Litigation in Spain
In my job, I get to work with lawyers from around the world. Sometimes a client from the United States needs help from a court abroad, which requires me to work with foreign counsel. And sometimes a client abroad needs help in the United States, and so lawyers reach out to me and my firm.
When I speak with lawyers from other countries, I often learn about some interesting differences between litigation abroad and litigation in the United States. In this post, I’d like to share some things I learned about litigation in Spain from an interview with Marta Vilardell Oliveras, an attorney from Barcelona.
Why should you continue to read this interview with Ms. Oliveras about litigation in Spain?
You want to do business in Spain, but would like to learn more about the legal system there first
You’re curious about what aspects of the American legal system are unique to America
You want to move to Spain, but you are afraid of getting called for jury duty in a commercial dispute
Ms. Oliveras practices law at Vilardell Abogados in Barcelona. This interview has been lightly edited.
Background
What type of disputes do you handle?
I handle all kinds of subjects, but the commercial disputes I see the most are claims for non-payment and breaches of contracts.
Is there a particular type of client you represent often?
My clients are usually companies or individual entrepreneurs, as well as small and medium sized enterprises. Some are regular clients, since I also serve companies as their legal adviser, in addition to representing them in disputes.
Besides Microsoft Office, what software do you use in your practice?
None. Only Microsoft Office.
What books or websites do you use for legal research?
I research mostly in books
But I also use websites. In general I use the following ones:
https://elderecho.com: This is a legal service website that costs nearly 1,000 euros per year to use. It has a huge database of doctrines and jurisprudence. It also has all of the updated legal codes and comparisons with articles that have been modified so users can distinguish current laws from repealed laws.
http://noticias.juridicas.com: I use this website to check the content of laws and codes.
https://www.iberley.es: This is another legal website that provides a quite complete summary of the law. It is useful for initial overviews of legal subjects.
Filing Complaints
Generally speaking, how much time do parties have to respond to complaints in disputes?
After we directly file a procedural claim, the court takes approximately one month to process it. Then the opposing party normally has 20 days to respond.
According to one article, the average claim takes nearly two years from start to finish. In my experience it takes about six months to a year for a case to proceed through trial. Then the appeal may take another year or two. And executing the judgment may take another year, depending on the judgment debtor.
When you file the procedural claim in Spain, about how many pages is the document you file with the court that describes the claim?
There is no specific number of pages as it depends on the complexity of each issue.
In general, there are two types of procedures. One is called “Monitorio,” which is a quick summary procedure with less paperwork. It applies to claims for up to 6,000 euros. Monitorio complaints are normally between 1-4 pages.
For ordinary procedures, which are compulsory for amounts greater than 6,000 euros, the demand usually has between 6-50 pages, depending on the complexity of the case. The process for these procedures takes longer and is more expensive because it has more procedural guarantees.
How often do you go to court?
I usually go 1-3 times a week. But it depends on my monthly activity. Sometimes there are weeks that I don't have to go. Most of my work is on written documents.
Do you need to wear a robe in court?
Yes. I dress in a toga with the stamp of the law college of Barcelona. Wearing this dress is required; you can not enter the courtroom without it. But we don't wear hats in court anymore.
But we don’t wear hats in court anymore.
Who decides the facts in your disputes? Is it a judge or a jury?
There is only a jury in certain criminal cases. In the other courts, judges decide the facts. This is because the Spanish system believes that it is fairer for experts to decide issues. There is no jury tradition here, nor has it been well established.
Is there a specialized commercial court for commercial disputes in Barcelona?
There are special commercial law courts (“juzgados de lo mercantil”), but the judicial procedure in those courts is more or less the same as that of civil law, with some special rules.
If you win a commercial dispute, does the other side reimburse your attorneys’ fees?
Yes, unless the judge says otherwise or under certain exceptions (such as cases with family law issues).
Are trials public in Spain? Can ordinary people come and watch trials?
Yes, they are public. But you can ask that they be under “summary secrecy,” but only for certain cases.
However here in Spain there is no culture of going to see the trials, and the judges are not very receptive to having people in the courtroom. Judges believe that spectators may distract them from their work. Therefore, although it is not necessary by law, it is a custom that you must ask for permission from the judge in advance to observe.
Generally speaking, how is evidence exchanged between the parties? Do you get to interview the opposing witnesses before trial?
In general, parties have to provide their own evidence to support their claim or responding to others’ claims.
Only in criminal proceedings is there a preliminary phase called “preliminary proceedings,” where the parties can ask the court for information from the opposing side. But in commercial disputes, there is no prior questioning of witnesses and you must go to trial with the evidence you already have. This makes trial very difficult because some evidence cannot be obtained in advance, due to the data protection law.
There is an article in the law that allows you to request certain evidence in advance of trial, but not witness testimony. This law is subject to various requirements and if a demand for evidence is not timely presented, the requesting party bears the cost of the production. This law is not used very often. Normally you file claims with the evidence and witnesses you have, wait for the other party to present their evidence and witnesses, and if there is anything that you have not been able to obtain and is essential for the resolution of the trial, you ask the judge in the trial phase.
During the trial phase, you can ask the judge to order the production of more evidence and testimony, even if they are subject to the data protection law or held by the other party.
Do commercial disputes in Spain have trials with witnesses?
Yes. At trial, all of the parties question witnesses. Sometimes the judge also questions them.
Do you believe that Spanish courts have particular strengths or weaknesses for resolving commercial disputes?
The opening of special commercial courts was a great advance, since its judges have more knowledge of the relevant subject matter.
But the commercial courts are still not specialized by the type of dispute. And since the procedure in those courts is the same as the general courts, they are not particularly fast or better structured for commercial matters. This is why large entrepreneurs tend to opt for mediation, which can be agreed upon in their contracts.