Collaborazione fra giudice e avvocati nella definizione della controversia - Inadeguatezza ed esigenze di riforme in un raffronto comparato

This PhD thesis examines the theme of the procedural collaboration between the judge and the parties/lawyers in the context of civil proceedings. The term "procedural collaboration" refers here to a behavioural rule that should be respected in order to manage the dispute efficiently. In this sense, collaboration finds in the dialogue between the parties and the judge the essential instrument for the implementation of a communion of work directed to the search for the truth. Chapter I offers an overview on the notion of “collaboration” and explains the research methodology as essentially comparative. Chapter II focuses on the U.S. legal system, where, especially since the 1980s, there has been a constant debate about the need to induce the lawyers to behave more collaboratively, especially during the discovery phase. The aim of this chapter is to analyze the way through which the US legal system, despite a traditionally adversarial background, has made (or at least attempted to make) cooperation one of the main parameters of the action of the judge and the parties. Chapter III concentrates on the French legal system, where particular attention is paid to the problem of procedural cooperation. Indeed, in the context of this legal culture, collaboration constitutes, at least since the 1975 reform, an effective “principe directeur” of the civil process. And it is on the basis of such a cultural approach that seems largely explainable the progressive spread in France of the instrument of the procedural agreement as a useful tool for an efficient management of the dispute (so-called contractualisation de la procédure). As will be shown in the final part of the chapter, that of the procedural agreement, especially in its declination of a trilateral agreement between the judge and the parties, constitutes an institution which, in the light of the results obtained in the French system, should get more attention also from our legal system. In the IV and final Chapter, the results of the comparative survey are taken into account in order to arrive at assessments of the greater or lesser efficiency of the approaches adopted in the legal systems in question. All this in the perspective of configuring hypothetical suggestions also for our system, which is still marked by the absence of a serious debate around the notion of procedural collaboration and, consequently, by an almost congenital inadequacy to the realization of cooperation rules for the judge and the parties.