The first consequence is that enormous importance

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The first consequence is that enormous importance attaches to the preparation of the trial by the attorneys. This is not so in the Civil Law, where the division of the trial into several hearings separated by intervals means that if one party makes any surprising assertions or arguments the other party has until the next session to produce further evidence or facts in rebuttal, so that gradually, as the proceedings are resumed and with energetic assistance from the judge, the essential matters of fact get defined, what is in dispute is winnowed out from what is not, and the basis for decision is achieved step by step. But in an Anglo-American trial there is only a single hearing, so before it ever begins each party must not only have thought out his own arguments and evidence, but must also know his opponent's, because if unexpected evidence emerges one cannot simply propose an adjournment. This has two consequences: every attorney (in England, solicitor) must interview 'his' witnesses before the trial and ascertain exactly what they will say, conduct which would strike the German attorney as verging on the unprofessional in view of the risk of improper influence. Secondly, each party has the right under Anglo-American procedural law to make the other party disclose information and produce documents relevant to the forthcoming trial... When the Anglo-American trial starts, the attorneys will be carefully prepared for it, but the judge will have only the vaguest idea of what the issues and testimony may be. He is supposed to rely on the attorneys to present all the necessary facts and law by word of mouth. How the presentation is effected is a matter for the attorneys: they alone decide which witnesses to call, how many, and in what order; it is the attorneys also who question the witnesses, each witness after examination by 'his' side being 'handed over' for cross-examination to the other side. The same is true of experts. In a medical malpractice suit, for example ... each party produces its own expert in court, and such experts are subject, just like any other witnesses, to examination and cross-examination by the attorneys for the two sides. This spectacle of formalized duelling between experts, with the attorneys displaying their ad hoc knowledge in an intrepid if amateur manner, is quite a thrill for the Continental observer, but he may be tempted to ask whether it would not be cheaper, simpler, and quicker for the court itself to appoint a single reputable expert whose independence and neutrality would be guaranteed by the fact that his loyalty was due to the court rather than to either of the parties. cont’d over page 36
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY When witnesses and experts are being questioned, the judge just listens attentively. If he speaks, it will be to rule, at the request of a party or on his own motion, on the admissibility of a question put to a witness or party, or to ensure adherence to the rules of the game in some other respect ... The role of the Anglo-American judge may be
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