparently used for this purpose, since I saw a small, discreet sign asking visitors to keep out. But that just adds to the charm. Something's got to pay for the massive effort of work it takes to keep the park looking so unpretentious.

I even ran into the owner, Wilhelm Count of Spee (pronounced 'shpay'). He lives in fairly modest water castle on the edge of the property, and was out taking pictures on this fine spring day. Like every member of the German nobility I've ever met, he was quite friendly and laid-back, but also impeccably groomed and dressed. He looks a bit like Ulrich Mühe. He obviously loves this jewel of a park, and seems to know something about every tree in it. He says he's working on a detailed book on the park's history, which I'm looking forward to.