Behind the scenes of a civil trial: from the hearing to the judge's decision

The courts can be impressive, even intimidating. Behind the often closed doors of courtrooms and chambers, how do judges reach a decision that can have a major impact on people's lives? The process that leads to a civil judgment is not arbitrary; it follows precise stages and principles designed to ensure that justice is as fair and enlightened as possible. Understanding this process can help demystify the judicial institution and make it easier to deal with your own case. This article takes you behind the scenes of the judgement-making process: the essential role of the parties, the course of the hearing where everything is decided, and finally, the more secret phase of deliberation where the decision takes shape.

You set the framework: the parties' power over the dispute

Contrary to what is sometimes thought, in a civil trial the judge is not an all-powerful investigator in search of the absolute truth. The framework of the dispute is largely defined by the parties themselves, i.e. by you and your opponent. This is known as the "dispositif principle".

• Just the facts: It is up to the parties to provide the factual elements on which the judge will base his decision. As stated in article 6 of the Code of Civil Procedure, the parties have the burden of alleging the facts on which their claims are based. The judge may not rely on facts that have not been introduced into the debate by one or other of the parties (article 7 of the same Code). He cannot "invent" circumstances or events to justify his decision. Your role, or that of your lawyer, is therefore essential in presenting all the relevant facts and proving their existence.
• The subject of your request : You are also the one who determines what precisely you are asking the judge to do. This is the "subject of the dispute" (article 4 of the Code of Civil Procedure). Are you asking for a sum of money? Termination of a contract? Recognition of a right of way? The judge must rule on all what is required, but only on what is requested (article 5). He cannot grant more than you have claimed (known as ultra petita), nor something different (extra petita), nor forget to respond to one of your requests (infra petita). Clearly defining your demands is therefore essential.
• Your legal arguments : Finally, you provide the judge with legal reasoning to justify your claims, based on the rules of law (statutes, regulations, case law, etc.). This is the "legal basis" for your claims. However, on this point, the judge has greater power. Article 12 of the Code of Civil Procedure requires him to decide the dispute in accordance with the applicable rules of law. He can, and indeed must, "give or restore their exact characterisation to the facts and acts at issue, without stopping at the characterisation proposed by the parties". In other words, if you have mischaracterised your claim from a legal point of view, or if you have forgotten the most relevant rule of law, the judge can correct it. But he will only do so on the basis of the facts that YOU have brought to the debate.

This central role of the parties underlines the vital importance of preparing the case properly, gathering all the necessary evidence and building a solid case, both on the facts and on the applicable law. A well-prepared case is the indispensable basis for an informed and favourable decision by the judge.

The hearing: a time for discussion and debate

The hearing is often seen as the heart of the trial. It is the time when arguments are presented orally (even if, in many written proceedings, the essence of the case is contained in the pleadings), when the lawyers argue the case and when the judges can ask questions. The procedure is governed by fundamental principles.

Open doors (in general): the principle of advertising

In France, justice is dispensed "in the name of the French people". It is therefore logical that, as a matter of principle, hearings should be public (articles 22 and 433 of the Code of Civil Procedure). Anyone can enter a courtroom (subject to seating availability) to hear civil cases being argued. This publicity is a guarantee of transparency and enables citizens to monitor the way the justice system works. It helps to maintain confidence in the judicial institution.

However, there are exceptions to this principle. The law provides that certain hearings must be held in "chambers", i.e. without the public being present. This is the case for most non-contentious cases (where there is no dispute), but also for contentious cases involving personal privacy, such as divorce, disputes relating to parentage, or educational assistance measures concerning minors. The judge may also decide to hold the hearing in chambers if there is a risk that publicity might infringe on privacy, if all the parties so request, or in the event of disturbances disturbing the serenity of justice (article 435 of the Code of Civil Procedure).

