The French Huissier as a Model for U.S. Civil Procedure Reform

Huissiers de justice serve multiple roles in the French legal system. One is that of a court officer who compiles dossiers (reports). In that role, the huissier is d’audiencier (literally translated as “hearing” or “assisting”) and works directly for the court system itself.

The huissier’s report remains alien to the American lawyer, who is steeped in notions of procedure and “testimonialism” and in principles of fairness which appear ancient, but are rather modern dissimulations of law and equity’s rich history in the American tradition. An important aspect of most legal processes, the collection of data in preparation for litigation is particularly marked by rhetorical differentiations and historical adaptations reflecting upon (actually, reinforcing) a cross-cultural dissonance that discourages both harmonization and legal experimentation between the two great Western legal cultures (Civil Law and common law).

The apparent discord between the two systems leads courts and commentators routinely to overestimate the disparity between the use of a French-styled investigative magistrate as opposed to the U.S. trial method. Despite the distinct nature of gathering evidence according to the French and U.S. traditions, the huissier is a type of figure found since the origin of the Western legal tradition. Vestiges remain in the United States, although American scholars and practitioners often overlook these manifestations (e.g., trustees and bailiffs). Still, the increasing complexity of commercial litigation, the harmonization of international civil procedure outside the United States, a growing corpus of international privacy standards, and a concern for the competitiveness of US. courts in attracting and inducing business development may cause re-examination of discovery rules, particularly the use of masters and investigative magistrates.

Realizing that the French system is reflected in U.S. law not only may aid in resolution of disputes where both French and US. courts might claim jurisdiction, and where issues of transnational discovery often become key to resolving conflicts of law, but further can function as a paradigm from which particular administrative functions in U.S. courts may be reformed and harmonized with international standards and with principles of efficiency.