Forensic Accountant for Business Litigation in Germany

You need to understand German company accounts?

In order to win a business or corporate law suit, understanding the numbers is often equally important as knowing the legal aspects of the case. The same is true if you plan to acquire a German business. Thus, the German-British litigation lawyers as well as the M&A experts at Graf & Partners (www.grafegal.com) regularly team up with German forensic accountant Hermann Werle.

Hermann obtained his degree in business administration from Regensburg UAS in 1982. Throughout his 25 year career he then worked as inhouse accountant, head of controlling, CFO and company director / CEO for renowned German and international companies and was involved in a number of mergers including Mallinckrodt, Sherwood Davis & Geck and U.S.-Surgical. Thus, Hermann gained a wealth of professional experience in various industrial sectors. While his core competence is finance, he also has practical experience in HR, IT, purchasing, warehousing and distribution.

In 2014, Hermann set up his own financial consultancy firm and provides professional advice to German and international firms, often in collaboration with the German and British litigation lawyers of Graf & Partners. His main focus is on the areas:

  • forensic accounting in cross-border litigation cases and
  • German-British and German-American merger & acquisition deals (financial due diligence)

We have worked with Hermann Werle on dozens of business litigation cases as well as international mergers. Our German as well as our international clients have always been extremely impressed by his skills, in particular his ability to break down and explain the most complex situations to non-accountants, i.e. to litigation lawyers and judges.

More information on litigation and legal fees in Germany is available in these posts:

For more on German business and corporate law see these posts:

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Experts on German-British and German-American Legal Matters

Since 2003, the German business and corporate law firm Graf Partners LLP specialises in British-German and US-German legal cases. Our German business and corporate lawyers are native speaker level fluent in English, have many years of practical experience with clients from Britiain and the USA and are part of a well established network of law, tax and accounting firms.

Managing partner Bernhard Schmeilzl was admitted as German Rechtsanwalt (attorney at law) to the Munich Bar in 2001 and specialises in international cases ever since, with a focus on German-American and German-English commercial, corporate and also probate cases. In addition to obtaining his German legal exams with distinction, he also graduated from the English University of Leicester where he obtained his Master of Laws degree in EU Commercial Law in 2003.

In 2014, Graf Partners LLP has set up the international litigation department GP Chambers which focuses on providing professional litigation services to British and US-American clients, both on a commercial and a private client level. The Graf Partners litigation lawyers regularly appear before German law Courts throughout the country and provide specialist legal advice, support and advocacy services in all commercial and civil law matters, ranging from contract disputes, corporate litigation and employment, to damage claims, divorces and contentious probate. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please call +49 941 463 7070.

Pursuing Legal Action in Germany?

You found the German law firm perfectly equipped to address your legal needs in Germany

Since 2003, German law firm Graf & Partners specialises in providing legal advice and litigation services to British and American clients. The majority of our clients come from Britain, the USA or other English speaking countries and are in need of pursuing a legal matter in Germany. If you need a competent and trustworthy attorney anywhere in Germany, our experienced contract lawyers and bilingual litigators will be happy to assist.

The firm’s managing partner Bernhard Schmeilzl and several other lawyers in our litigation team have studied and worked in the USA and/or Britain. As a result, Graft & Partners have established a unique and impressive international legal practice, which focuses specifically on British-German and German-American legal cases and issues. Our Anglo-German lawyer team is headed by British and Canadian citizen Elissa Jelowicki, a qualified English solicitor, and Registered European Lawyer, admitted to the Munich Bar Association. Therefore, foreign clients and instructing lawyers from the UK and America are able to discuss their specific case with a native English speaker, who also knows the English legal system.

Our German and British litigation lawyers appear before German law Courts throughout the country and are also experienced in (Commercial) Arbitration and Alternative Dispute Resolution. We provide specialist legal advice, support and forensic services in all commercial and civil law matters, ranging from contract disputes, corporate litigation and employment, to damage claims and contentious probate. In addition, our family law experts deal with international divorces and child custody matters. In relation to other legal areas, e.g. criminal law or tax, we will be happy to recommend qualified German lawyers from other chambers, who are also fluent in English.

