In the inquisitorial process commonly found in civil law jurisdictions, the evidence is

gathered and entered into the trial record contemporaneously with the trial, as opposed
to the common law method of having the parties gather evidence over time and enter it
into the record all at once during the trial stage. Civil law legal systems tend to value
documentary and written evidence over oral testimony. When witnesses give testimony,
the judge orchestrates the questioning instead of the parties. The judge is also
responsible for collecting documents and physical evidence.

The parties’ attorneys/advocates in civil law jurisdictions are still involved in the
evidence-gathering process, but they play a more advisory role compared to attorneys
in common law systems. For instance, the parties formulate questions for the judges to
ask witnesses and make recommendations on how to interpret the evidence. The judge
orchestrates the proceedings by calling witnesses and eliciting testimony, as well as
collecting documents and physical evidence.

Rather than keep a verbatim record of witness testimony, the judge makes a synopsis
of the evidence that will later be used in the decision-making portion of the trial. The
parties also work to ensure that the judge accurately creates the trial record and argue
to frame it in a way that represents their interests.

Law can be categorized as substantive or procedural law. Substantive law defines the
type of conduct permissible and the penalties for violation; it is composed of the basic
laws of rights and duties. When people say an act is “against the law,” they are referring
to substantive law. A statute that prohibits fraud involving the use of a jurisdiction’s mail
or telecommunication systems would be considered a criminal statute; therefore, it is
most properly characterized as substantive law.

Common law jurisdictions, in which litigants are usually obligated to disclose relevant
information to the opposing side, impose a duty on litigants to take affirmative steps to
preserve relevant evidence, and this duty might arise prior to the commencement of
litigation. For litigation occurring in common law courts, the duty to preserve relevant
evidence typically arises when litigation is reasonably anticipated or contemplated.
When an organization is involved in litigation, this duty to preserve applies to the
organization’s management, and it extends to employees likely to have relevant
information. A violation of the duty to preserve occurs when information that is relevant
to anticipated or existing litigation is lost, destroyed, or otherwise made unavailable.
Violating the duty to preserve relevant information can result in several adverse
sanctions for the offending party, and such sanctions can arise from both intentional
acts and accidental acts through negligence. The adverse consequences can include,
but are not limited to, monetary penalties, the drawing of adverse inferences of fact, and
criminal penalties. The theory behind such consequences is that the individual who
makes evidence unavailable following the probable initiation of a lawsuit is aware of its
detrimental effect upon a case.
Examples of situations that could give rise to sanctions for failing to preserve evidence
include intentionally or accidentally:
· Erasing computer files (e.g., documents, images, or databases) relevant to
anticipated or existing litigation
· Losing or destroying physical evidence relevant to anticipated or existing
litigation
· Losing, destroying, or altering documents or records relevant to anticipated or
existing litigation
· Failing to suspend routine destruction of electronic data relevant to anticipated or
existing litigation

In many common law jurisdictions, the prosecutor and the accused are each entitled to
what are often called peremptory challenges. A peremptory challenge allows a litigant to
remove someone from the jury panel without comment or justification (i.e., without
giving cause). The prosecution, however, may not use its peremptory challenges in a
way solely influenced by racial factors.

Adversarial and inquisitorial judicial processes refer to the type of approach that courts
take to discover evidence in a case. Theoretically, neither of these processes is
exclusive of common law or civil law systems. Civil law jurisdictions, however, almost
always favor an inquisitorial process, while common law systems typically feature an
adversarial system.

Adversarial processes are those in which the parties to a proceeding drive the discovery
process (the search for evidence). The theory behind this approach is that the
competing interests of the parties will serve to expose the relevant facts of the case. In
adversarial systems, the parties to the litigation gather and present the evidence to the
court. For example, the parties (usually through legal counsel) conduct questioning of
fact and expert witnesses. The fact finder of the court, which can be a judge, jury, or
administrator, is unaware of the details of the case until the parties present evidence.
Judges facilitate the production of evidence between the parties, but generally do not
seek evidence on the court’s behalf.

