打官司的那些事——激发法官仲裁员的正义感,增加胜诉机率
Stimulating the Judge
2017/2/22 14:30:24 点击率[100] 评论[0]
【法宝引证码】
    【学科类别】律师
    【出处】邓永泉律师的博客
    【写作时间】2014年
    【中文关键字】法官;仲裁员;正义
    【全文】

      PREFACE: As a lawyer, I have been to court for many years and have accumulated experience and lessons. With more and more experience and fewer and fewer lessons, I think I can write something that can be entitled as “Successful Experience” rather than “Successful Lessons”.
     
      Chapter Two Stimulating the Judge's Sense of Justice to Increase the Chances of Winning
     
      In the 30 years of frenzied pursuit of money, most people think that there has been no sense of justice and no compassion in China and everyone puts their own material interests first. However, in the cases I have represented, many judges and arbitrators have shown a sense of justice and compassion, and they consciously or unconsciously want to find out who is more reasonable. This will largely affect how they exercise discretion in a case. Objectively, the sense of justice and compassion is also a tool for judges and arbitrators to form a judgment. Any commercial transaction cannot be completely recorded, and violations are even less recorded. Although the PRC Civil Procedure Law provides for witness testimony, expert opinion and records of inquests, related people rarely appear in court to be cross-examined and the majority of cases rely on documentary evidence (e.g. contracts signed by the parties, correspondence, etc.)。 Documentary evidence alone cannot restore the truth. Since witnesses who have personal experience cannot appear in court for cross-examination, judges and arbitrators can only weave the intermittent documentary evidence into a complete story according to their subjective understanding that includes not only their experience and common sense but also their sense of justice and compassion. Litigation and arbitration have almost the same hearing process. The first step is that the plaintiff or applicant states what they are appearing in court in relation to and then the defendant or respondent argues and refutes their allegations. Basically, this is the recitation of the pleadings (litigation) or the application (arbitration) by the parties or their agents. The parties or their agents are often embarrassed at this time because they do not know whether they should recite the full text or only a part of it. Recite the full text? But the judge or arbitrator may have read it. Recite a part? The judge or arbitrator may not understand all the spirit. It is easy to recite short pleadings or applications but not for medium-length ones. If a few long pleadings or applications are to be recited, there will be all sorts of strange scenarios that would be a trial scene. Some people repeat what the pleadings or applications say as if there is no one else present; some feel that they are boring themselves but insist on reading; and so forth. What about the judges and arbitrators? I dare say that less and less judges and arbitrators seriously follow the recitation without missing a word. In many cases, the parties' lawyers recite word by word at the beginning with a posture of going through the full text, but little by little they run out of steam and read more and more simply, changing into partial recitation, and hastily end. Some considerate judges and arbitrators would enjoin the parties or their agents at the beginning to “tell succinctly”, by which they mean it is inappropriate not to let you read but it is really unnecessary to let you read so you speak succinctly and it is all right for everyone. Some judges and arbitrators would even not let the parties recite first but instead tell them say what has happened first. Indeed there is no need to recite the full text. The lawyers should view the judges or arbitrators as an audience and themselves as actors. You sing not well and the audience can certainly be absent-minded. In fact, the parties' statements are not a waste of time and the judges and arbitrators all want to figure out the basic background of the case in this stage, whether or not directly related to judgments, because on this stage, the judges and arbitrators would not feel that they have the ability to determine what is related or unrelated. Therefore, the lawyers should describe the background of the case as clearly as possible and methodically. Take the equipment sales contract as an example. The lawyers should at least make clear the following: (1) Whether the contracting parties are the parties of the case or not; (2) The object of the contract; (3) Whether the sale is of specifications or designs; (4) The unit price and total price; (5) The payment methods; (6) The quality standards; (7) The place of delivery and the party who is responsible for transporting and bearing the freight; (8) Whether there is partial delivery or package delivery; (9) The point in time of risk transfer; (10) Whether the seller is responsible for the installation or not; (11) The party who is responsible for civil engineering, if any, involved in the installation; and (12) The dispute between the parties and the reasons therefore, and the claims of the respective parties. To make these things clear, the lawyers must do their homework in advance and make a list of questions according to the case details. The parties should cooperate but not think that the things are very clear and the questions are unnecessary. After all, the judges or arbitrators were not engaged in these things and would not know what happened if you do not tell them. You must tell the things clearly if you want them to rule in your favour; otherwise, how can they do that? It is the turn of the judges or arbitrators to play after the parties' recitation of the pleadings or applications. Typically, they would not let the parties cross-examine right away but begin to ask the parties mainly about whether there is anything that they have not made clear or whether there are contradictory things. Then the parties would tell their own stories. The judges or arbitrators would listen and ask and sometimes let the parties make a few arguments, and they carefully observe the parties' reactions at the side. After listening to the parties' stories, the judges or arbitrators have their own account of the case. Then they need to confirm it, so cross-examination begins between the parties and the account in the judges' or arbitrators' mind begins to compete with the parties' evidence?- The judges' or arbitrators' sense of justice and compassion would usually form before the end of the recitation by the parties or would even sprout when they see the pleadings or applications. Therefore, the parties must pay attention to the drafting of the pleadings and applications and the representations of the case. One of the points here is to establish a just image for themselves legally, advantageously and sparingly in order to win the sympathy of the judges or arbitrators as early as possible. It would be too late to do this at the cross-examination stage, when the judges or arbitrator may find out that justice should be on your side during cross-examination and that they should sympathize with you, but you have made them waste their emotion. This is different from acting and you should never attempt to surprise them; otherwise, the judges or arbitrators would vent their anger on you and continue their mistake. In short, willingness is priceless. Lawyers should try to stimulate the sense of justice of judges and arbitrators and win their compassion so that they are willing to rule in your favour. With this willingness, judges and arbitrators would consciously or unconsciously favour you when exercising discretion. Thus, things would be much easier……

    【作者简介】
    邓永泉,大成律师事务所高级合伙人、北京仲裁委员会仲裁员、中欧仲裁委员会仲裁员,《商法》(China Business Law Journal)“法律精英100强”(China's Top100 Lawyers)。

    本网站文章仅代表作者个人观点,不代表本网站的观点与看法。
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