Providing Judges and Arbitrators with an Operating Programme They Are Willing to Accept So That They Are More Willing to Rule in Your Favor
发布时间：2017/2/23 10:57:26 作者：邓永泉 点击率 评论
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 Three: Providing Judges and Arbitrators with an Operating Programme They Are Willing to Accept So That They Are More Willing to Rule in Your Favor
Many parties present a righteous speech to the judges or arbitrators when appearing in court. Poor lawyers only speak to assist the parties and somewhat better lawyers are aware of the need to persuade the lawyers or arbitrators to rule in favour of their client. However, judges and arbitrators are not to be persuaded; they want to know how to decide that you should win. In other words, lawyers should give the judges or arbitrators a specific programme for them to follow to enable their client to win, which is the “operability to decide in my favour”. From my experience, even if the judges or arbitrators want you to win, they might shrink back from difficulties if it is inoperable or troublesome to judge you to win （for example, they need to do in-depth analysis and demonstration or to write a long judgment or award）。 You know, judges and arbitrators are usually very busy and you cannot expect them to dig out something in your favour from a lot of files. What's more, if they do as you expect, they would seem tendentious. They would not act like that. As an arbitrator, I have this experience. While the party's lawyer speaks endlessly without saying the key words, the arbitrators are anxious for him. Therefore, lawyers should view themselves as judges' clerks or arbitrators' case secretaries and give them a complete and reasonable operating programme to rule in your client's favour, greatly reducing their workload. Some parties feel that they are perfectly justified to win and the case is simple with irrefutable evidence. However, litigation is like playing cards; even if you have the best cards, you cannot show your cards and say you can definitely win; everyone has to continue to play. It is a common thing to lose with good cards. Therefore, the parties should cooperate with their lawyers to develop a programme to maximize the protection of your interests that lawyers or arbitrators are willing to accept. Developing the programme is like cooking a small fish. You should make judges or arbitrators feel at ease and feel that your operating programme is a matter of course so that they would have your programme come in handy when deciding the case. At this point, I would particularly point out a misunderstanding that the plaintiff and the applicant are often caught up in. When pondering litigation and arbitration claims （that is, how much money is claimed against the other party）， the plaintiff and applicant often have a mentality of selling things at the vegetable market. They always think that the other party will certainly bargain and likewise the judges or arbitrators will certainly help with the bargaining so they should ask for a higher price. When choosing lawyers, they are like seeing a psychological doctor – the more the lawyer encourages you to claim, the more professional you feel the lawyer is. Thus, their thoughts run wild like marking their territory and they claim whatever they want. So, what is wrong with unreasonable litigation and arbitration claims? First, an unreasonable impression will be left with the judges and arbitrators; Second, more litigation or arbitration fees will be charged. Third, your lawyers may argue irrationally, focusing on unreasonable claims while ignoring the argument for reasonable claims. Even if they are able to be combined, the argument for the reasonable claims would be weakened by the irrational argument for the unreasonable claims. Fourth, reasonable and unreasonable claims are sometimes different or even contradictory in terms of the factual and legal basis, especially the factual basis. If the factual basis in favour of reasonable claims is not provided in order to pursue unreasonable claims, you would go for wool and come home shorn; if the factual basis is provided, a contradiction would result so that the judges or arbitrators' workload is increased while unreasonable claims are not supported – could you get good results then? For example, if you buy a house and it is uninhabitable with quality problems, then you would want the developer to compensate you. Then you have to let your lawyer think about whether to claim compensation for the cost of staying in a hotel or loss of rent. Therefore, just like a dinner party out, the plaintiff and applicant must make clear who the host is; otherwise, if you just order dishes you like, you would be dumbfounded at the checkout. As for the defendant and applicant, one of the most common mistakes they make is to conceal what cannot be concealed. Also, they may blindly refuse to acknowledge in cross-examination, thinking that the judges or arbitrators can do nothing about it. But as everyone knows, you should have different attitudes towards different facts of the case. For the first category of facts, even if you do not say them, the other party would submit evidence for them. In an arbitration case of equity transfer of a foreign-invested enterprise, the applicant was the foreign side who requested the arbitral tribunal to confirm that the respondent had abandoned priority and rule that the respondent should assist in the handling of the equity transfer approval procedures. The respondent submitted the Entrusted Operation Agreement of the foreign-invested enterprise signed by the two parties, which clearly provided that the foreign side shall be responsible for the operation of the joint venture on the condition that the foreign side shall not transfer its shares before the Chinese side transfers all its shares to third parties or the foreign side. Although not submitted by both parties for approval, the agreement stipulated that it shall be effective from the day of signing by both parties' representatives and both parties had actually implemented the agreement. In the trial, the applicant was very passive and its credibility was greatly reduced in the eyes of the arbitrators. Therefore, you may conceal what can be concealed, but not what cannot be concealed. For the second category, if you do not acknowledge and the judges or arbitrators can do nothing about it, you may refuse to acknowledge to the end. There was an arbitration case where two parties signed a timber harvesting and sales contract and the applicant （the buyer） said that the respondent （the seller） did not hand over the goods while the respondent said that it had handed over the goods and the applicant did not pay. The respondent's evidence was that it had handed over the goods to the applicant's representatives （two natural persons） and there was no evidence that the two persons were the applicant's representatives. The applicant refused to acknowledge and said that it would cross-examine the two persons, but it did not appear in court later （its lawyer appeared in court）。 After a lot of consideration, the arbitral tribunal felt that it was hard to technically adopt the testimony of the two persons. For the third category, if you do not acknowledge, the judges or arbitrators may help you acknowledge. Strategies are needed here. The funniest example is as follows: the plaintiff （applicant） said that it had given written notice to the defendant （respondent） and produced a copy and courier reprint of the notice. The defendant （respondent） plausibly requested production of the original. The plaintiff （applicant） said that the original had been sent. In this case, refusal to acknowledge not only is meaningless but also allows the judges or arbitrators to think that you are dishonest. In another arbitration case, the applicant first refused to appear in court, and when appearing finally, he said at the beginning: “I refuse to answer any questions.” However, even if you do not answer, the arbitral tribunal would ask as scheduled. The results are predictable – you have to give up the part that you would not lose. A judge said that blind refusal equalled to giving up the opportunity to defend yourself. Of course, some agents do not acknowledge at first and they express their views with assumptions, which would be a smart move. But you must allow judges and arbitrators to feel that you are not looking for trouble. How do you do this? A few words cannot make it clear. In the final analysis, it is mental aura. In short, both the plaintiff （applicant） and the defendant （respondent） should not just plausibly say that they should win; they should also provide the judges and arbitrators with a set of programmes for deciding you should win that they are willing to accept. It is just like the relationship between the leader and the secretary. If the secretary wants the leader to do as he wants, he must prepare a set of programmes that are acceptable to the leader. As for the leader, if he has only one secretary and is busy or does not want to bother to make the programme, he would have to accept the secretary's programme. Judges and arbitrators are the leader and the parties are the secretary.
【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）。