People in a position of trust or fiduciary relationship—such as officers, directors, high-

level employees of a corporation or business, and agents and brokers—owe certain
duties to their principals or employers, and any action that runs afoul of such fiduciary
duties constitutes a breach. The principal fiduciary duties are loyalty and care. The duty
of loyalty requires that the employee/agent act solely in the best interest of the
employer/principal, free of any self-dealing, conflicts of interest, or other abuse of the
principal for personal advantage. The duty of care means that people in a fiduciary
relationship must act with such care as an ordinarily prudent person would employ in
similar positions
Generally speaking, discovery in adversarial jurisdictions is more secretive than in
inquisitorial systems, especially in criminal cases. Both the defense and the prosecution
typically have far fewer rights to access information possessed by the other party than
parties in non-criminal (i.e., civil) litigation. The prosecution is heavily limited in
disclosures it may obtain, and the defendant typically has the right to refuse to testify.
The prosecution generally must obtain a through search warrants or other means,
rather than by requesting the items from the defendant. However, the defense might still
be required to turn over certain types of evidence that it intends to use at trial, such as
the basis for any legal defenses raised, documents or tangible items, results of tests
intended to be used at trial, statements of expert witnesses it plans to use at trial, and
other items as required by the laws of the jurisdiction.

The defense is similarly limited in what it may request from the prosecution. The
defendant typically does not have a right to the work product of the prosecutor, which
includes reports, memoranda, and other internal documents made by the prosecuting
attorney in preparing for and prosecuting the case. However, most jurisdictions also
require prosecutors to turn over all exculpatory evidence that would tend to refute the
guilt or mitigate the punishment of the defendant.

In common law countries, there are two sources of substantive law: statutory law and
common law. Statutory law includes statutes passed by legislatures (and regulations
passed by administrative bodies).

The common law is developed on a case-by-case basis. That is, the common law is a
system of legal principles developed by judges through decisions made in courts. It
consists of the usages and customs of a society as interpreted by the judiciary, and it is
often referred to as judge-made law.

In the modern era of law, the trend in common law countries has been to move away
from rules that originate in common law and instead rely on statutory law—laws created
by a legislature or other governing authority—as the basis of a dispute. Additionally, civil
law systems use statutory law or a codified set of principles as their primary source of
law.

While jury trials are typically used in criminal proceedings in common law jurisdictions,
this is not always the case. For some cases, usually minor criminal offenses, a jury trial
may not be available. In serious cases, however, jury trials are typically available.
Additionally, many common law jurisdictions allow the defendant to waive the right to
trial by jury. When no jury is present, the judge serves as the fact finder. Most juries in a
common law criminal court consist of 12 or fewer jurors. The jurors are selected from
the local population, often by a random lottery using voter registration records and the
like.
Civil law systems typically do not provide for a separate hearing for sentencing. The
decisions of guilt and punishment are made and announced together.
In common law jurisdictions, when a defendant is convicted of a crime, the court
typically holds a sentencing hearing to determine the manner in which the defendant will
serve his sentence. Before the sentencing hearing, a government worker will prepare a
pre-sentence report that will review the defendant’s character, background, associates,
prior criminal record, and other factors relevant to setting an appropriate sentence. The
report is designed to assist the sentencing judge in assessing punishment.

Criminal proceedings in inquisitorial jurisdictions typically are divided into three phases:
the investigative phase, the examining phase, and the trial. The discovery process
occurs primarily in the first two of these three phases.
· In the investigative stage, the public prosecutor, judge, or both (depending on the
jurisdiction’s process) collect documentary and tangible evidence regarding the
case. The investigating party then decides whether there is sufficient evidence to
submit the case for prosecution.
· If there is sufficient evidence, the case moves on to the examining phase, which
is mostly conducted in writing. The judge completes a written record of the
evidence and may also collect testimony and additional evidence. If the judge
certifies that there is a valid case against the accused, the matter moves forward
to trial.
· The trial commences with the exhibition of the examining record before the
parties and the trial judge, jury, or panel. The parties argue their case before the
trial judge (or jury, if applicable).

Unlike in adversarial jurisdictions, sentencing is generally not a separate phase and

occurs at the end of the trial.

A divergence exists between common law and civil law systems in their appellate
processes. In most common law countries, appellate courts consider potential errors of
law de novo (meaning they evaluate them independently of the trial court’s
determinations), but generally adopt the factual findings of the trial court. No jury is
present, and there is typically no new evidence entered into the record. Therefore,
appeals in common law systems are typically limited to issues of law. Very rarely will an
appellate court reverse a factual finding of the trial court in a common law jurisdiction,
such as when there is an egregious and obvious mistake.

In most civil law systems, courts can review cases for both issues of fact and law. The
appellate court usually may perform de novo reviews of both the factual and legal
determinations by evaluating the compiled evidentiary dossier.

Most expert witnesses in adversarial proceedings are chosen by the parties to the
litigation (although adversarial courts may also appoint independent experts). In
adversarial systems, the expert and the retaining party are “allies” in the sense that
legal counsel will attempt to paint the expert’s testimony in the best light during direct
examination and will try to correct any issues in the expert’s testimony that the opposing
party raises. However, it is important that the expert never allow his opinion or best
judgment to be supplanted by that of the retaining party.

