magine a system of pretrial procedure that does not include the discovery methods that are familiar to us, such as depositions, requests for admission, interrogatories, or requests for production. In short, the concept of "voluntary disclosure" is practically unknown in the Polish system. If an attorney should desire to obtain documents from the opponent, then a request is sent to the presiding judge who initially decides whether to ask the opposing attorney to turn them over and, if so, whether to turn them over to the judge for a preliminary review as to relevance and authenticity. It is then the prerogative of the trial judge to turn them over to the requesting attorney, or not.  In addition, the opposing attorney is under no legal obligation to turn them over to the judge anyway. All of this is over and above the notion that a deposition must be taken in the presence of the judge who rules on objections on the spot, thus taking up a lot of the judge's time in pretrial rulings that will have a heavy impact on the trial. At the end of the day, there is no mechanism to force compliance with the court's request.  This is what remains of a system bequeathed to post-Communist Poland and represents a combination of Napoleon and Karl Marx.

Judge Marshall addressing the Iustitia conference in Lublin in the spring on ADR.

For the past 17 years, it has been my privilege to teach a course in American Legal Studies in the Faculty of Law at Marie Curie Sklodowska University (UMCS) in Lublin, Poland, during the spring term. The procedural and trial differences between the common law and civil law systems have been significant in the past, to be sure. With the modern globalization of the economy and the need for lawyers to understand different legal systems, the course has evolved to meet the more modern problems that Polish lawyers might encounter in an American court. Over the years, the graduates of this course and the demonstration jury trial that is part of it have become trial attornies, law professors, and judges.

In the spring of 2009, one of my former students, now a judge and the head of the administrative division of the "district" court in Lublin, approached me to discuss with some of the other judges how our procedural rules dealt with certain problems that they were experiencing in the Polish courts at present. There was a small meeting with a group of younger judges who were interested in these issues, and, as it developed, they asked me to come back in the autumn to address a meeting of the Polish Judges' Association "Iustitia" in Warsaw on the subject of pretrial procedure in America. The notion that I would be addressing judges from all over Poland, including their Supreme Court judges, the Minister of Justice, and law professors from all of the major universities added a certain focus and edge to the topic.

In October, there actually were two presentations, one in Lublin and then the one to the larger audience at the University of Warsaw. In each case, it was important to have an excellent interpreter who was himself a former student of mine and a judge, so there was no problem of translating the legal concepts. It was the concepts themselves that were novel to our Polish colleagues. In particular, the notion of voluntary disclosure and sanctions seemed to dominate their thought process when discussing potential reform of their system along the lines of our practice.  

Voluntary disclosure of documents or production of things, which we tend to take for granted in the United States, has become increasingly important as a pretrial concept in Central Europe as more and more commercial interaction with the West expands in quantity and complexity. After all, if an attorney can obtain the necessary documents from an opponent quickly, it may avoid litigation altogether. Similarly, turning material items over for examination by an expert is difficult at best. In the Polish system, neither of these things normally occurs without the presence of the court in some capacity. Of course, as noted above, the resisting attorney may not turn them over at all. It is at this point that the questions from the audience turned to the sanctions mechanisms discussed in our rules.

Based upon my research and discussions with Polish judges, I had learned that there was no such procedure as contempt of court, criminal or civil, whereby the judge could enforce his or her orders directly on an offending party. In the most abstract sense, the contempt power has its roots in the notion that the court represents the judicial power of the Republic in the context of the dispute before it. As a result, to refuse to obey the order of the court is, quite simply, an insult to the Republic that should not be allowed to go unpunished, lest the Republic be diminished in some way.

In the course of the lecture, the Minister of Justice (newly appointed) was making notes on our requirements of due process in relation to civil contempt. To place someone in jail to coerce, but not overtly to punish, was clearly a novel thought. Based upon the reaction of the judges in the audience, it was also a popular idea. That revealed that some aspects of courts and lawyering are universal, particularly in being stubbornly adversarial.  For the younger judges, it was apparent that they were looking at sanctions as part of the reform of the pretrial procedure so as to allow the court greater flexibility in management of discovery issues. The prevailing view seemed to be that this would lessen the burden of the administrative aspects of the judicial activity and free the judge to be more of a judicial official.

Following the conference in Warsaw, it was proposed that when I returned in the spring of 2010, Iustitia in Lublin would host a conference on alternative dispute resolution.  It has only been relatively recently that ADR as we know it, particularly mediation in private litigation, has become a formal part of the judicial process. Of course, arbitration, particularly in international commercial transactions, has been in Poland even during the period from 1945 to 1990. During that time, mediation existed on a purely voluntary and local level outside of the judicial system. The reason was purely practical: no one wanted to go into a court dominated by Marxist legal concepts if they could settle it with their neighbors locally. Again, it was the mechanisms by which ADR operated in the American system that was the focus of the lectures. In this case, there were two lectures, one to Iustitia and one as a "graduate" seminar at the Law Faculty of UMCS.  

Judge Marshall's lecture at UMCS on the topic of mediation as "we do it in Texas".

In the midst of this judicial intellectual ferment, the Polish Ministry of Justice and Supreme Court have recognized the need for a formal judicial education program, and they have created the National School for Judges and Prosecutors. It has two divisions, one that is in Kraków for newly appointed judges. The other, as it happens, is located in Lublin, and it has the mission of developing continuing judicial education programs for the judiciary on a national level.  As it happens, two of the judges on the faculty of the School are former students. The immediate consequence of this is that a conference has been planned for spring 2011 the topics of which will be legal ethics (The Texas Rules of Disciplinary Procedure) and the Code of Judicial Conduct. For this effort, the faculty will include a criminal attorney and a civil attorney to discuss the role of legal ethics in the litigation context, both as to the clients and in relation to the court. In addition, the Executive Director of the Texas Commission on Judicial Conduct has graciously volunteered to make a presentation on the rules that govern judges in our system and what happens to judges who transgress those rules.

There are two impressions of the Polish system and how the American system might relate to it in a positive way that emerged from this series of lectures. First, the pretrial discovery and sanctions concepts clearly have application in the commercial and personal injury contexts and, with only slight modifications from what we know in Texas, could fit in the Polish model very well. Second, the ADR systems, particularly mediation, seem to fit in private litigation most conveniently in the domestic relations law. While there was no discussion of collaborative law as we know it in our domestic relations cases, it would appear that that could be a next step.

On the judicial side, it is apparent that continuing judicial education is recognized as an important component of maintaining a competent judiciary in which the public can have confidence. For my part, it is truly humbling to think that we have had such a great opportunity to support the recovery of a Europe that has suffered so much for so long by the addition of a little touch of the New World.