On a regular basis, we speak on German-American and British-German legal issues at lawyer conventions and at in-house events of international companies and law firms. See here for some of the topics we have spoken on recently:

More information on litigation and legal fees in Germany is available in these posts:

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Call the experts on German-British and German-American legal matters

Since 2003, the German law firm Graf Partners LLP with its headquarters in Munich specialises in British-German and US-German legal cases. Our German lawyers are fluent in English, have many years of practical experience with clients from Britiain and the USA and are part of a well established network of law, tax and accounting firms.

Bernhard Schmeilzl_crop1Managing partner Bernhard Schmeilzl was admitted as German Rechtsanwalt (attorney at law) to the Munich Bar in 2001 and specialises in international cases ever since, especially German-American and German-English commercial and probate cases. In addition to obtaining his German legal exams with distinction, he also graduated from the English University of Leicester where he obtained his Master of Laws degree in EU Commercial Law in 2003. 

In 2014, Graf Partners LLP has set up the international litigation department GP Chambers which focuses on providing professional litigation services to British and US-American clients, both on a commercial and a private client level. The Graf Partners litigation lawyers regularly appear before German law Courts throughout the country and provide specialist legal advice, support and advocacy services in all commercial and civil law matters, ranging from contract disputes, corporate litigation and employment, to damage claims, divorces and contentious probate. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please call +49 941 463 7070.

Putting Someone on Speaker Phone without telling them?

In their piece about Speakerphone Etiquette, The Huffington Post recommends:

“Always ask the person on the other end of the line if he or she minds being put on the speakerphone. Some people find them annoying and invasive.”

This is excellent advice, especially if you speak to Germans on the phone. Why so? Because a German might not only be annoyed to find out that somehas has secretly listened in on the phone conversation. Instead, he or she might even press criminal charges, because under German law, putting someone on speaker phone (without telling them first and getting their consent) may consitute a criminal offence. Section 201 German Criminal Code protects the privacy of the non-publicly spoken word. Taping a phone call without the other party’s consent (which can easily be done with any modern smart phone nowadays) is even worse.

But even if such eavesdropping is not found to be a crime under certain circumstances, both putting someone on speakerphone without telling them first and listening in on such a phone conversation does constitute a violation of German civil laws (tort) and data protection regulations. As a consequence, someone who has secretly listened in on a phone conversation, is not allowed to appear as a witness on what he or she has heard in a German court of law. civil lawsuit. Thus, the (bad) habit of having a co-worker or one’s spouse covertly listen in on a phoen call to “have a witness for what the other party has said” is not only rude, but also dangerous and useless in regards to creating evidence. Furthermore, you can end up with a costly cease and desist order.

There are exceptional circumstances when putting someone on speaker without disclosing this fact to the other party is allowed under German law, for example when there is reason to believe that the other party may insult or threaten the caller, speak about a crime etc. Or when the other party knows from previous calls that speaker phones are typically used and the caller has never objected to this in the past.

For more information about German law, in particular civil litigation in Germany see these posts:

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The law firm Graf & Partners was established in 2003 and has many years of experience with British-German and US-German legal matters.The Anglo-German litigation lawyer team of GP Chambers is well equipped to advise and represent clients from the UK and other English speaking countries. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please call +49 941 463 7070 in order to contact German lawyer Bernhard Schmeilzl, LL.M. (Leicester), managing partner and head of the litigation department. Bernhard is also frequently asked by British and US Courts and Tribunals or by legal counsels to provide expert reports and legal opinions on German law.

English Speaking German Lawyers and Litigators based in Munich

Experienced German Legal Counsel for British and American Clients

Since 2003, the German law firm Graf Partners LLP with its headquarters in Munich specialises in British-German and US-German legal cases. Not only are the German lawyers at GP fluent in the English language, but they have many years of practical experience gained by working for commercial and private clients from Britain and the USA. From conveyancing of German property, drafting international agreements, representing foreign clients in German courtrooms and preparing expert reports and legal opinions on German law for British and American courts. We know what English and American clients expect from their German legal counsel. We do not simply explain the German law but we focus on the – sometimes very significant – differences, especially when it comes to German civil procedure rules.

Bernhard Schmeilzl_crop1Managing partner Bernhard Schmeilzl was admitted as German Rechtsanwalt (attorney at law) to the Munich Bar in 2001 and specialises in international cases ever since, especially German-American and German-English commercial and probate cases. In addition to obtaining his German legal exams with distinction, he also graduated from the English University of Leicester where he obtained his Master of Laws degree in EU Commercial Law in 2003. But do not mistake Bernhard for a German lawyer who focuses merely on German-British legal matters.

