Litigation in Poland
Living in New York, I have met many Polish immigrants and become curious about its culture. I have visited the country a few times, and found it to be an interesting mix of Western and Eastern Europe. And so I was very curious to learn more about its legal system. In particular, I wanted to know about how a commercial litigator viewed the conservative government’s recent contentious changes to the judiciary. Thankfully, I was able to speak with Wojciech Kremer, an attorney at his own firm in Krakow, to learn about what litigation is like in Poland.
Why should you continue reading this post about litigation in Poland?
You’re scheduled for an online hearing in Polish court and you need to know if you need to wear your jabot on camera.
You want to see a picture of a very blue court building.
You can’t wait another week before this blog’s next post comes out.
Wojciech Kremer is an attorney at his own firm in Krakow.
Can you tell me about the kinds of disputes you handle in your legal practice?
My law firm provides services primarily to entrepreneurs. We handle disputes involving civil law, including commercial, corporate, and bankruptcy matters.
What type of clients do you generally represent in disputes?
We mainly represent medium-sized and small entrepreneurs, operating in a variety of industries, including trade, services, education, IT, construction, as well as start-ups. In some cases we also represent individual clients.
Besides Microsoft Office, what software do you use in your practice?
We are testing various Polish law firm management software - currently we have not made a final choice.
What books and websites do you use for legal research?
In Poland, the basic source of knowledge for all lawyers are two commercial online systems that contain all regulations, a lot of case law, and a number of commentaries and publications.
The first one is Legalis (https://legalis.pl/, operating under the C.H. Beck publishing house), and the second one is Lex (https://www.lex.pl/,operating under the Wolters Kluwer publishing house).
Of course, I also continue to use literature in paper form.
Image credit: https://en.wikipedia.org/wiki/Judiciary_of_Poland#/media/File:Warszawa_9471.jpg
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
As a rule, postal (paper) correspondence is still the primary means by which attorneys communicate with the court in civil cases. Nevertheless, the proceedings are gradually being computerized and such systems are now in operation:
There is the Common Courts Information Portal, where every attorney should be registered. The Portal records the receipt of all correspondence in particular proceedings, and the courts also provide most of their decisions/orders electronically by this portal. Therefore, it can be said that contacts between courts and attorneys have been computerized, but only as regards court’s documents. Link to the portal: https://portal.krakow.sa.gov.pl/#/login.
In most cases for payment, it is possible to apply for a judgment online. However, if the defendant lodges an objection, the proceedings are discontinued and the case has to be initiated in a standard way. This solution is commonly used by entities pursuing a large number of small claims (e.g. telecommunication operators). Link to the portal: https://www.e-sad.gov.pl/default.aspx.
There are also some other electronic portals to interact with the Polish courts, for:
Establishment of companies - it is possible to establish a company online. Link to the system: https://ekrs.ms.gov.pl/s24/
Register of entrepreneurs - all company register proceedings have to be conducted online via portal: https://prs.ms.gov.pl/
Insolvency and restructuring proceedings – all proceeding have to be conducted online via portal: https://prs.ms.gov.pl/krz
In order to use the above-mentioned systems, it is generally necessary to register an account and understand Polish.
Does Poland have specialized courts that only hear commercial cases?
In Poland, there are no separate courts for commercial cases, but there are separate divisions of courts dealing only with commercial cases (at the level of district courts – in Polish: “sądy rejonowe” and regional courts – in Polish: “sądy okręgowe”). In the courts of appeal (in Polish: “sądy apelacyjne”) and the Supreme Court (in Polish – “Sąd Najwyższy”), commercial cases are heard in civil divisions.
Who decides the facts in a commercial case? Is it a judge or a jury?
Only professional judges rule on commercial cases.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
The length of the lawsuits and other documents depends primarily on the value of the subject matter and the complexity of the case. In simple and standard cases, lawsuits are a few pages long, in complicated and multithreaded ones a few dozen or sometimes even a few hundred pages.
Unfortunately, there are no documents of this kind publicly available online.
Generally speaking, how long does it take for a case to go from complaint to judgment?
It depends on the type of case and the circumstances, such as the need to take an evidence of witness or conduct an expert opinion (e.g. in disputes relating to construction work, an expert opinion is usually required). In simple cases, it can take up a year to obtain a judgment at the first instance; in complex cases, the proceedings can take several years.
Generally speaking, how is evidence exchanged between the parties before trial? Do you get to interview the opposing witnesses before the trial?
There is no formalized institution of exchange of evidence before the trial. In commercial cases, all evidence including all documents and information about witnesses should be indicated in the first statement of the party (the lawsuit itself or the response to the lawsuit). The examination of witnesses called by both parties only takes place at a hearing in the presence of the court and the other party.
If you win, does the other side reimburse your attorneys’ fees?
Yes, as a general rule, the losing party bears the legal costs of the winning party.
However, the court verdict does not award the real costs incurred, but instead the amounts resulting from the regulation of the Minister of Justice, which in most cases is lower than the real costs of the parties.
Are the courts in Poland open to the public? Can ordinary people watch a commercial trial?
Yes, in theory, anyone can come to a court hearing unless the court decides to keep it confidential for special reasons. However, due to the ongoing covid-19 virus pandemic, public access to the courts has been restricted and a lot of commercial hearings are held online.
Do you believe that Polish courts have a particular strength for resolving commercial disputes? How about a weakness? What are they?
In my opinion, Polish courts have the appropriate competence to resolve commercial disputes.
Unfortunately, a frequent problem is the excessive length of time taken to reach a verdict, which can have a very serious impact on the economic situation of the entity involved in the proceedings.
In the past five years, there have been numerous publicized efforts to change the Polish judiciary. How have those efforts changed your work?
The structural changes introduced in the Polish judiciary system in recent years should mostly be assessed negatively. Contrary to what was announced, they have led to a slowing down of the examination of cases instead of speeding them up, and they also raise a number of reasonable doubts as to their compatibility with the law and the Constitution. So far, the changes have had little impact on my day-to-day work.
How often do you go to the courthouse?
I used to go to court several times a month, but currently, because some of the hearings are conducted online, I am in court usually twice a month.
When you are there, do you need to wear a special robe or wig?
During each court session (including online hearings), I have to wear a black toga (a kind of special robe) with a blue jabot.
Each legal profession appears in court in black togas, differentiated by the colour of the jabot (judges have violet, public prosecutors red and advocates green).
It is worth adding that in Poland there is an unusual division between attorneys-at-law (in Polish: “radcowie prawni”) and advocates (in Polish: “adwokaci”). Currently, both professions have identical competences, including representing clients before all the courts, a path to the professions is similar and it is easy to change the profession between them. The reasons of this division have mainly historical character. From the client's point of view, it does not matter whether he or she cooperates with an attorney-at-law or with an advocate.