WITNESS TESTIMONY IN DUTCH CIVIL PROCEDURE: FACTS, FIGURES AND STATISTICAL RELATIONS

Summary

Introduction

When it comes to assessing the administration of justice it is likely that there is a consensus about one thing: the justice system needs to be efficient. A higher investment of time and money than strictly necessary is disadvantageous for citizens, the government and economic interests. Thus the complaints that adjudication takes too long.

Efficiency is largely dependent on the way the administration of justice is organized; it depends primarily on the procedural model. Researchers often look at the time proceedings take, for a short procedure is beyond doubt an efficient one. However, this is not enough: a judge deciding a case by rolling the dice will hardly need any time for his decision, but the result is a judgment of meagre quality. The best way to assess in an objective manner whether (an aspect of) a justice system is efficient is therefore to look for factors that influence the efficiency of proceedings and assess their working. In that way, the question whether quality is suffering under the desire to have an efficient procedure can be taken into account.

This empirical study is about witness examinations in Dutch civil procedure in commercial cases. Examining witnesses is part of giving evidence or - seen from a more inquisitorial point of view - finding the truth. It is therefore a crucial part of civil procedure. Dutch civil procedure is only partly adversarial and is strongly modelled towards efficiency by giving the court extensive powers to determine the course of the proceedings. A procedural model such as this, aiming at a quick judgment, harbours the risk of inaccuracy. This is a real risk in Dutch procedure since, especially compared with common law countries, there is not that much room left for the parties during witness examination. Observing witness examinations in Dutch courts can be useful in determining whether overzealousness plays too big a role.

This contribution will start with a description of civil procedure in commercial cases. Next, the four indicators that were used to assess witness examinations in Dutch courts will be introduced. What follows is a brief description of the research design, the research method and the actual research, with mention of some of the difficulties that had to be overcome in order to gain access to public hearings.