Everyone has their say: the adversarial principle

This is undoubtedly one of the most important principles of civil litigation. The "contradictoire" (articles 14 to 16 of the Code of Civil Procedure) guarantees that each party has the opportunity to know and discuss the arguments and evidence of their opponent. Imagine a match in which one team did not know the other's tactics or did not see the ball coming: that would not be fair. The adversarial principle is designed to ensure this essential balance.

In practical terms, this means that :

• No party may be tried without having been heard or at least summoned to appear (article 14).
• Each party must communicate "fairly" and "in good time" to its opponent all the means of fact, evidence (exhibits) and legal arguments that it intends to use (article 15). You can't keep a piece of evidence secret, only to bring it out at the last minute and surprise your opponent.
• The judge has a duty not only to ensure that the parties respect this principle, but also to respect it himself (article 16). He may not base his decision on an argument or a fact that the parties have not been able to discuss. If he raises a new legal argument ("plea in law raised ex officio"), he must invite the parties to present their observations.

Failure to comply with the adversarial principle is severely punished. A document submitted too late, which does not allow the other party to respond effectively, may be excluded from the proceedings by the judge. A serious breach of this principle may even result in the judgment being declared null and void.

What happens at a hearing

The hearing is held on the date and at the time set. Although a postponement may be requested, the judge is not obliged to accept it, as he must ensure that the case is heard within a reasonable time.

The order of speaking is generally as follows (article 440 of the Code of Civil Procedure):

1. If a judge has been appointed as rapporteur (common on appeal, possible at first instance), he or she presents the case in a neutral manner.
2. The claimant (or his lawyer) presents his claims and arguments.
3. The defendant (or his lawyer) responds and presents his defence.
4. The claimant may have a final reply.
5. If the public prosecutor intervenes as an "added party" (giving an opinion in the interest of the law), he speaks last.

The presiding judge directs the proceedings: he or she gives the floor, may ask questions of the parties or lawyers to clarify certain points (article 442), and ensures that the hearing is conducted in good order. He may also decide to close the proceedings when he considers that the court is sufficiently informed (article 440), at which point the exchanges stop and the case is "taken under advisement".

Deliberation: the secret phase of the decision

Once the hearing is over, the judges retire to deliberate. This is the phase during which they will examine the entire case file (submissions, exhibits), compare their analyses and reach their decision.

• Who is deliberating? Only judges who have attended the entire hearing may take part in the deliberations (article 447 of the Code of Civil Procedure). If the composition of the court changes during the proceedings (e.g. a judge is transferred or becomes ill), the proceedings must in principle be resumed before the new bench. This rule ensures that the decision is taken by judges who have full knowledge of the case. It is also linked to the requirement of impartiality: a judge may not take part in the decision if he or she has already had to hear the case at another stage (for example, at first instance and then on appeal in the same case).
• The secrecy of deliberations : The judges' deliberations are secret (article 448). This means that no-one other than the judges concerned may attend (not the parties, not the lawyers, not even the court clerk). Nor is it known how each judge voted individually, or exactly what exchanges took place between them. This secrecy is considered to be an essential guarantee of the independence of the judges and the freedom of their internal discussions.
• The majority decision : Judgment is given by a majority vote of the judges who have deliberated (article 449). In the case of a panel (typically 3 judges), it is sufficient for two judges to agree. The opinion of the minority judge does not appear in the final decision, unlike in other legal systems.

Once the decision has been taken under advisement, it will be formalised in writing and signed, before being officially pronounced on the date indicated to the parties.

A civil trial is a regulated process designed to ensure that each party is able to assert its rights fairly before a decision is taken by independent and impartial judges. Knowing these stages allows you to approach the proceedings with greater peace of mind and to work more effectively with your lawyer to prepare an effective defence. If you are involved in proceedings and would like strategic advice on how best to navigate these stages, our firm is here to help.

Sources

• Code of Civil Procedure (in particular articles 4 to 16, 22, 430 to 449)
• Code of Judicial Organisation (in particular article L111-9 on impartiality)