Several mistakes that litigation lawyers should not make during court trials
[Tip] For litigation lawyers, a trial is like a battlefield, inevitably filled with heated arguments and back-and-forth exchanges. Yet, amid meticulous planning, a single oversight can occur—often when caught up in the heat of debate, one may unknowingly reveal a weakness. This article attempts to summarize those aspects most easily overlooked by lawyers during trials, akin to discovering hidden reefs beneath the sea.
1. Mistakenly presenting evidence that should not have been submitted
Many lawyers tend to indiscriminately submit all evidence provided by their clients for court examination, without even considering a backup or tertiary plan for presenting evidence during the trial. By failing to examine the evidence from the opposing party’s perspective in advance, they often find themselves caught off guard when a piece of evidence is seized upon by the opponent, leading to a passive situation where they cannot explain it clearly. Therefore, when preparing evidence for one’s own side in a trial, careful consideration should be given to:
1. Is every piece of evidence truly necessary?
2. Is every piece of evidence genuinely beneficial to one’s own case, rather than a double-edged sword? Alternatively, can it be sorted and selected based on the strength of its probative value?
3. At which stage should rebuttal evidence be introduced?
4. From the other party's perspective, what flaws can be found in your own evidence and how should they be addressed?
5. Which evidence can be presented or withheld depending on the trial situation, especially the other party's statements?
2. Overconfidence or negligence, failing to provide sufficient evidence
Generally, lawyers prepare evidence based on fulfilling their own burden of proof and achieving their own purpose of proof to determine the scope of evidence. However, there can sometimes be a gap between a lawyer's judgment of the burden of proof and the judge's determination. As adjudicators, judges hope that the cases they hear have clear facts and conclusive evidence, making it easier to reach a judgment. Therefore, judges always hope that lawyers can fully and abundantly prove the facts and viewpoints they assert. But as lawyers, they hope to reduce their workload, preferring to present less evidence rather than more, and some evidence is difficult to obtain or prepare, requiring considerable effort and time, so lawyers are reluctant to take on more burden of proof. The current litigation system does not encourage judges to proactively gather evidence ex officio, and in reality, judges do not have sufficient time and energy to collect evidence around the facts. Thus, in the end, judges have no choice but to infer from the limited evidence provided by lawyers, which tests the judge's adjudicative skill and ability to write judgments.
Therefore, as litigation lawyers, the following should be considered regarding the issue of presenting evidence:
1. Regarding the claims or facts I assert, has my side exhausted the evidence? Is the chain of evidence complete?
2. How to communicate with the judge about solutions for evidence that is difficult to obtain or collect, rather than voluntarily giving up.
3. How to respond to the judge's request for further supplementary evidence? Should one blindly resist or blindly comply?
3. Not knowing how to handle the judge's on-the-spot questions in court.
Here is an example:
A lawyer in court demanded the termination of a contract, eloquently arguing how unfair it would be if the contract continued to be performed, and that the background conditions for its performance had undergone significant changes in circumstances, etc. The judge asked him a question: Is the basis for your claim to terminate the contract based on unfairness or a change in circumstances? He was clearly unprepared and hesitated slightly before answering: Unfairness. After the court session, during the deliberation, the judge who asked the question said: This lawyer clearly did not understand my question. Unfairness refers to unfair circumstances that already existed at the time the contract was signed, while a change in circumstances means there was no problem when the contract was signed, but as time and environment changed, the circumstances for performing the contract underwent significant changes, making continued performance unfair. If he chose to claim termination based on unfairness, we would certainly reject it, but if based on a change in circumstances, we could consider supporting it. At the very least, he should have answered that both are grounds for termination and let us decide, which would have been better than giving a wrong answer.
The judge's questions in court are never trivial; the judge's inquiries are related to his trial reasoning. Therefore, as a litigation lawyer in court, one should:
1. Pay close attention to every word spoken by the judge, especially statements or questions made during fact-finding (regardless of which party), and quickly analyze the judge's trial reasoning and attitude toward evidence and facts.
2. When the judge asks a question that is not within your pre-prepared scope, do not panic. First, analyze the intent of the question. If unsure, it is better to avoid a direct answer and instead give an irrelevant response, then prepare fully after the trial and submit a written opinion.
3. A clever and well-prepared response can help guide the judge's reasoning and focus the judge on questioning the opposing party about key facts, achieving the strategic goal of attacking the opponent's weak points.
4. Blindly expressing opinions.
5. In a construction contract dispute case, the parties agreed in a supplementary agreement that the contractor must cooperate with the developer to complete the project completion filing procedures within five days, or else bear a penalty of 5 million yuan. However, the actual filing was completed two months after the supplementary agreement was signed. Regarding this issue, the contractor's defense was that the developer's filing materials contained false construction costs, so they refused to stamp and cooperate. Only after the developer promised that the materials were for filing purposes only and not as a basis for settlement did the contractor agree to stamp and cooperate. During the trial, it was necessary to verify when the documents requiring the stamp were delivered to the contractor. According to a notice sent by the developer one month after the supplementary agreement, the materials had been delivered and requested stamping. However, during the trial, the developer orally stated that the materials had actually been submitted to the contractor within three days after the supplementary agreement was signed, and the written notice was sent later due to the refusal to stamp. In response, the contractor's attorney immediately acknowledged this and reiterated that the refusal was due to false data in the materials. Ultimately, the collegial panel found that, based on other meeting records before the supplementary agreement, the settlement price reported to the filing department was not the true settlement basis, and the price in those records matched the figure in the cost document the contractor refused to stamp. The court concluded that since both parties knew and agreed to the false cost reporting before signing the supplementary agreement, although illegal, the contractor's defense that they had to wait for the developer's promise before stamping was invalid. Given that the contractor admitted receiving the materials within five days after the supplementary agreement, they were in breach and liable for the penalty.
6. In this case, the contractor's attorney was overconfident, relying solely on a pre-set defense strategy during the trial. However, if the materials had been submitted one month after the supplementary agreement, the five-day restriction would not apply. The attorney overlooked this detail, leading to an unfavorable trial outcome.
In summary: litigation is a meticulous task, and litigation lawyers must be cautious at every step to avoid pitfalls and ultimately win the case.
(宋迅)
