Overwhelming evidence | In Principle

Poland’s rules of civil procedure require the parties to present all their evidence at the very beginning of the case. This is supposed to expedite the proceedings. But is it counterproductive?

The lengthiness of judicial proceedings may not be the biggest problem of Poland’s justice system, but it certainly is a fundamental one. (We wrote about the estimated duration of various types of cases in the article “How long will it take, counsellor?”) The reasons behind this are complicated, but we could at least venture the theory that the regulations supposedly designed to speed up the process are themselves partly to blame.

This refers to the obligation imposed on the parties to raise all of their evidence at the very beginning of the case, usually in the pleading initiating the proceeding or the response. Currently this obligation is set forth in Art. 207 of the Polish Civil Procedure Code. The drafters of this provision sought to break the habit of parties continuing to raise new evidence late in the proceedings, which was considered to be one of the factors contributing to the unnecessary prolongation of civil cases.

But the reality in litigation is that out of a concern that evidence might be excluded if raised too late, the parties now deluge the courts with applications to admit evidence that is entirely unnecessary to the case. This can be traced to the fact that at the stage of filing their initial pleadings, the parties are often unable to fully predict how valuable certain evidence will be, and as a precaution they present much more extensive evidence than will ultimately be useful for resolving the dispute.

Most cases turn around one fundamental disputed issue which does not really require an extensive array of evidence to resolve. For example, in most cases witness testimony is expendable. The relevant facts can usually be proved using other forms of evidence, or even undisputed factual allegations. But in practice the court hears testimony from the parties and other witnesses in almost all cases. Depending on the number of witnesses and where they reside, it may be obvious from the very outset that the case is going to last several years, because hearing dates are usually scheduled several months apart.

The more narrowly the courts interpret the regulations enabling the parties to raise new evidence later on, the more unnecessary evidence the parties will raise in the plaintiff’s statement of claim and the defendant’s response.

Similarly, the courts are generally not in a position at the beginning of the case, and often even later on, to assess how useful a given piece of evidence will be for the case. So they, too, out of concern that they will be overruled on appeal, tend to admit nearly all of the evidence raised in the initial pleadings, regardless of whether it is truly relevant to the case. But an experienced judge who is well-versed in the case should have no difficulty penetrating to the heart of the matter, focussing on that and clarifying the issues that are truly disputed, rather than spending years deliberating over items of secondary importance at best. The judge should also be able to determine readily whether a given piece of evidence raised in the case truly warrants consideration or has only been raised by the party for the purpose of delay, to put off the decision in a case which it is afraid it will lose. For this reason, the court’s use of tools restricting the assertion of evidence during the course of the proceeding should be flexible and suitable, and not consist of automatically rejecting any new evidence offered later in the case.

The lengthiness of judicial proceedings is not good for anyone. For good reason, many studies have found that this is one of the main obstacles to economic growth in Poland. The effectiveness of the judiciary is one of the pillars of a proficient state. In the field of criminal law, the swiftness and certainty of punishment has been shown to be the strongest factor for reducing crime. In civil litigation as well, great weight should also be given to swiftness and certainty. In Poland, infringers of the civil law often enjoy an undeserved sense of impunity, assuming that the injured party will not pursue its rights in court, and even if it does, will have to bear high costs and wait years for a judgment. The lengthiness of proceedings unfortunately encourages civil lawlessness, which, in a vicious circle, generates more litigation.

The battle with the problem of overly long civil proceedings therefore requires more intensive action than has been taken so far. The task on the front lines should be to identify the true sources of the problem. As we have seen, it may even prove that the solutions that were supposed to expedite litigation are one of the reasons cases take too long.

Dr Marcin Lemkowski, Dispute Resolution & Arbitration Practice, Wardyński & Partners