The French Constat: Discovering More Efficient Discovery

Abstract

In France and some other Civil Code nations, the constatation (typically termed a constant) is a written report relating facts likely to lead to legal consequences. This report, prepared by a legally trained judicial officer called a huissier, may be either ordered by a judge or requested by a party.

The constant has no American counterpart, but there are immense benefits — savings in both time and expense — to introducing a comparable process in the American legal system. The probativeness of findings through a constat-like mechanism equal what is found in the more adversarial, American pre-trial and trial processes. In combination with presumptions and burdens of proof, the constat has much to offer U.S. judges, masters, litigators, and — of course — the parties themselves. It is, indeed, a French advantage in civil procedure.

In the United States, steep costs in money and manpower are two of the most significant problems affecting the civil justice system. Discovery is a lengthy and expensive process, sometimes causing delays by months or years. Legal professionals, parties, and many others (e.g., business employees) may be ensnared in the adversarial maelstrom. Compared to the United States, the French civil legal system is generally quicker and less expensive, and the use of constants in the United States can provide similar results for its legal system. American adoption of the constat offers a number of benefits, including an improved discovery process.

Many or perhaps all of the statements and documents from numerous sources could be contained in a single document, and the preparer’s costs could be distributed among the parties. An additional benefit would be the constat’s evidentiary weight. It would be difficult to refute in court, and a report prepared by a skilled, legally-trained and highly regulated professional, whether court-appointed or privately chosen, would help reduce excessive or otherwise wasteful discovery. American constants also would deter meritless claims and encourage settlement. Additionally, the constants could be particularly useful in electronic discovery of internet records and, as another example, in building robust yet cost-effective claims or defenses in intellectual property disputes.

The professionally prepared constat-like instrument would be strong evidence in American courts, but procedures could be crafted to ensure that courts could strike, and parties could successfully challenge, an erroneous report. As in the French system, American lawyers could, as one more tool in their arsenal, have an additional or counter constat prepared, if necessary. In the event that a judge accepts the facts contained in a constant, despite contrary evidence, the decision could be reviewable under an abuse-of-discretion standard. These safeguards and the limited procedural scope of the constat as a statement of facts, not something ordinarily encompassing opinion, will help to ensure that its use is compatible with due process. The American legal system can cost less and move more expeditiously if the United States adopts a constat-like document to assist in fact-finding.

Keywords: Discovery, France, Civil Procedure, Constat, Huissier, Judicial Officer, Master, Saisie-Contrefacon, Intellectual Property, Infringement, Insurance Adjuster, Evidence

JEL Classification: K00, K2, K10, K20, K33, K40, K41