While Bernhard is well acquainted with the ways of English solicitors and barristers and their respective ways to go about a case, he is even better equipped to team up with United States attorneys at law. And this is not just from from watching the TV series Suits or Better call Saul (which he does), for that matter. Bernhard has lived, studied, coached baseball and worked in the USA on a number of occasions. His history of extended stays in the United States goes back as far as 1990 and 1993, when George Bush (the father) was President. Bernhard can therefore rely on a network of friends and business partners across the USA, especially in New York and New Jersey as well as in California.

In 2014, Graf Partners LLP has set up the international litigation department GP Chambers which focuses on providing professional litigation services to British and US-American clients, both on a commercial and a private client level. The Graf Partners litigation lawyers regularly appear before German law Courts throughout the country and provide specialist legal advice, support and advocacy services in all commercial and civil law matters, ranging from contract disputes, corporate litigation and employment, to damage claims, divorces and contentious probate.

So, if you need a German lawyer who did not just have English in school, but who really speaks your language and knows where you are coming from, contact the experts on German-American and German-British law:

gp-logoa German limited liability partnership of German lawyers admitted to the Munich Bar Association (Rechtsanwaltskammer) with the right to represent clients in all courts of law throughout Germany, registered with the District Court Munich, Partnership Register Nr. 438, represented by its managing partners Bernhard Schmeilzl and Katrin Groll.

Our central switchboard number in Germany is: +49 (0) 941 463 7070

For more information about civil litigation in Germany see these posts:

For more information on cross border probate matters and international will preparation see the below posts by the international succession law experts of Graf & Partners LLP:

More information on buying property in Germany, the German Land Registry, the German conveyancing process and the rights and duties of tenants and landlords in Germany is available in these posts:

No Win No Fee Agreements are Void in Germany

No win no fee agreements (contingency fees) between a client and lawyer are prohibited under German law. This has always been the tradition of German law (more here). The reasoning behind this rule is that German lawyers shall not undercut each other, because this would lead to poorly financed law offices providing very poor services to their clients. Also, German lawyers shall not be under the influence of undue incentives, i.e. trying to win a case no matter what including tampering with evidence, influencing witnesses etc. Continue reading

You keep your Eyes on the Ball…

… while we’ll keep ours on the law for you

The German-British Sport Law Experts of Graf & Partners specialise in drafting and negotiating athletics agreements, sponsoring and endorsement deals, sports related litigation and sports event agreements. We consult sports federations, professional sports clubs, major event sponsors and individual professional athletes from many different sports, including football (soccer), ice hockey, golf, baseball, motor sports and winter sports. Since, nowadays, sports law is essentially business law, our sports lawyer team includes experienced corporate, contract and intellectual property lawyers qualified in Germany and England. Head of the sports law department is Bernhard Schmeilzl, who is an international business lawyer called to the bar in 2001 and who has 30 years of experience as a sports manager, arbitrator and coach. He is currently advising English football teams on how to secure unrestricted access to EU football players in spite of the recent Brexit decision.

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The law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German business and corporate matters, including the representation of professional sports organisations and professional athletes. If you need legal advice or representation do not hesitate to contact our German-British law firm by calling +49 941 463 7070

Expert Reports on German Law

As a full service German and English law firm, established in 2003, we are often asked to provide English Law Firms with an expert report based on issues of German Law.

Solicitor_SchmeilzlBernhard Schmeilzl, a bilingual Lawyer who qualified in 2001 (admitted to the Munich Bar) and is able to provide expert reports to be used in English litigation and arbitration cases based on various issues of German law, whether it be Civil, Commercial or Criminal law, including procedural aspects . Not only does he have a very good grasp of the English Civil Procedure Rules on expert reports, but he also has a vast experience of working closely with Solicitors and Barristers within England. Bernhard has prepared reports for all types of law firms in England, from Magic Circle firms to regional firms, including the following areas:

  • Corporate and commercial law disputes between British and German businesses;
  • Contentious probate matters around the validity of German wills;
  • Accidents involving British citizens in Germany (personal injury, tort); and
  • Medical malpractice cases involving German GP’s and hospitals

In case you need an expert report from a German Solicitor please do not hesitate to call us on +49 (0) 463 7070. More information on litigation and legal fees in Germany is available in these posts:

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The law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German business and corporate matters, including the representation of clients in M&A transactions. If you wish us to advise or represent you please call German business and litigation lawyer Bernhard Schmeilzl, LL.M. (Leicester) or Munich based English solicitor Elissa Jelowicki on +49 941 463 7070.