In most inquisitorial systems, the primary experts are obtained by the court. Expert
witnesses in inquisitorial jurisdictions are subject to various examinations, and might
have to conduct their own examinations of witnesses. Usually, all of the expert’s
activities related to the case are controlled by the judge, who determines the scope of
the expert’s analysis, the expert’s authority to access certain items of evidence, whom
the expert can interview, and several other functions. Because some jurisdictions allow
parties to submit testimony or evidence from their own experts in addition to the court-
appointed expert, the latter might need to interview the parties’ experts. The expert
should carefully follow the judge’s instructions, especially since the instructions are
usually made available to the parties of the proceeding.

Litigation privileges and other similar evidentiary protections, such as the U.S. attorney
work-product doctrine, protect materials that are prepared in anticipation of litigation.
Thus, they apply only to documents and things prepared in anticipation of litigation or for
trial.

These protections prevent the disclosure of communications made and documents

prepared for the purpose of litigation. Consequently, the protections they afford may
extend to communications of, and documents created by, third-party agents (e.g.,
consultants or fraud examiners) in preparation for litigation.

The standard of proof in civil law jurisdictions typically does not change in criminal and
civil trials; it is often described as the inner conviction of the judge, sometimes called the
conviction intime standard. This standard requires stronger evidence than the common
law preponderance of evidence standard, but not as much as the common law beyond
a reasonable doubt standard.

Direct examination is the initial questioning of a witness by the party that called the
witness (in adversarial jurisdictions) or the judge (in inquisitorial jurisdictions). Most of
the time, direct examination is a nonconfrontational questioning aimed at exposing the
facts and issues of the case. During direct examination in adversarial systems, expert
witnesses present their findings in various ways, such as narrative questions,
hypotheticals, specialized materials, and special exhibits. Experts are commonly asked
to answer narrative questions, which are broad, open-ended questions that allow
experts to present their opinions in their own words with minimal prompting. Fraud
cases, with their divergent paths of activity and intrigue, can require complex
summarizing for the facts to make any sense. Average jurors and some judges have
never considered how someone could manipulate store inventories to drive up the
company’s stock price and then make a profit on the phony surge. The expert witness in
cases dealing with such issues often will begin testimony by recounting the narrative
background of a case, the tests and experiments that were performed during the
investigation, and a summary of the findings based on the witness's professional
expertise.
For example, during a direct examination, the judge or counsel for the party presenting
the expert witness might ask open questions, such as “Could you please tell us about
the background of this case?” or “What procedures did you perform in your
examination?”
In contrast, a cross-examining attorney needs to control the flow of testimony and would
not likely ask an expert witness a narrative question.

A civil action begins when the plaintiff files a pleading with the appropriate court, usually
in the jurisdiction in which the defendant resides or where the claim arose.

Civil cases in civil law jurisdictions vary considerably from common law civil cases. The
most obvious difference is that civil law trials are a continual series of meetings and
written correspondences, rather than a single event, as in common law systems.
Throughout the process, evidence is introduced and evaluated by the court, and
motions are submitted and decided on by the judge. The division between pretrial and
trial stages found in common law civil trials, therefore, does not apply in the typical civil
law setting.

Throughout the trial, the judge evaluates evidence and records it in the trial record. The
record is generally a summary of the evidence, rather than a word-for-word transcript of
the proceedings. At the final hearing, the judge rules on the admissibility and relevance
of the evidence in the record and presents it. This final hearing usually resembles the
trial stage in common law jurisdictions. After presenting the evidence in court, the judge,
jury, or judge panel (depending on the jurisdiction and type of case) rules on the issues
in the case.

There are three basic forms, as distinguished from types, of evidence: testimonial, real,
and demonstrative. Testimonial evidence refers to the oral or written statements made
by witnesses under oath. Real evidence refers to physical objects that played a part in
the issues being litigated. Demonstrative evidence is a tangible item that illustrates
some material proposition (e.g., a map, a chart, or a summary).

Many jurisdictions recognize a distinction between secured and unsecured creditors

during bankruptcy proceedings. A secured creditor is one who has a secured interest in
some of the debtor’s property, meaning that if the debtor defaults on payments to the
creditor, the creditor may possess or liquidate the secured property to satisfy the debt.

In common law jurisdictions, the burden of proof for the civil plaintiff is lower than for the
criminal prosecutor. In most cases, civil plaintiffs must prove their case only by the
preponderance of the evidence, meaning that it is more probable than not that the
defendant is liable. In contrast, criminal prosecutors must prove their case beyond a
reasonable doubt.