German Law of Torts: Are Accident Victims entitled to a New House?

Can a disabled injured person claim for the predicted cost of accommodation or only the actual costs after they have been incurred?

Under German law, a person who is impaired by an accident is entitled to adequate housing. The extent and amount necessary for adequate housing depends on what an impaired person would reasonably require. This can be determined by an expert, who will be appointed by a German court.

However, a difficult and strongly debated question under German law of torts is whether the injured person may only claim compensation for costs he or she has actually incurred (reimbursement approach) or whether the injured person is entitled to request a lump sum payment for necessary measures, even if actual costs have not (yet) been incurred, based on sec. 843 (3) German Civil Code (for details see German Supreme Court ruling of 19 May 1981, published in NJW 1982, p. 575; also see Münchner Kommentar zum BGB, Band 5, Auflage 6, § 842, Rd. 66 and Rd. 77).

Those in favour of the “lump sum approach” argue that German law does accept the concept of so called “fiktive Pflegekosten” (fictitious costs for home help), i.e. the market value of such home help (usually between EUR 7 and EUR 10 per hour, depending on the cost of living in the area where the Claimant lives) must be paid by the injurer regardless of whether the injured person actually hires paid help or whether a relative or friend provides such help without remuneration. Thus, costs which are objectively necessary for modifying an existing or buying another house must also be compensated by the wrongdoer, regardless of whether and when the impaired person actually incurs these costs.

The mainstream opinion amongst German litigation lawyers seems to be, however, that under German law, notional costs cannot be claimed. Consequently, a Claimant can only request reimbursement of the amounts he or she has actually spent on housing (repair, modification, new purchase etc). This view is supported by legal literature (e.g. Gerhard Küppersbusch “Ersatzansprüche bei Personenschaden” [“Claims in the case of personal injury”] 10th edition 2010) as well as by case law (Higher Regional Court Hamm, ruling published in VersR 2003, 780).

So, what actual costs can an impaired person claim under German law of torts? Here are some examples:

  • If a new apartment is rented, which better suits the individual’s needs, then the additional rental costs must be reimbursed. It may get difficult, however, if this new apartment has additional advantages (e.g. more rooms for other family members). Then, there may be a reduction.
  • In case an existing house is remodelled to meet the special requirements of an impaired person, the reasonable and adequate remodelling costs must be reimbursed. The above re-additional advantages does apply here as well: modification of a house or flat usually leads to an increased value of the same, which then again must be set off (this was also discussed in the Supreme Court ruling of 1981)
  • In case a new house is built or another house is bought, a German court would verify whether the impaired person has obeyed his duty to keep the damage at a minimum (obligation to mitigate losses), i.e. if it would have been less cost-intensive to rent an adequate house, especially since leasing an apartment or even a house is much more common in Germany than it is in the UK. However, even if the Court is convinced that buying or building another house was necessary, then it is very difficult to calculate the exact amount which must be compensated by the injurer, because this new house will often have a higher value. This extra value of the new house compared to the previous house is not recoverable and must be deducted from the claim. Thus, one must differentiate between the increase of value and the necessary and reasonable costs caused by the accident. These are difficult issues which usually involve a number of experts.

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The law firm Graf & Partners was established in 2003 and has many years of experience with British-German and US-German legal matters.The Anglo-German litigation lawyer team of GP Chambers is well equipped to advise and represent clients from the UK and other English speaking countries. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please contact German lawyer Bernhard Schmeilzl, LL.M. (Leicester), managing partner and head of the litigation department. Bernhard is also frequently asked by British and US Courts and Tribunals or by legal counsels to provide expert reports and legal opinions on German law.

Standard of Proof in German Civil Litigation

Is the Standard of Proof any different under German Law than English Law?

The standard of proof in German civil litigation is defined in section 286 German Civil Procedure Rules (Zivilprozessordnung):

Section 286: Evaluation of evidence at the court’s discretion and conviction

(1) The court is to decide, at its discretion and conviction, and taking account of the entire content of the hearings and the results obtained by evidence being taken, if any, whether an allegation as to fact is to be deemed true or untrue. The judgment is to set out the reasons informing the conviction of the judges.

(2) The court shall be bound to statutory rules of evidence only in the cases designated in the present Code.

Thus, a certain fact is (only) proven if the judge is personally fully convinced that this certain fact is indeed true. The German word for this is “Vollbeweis”, i.e. full conviction. This is a somewhat higher threshold than the concept of “the balance of probabilities” which is used in common law systems.

However, please note that section 287 German Civil Procedure Rules reduces this high standard of proof threshold (Vollbeweis) for the questions of whether a damage has occurred and what the exact amount of compensation shall be:

Section 287: Investigation and determination of damages; amount of the claim

(1) Should the issue of whether or not damages have occurred, and the amount of the damage or of the equivalent in money to be reimbursed, be in dispute among the parties, the court shall rule on this issue at its discretion and conviction, based on its evaluation of all circumstances. The court may decide at its discretion whether or not – and if so, in which scope – any taking of evidence should be ordered as applied for, or whether or not any experts should be involved to prepare a report. The court may examine the party tendering evidence on the damage or the equivalent in money thereof; the stipulations of section 452 (1), first sentence, subsections (2) to (4) shall apply mutatis mutandis.

(2) In the event of pecuniary disputes, the stipulations of subsection (1), sentences 1 and 2, shall apply mutatis mutandis also to other cases, insofar as the amount of a claim is in dispute among the parties and to the extent the full and complete clarification of all circumstances authoritative in this regard entails difficulties that are disproportionate to the significance of the disputed portion of the claim.

Thus, one must take a close look at what exactly is in dispute between the parties. With regard to the question of damages and their extent, German Courts use a standard of proof concept which is very similar, if not identical with the “balance of probabilities” concept. However, section 287 CPR does, for example, not apply to the question of whether the Defendant has injured the Claimant at all. For this, as for many other questions, the basic rule of “full conviction” (Vollbeweis) remains applicable.

More information on litigation and legal fees in Germany is available in these posts:

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The law firm Graf & Partners was established in 2003 and has many years of experience with British-German and US-German legal matters.The Anglo-German litigation lawyer team of GP Chambers is well equipped to advise and represent clients from the UK and other English speaking countries. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please call +49 941 463 7070 in order to contact German lawyer Bernhard Schmeilzl, LL.M. (Leicester), managing partner and head of the litigation department. Bernhard is also frequently asked by British and US Courts and Tribunals or by legal counsels to provide expert reports and legal opinions on German law.

Does German Law of Torts know the Egg Shell Skull Rule?

Under English law of torts, a claimant is entitled to pursue a claim for injuries that have been sustained as a result of the negligence, even if their response to the damage they suffered was unusual or not predictable (e.g. due to brittle bone disease, haemophilia or a nervous disease of the injured person). This principle is known as the “egg shell skull” rule and means that the wrongdoer takes the claimant in the position they find him or her.

Does this concept also exist under German law of torts? Yes it does. The equivalent of the “egg shell skull” principle under German law is called “Schadensgeneigtheit” or “besondere Schadensanfälligkeit des Geschädigten” and is usually referred to and explained with statements like “the wrongdoer must take the injured person as he/she is” or “the injurer cannot demand to be treated as if he had injured a healthy and robust person.” For details see the leading German commentary to the Civil Code: Münchner Kommentar zum Bürgerlichen Gesetzbuch, 7. Auflage 2016, Band 2, page 348; § 249, Rd. 138 which refers to the relevant case law of the German Supreme Court and other German Courts of Law.

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The law firm Graf & Partners was established in 2003 and has many years of experience with British-German and US-German legal matters.The Anglo-German litigation lawyer team of GP Chambers is well equipped to advise and represent clients from the UK and other English speaking countries. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please contact German lawyer Bernhard Schmeilzl, LL.M. (Leicester), managing partner and head of the litigation department. Bernhard is also frequently asked by British and US Courts and Tribunals or by legal counsels to provide expert reports and legal opinions on German law.