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.

I'm ready to help translate your Chinese legal content into professional English for the Shenzhen Zhiming Law Firm website. Please provide the Chinese text you'd like me to translate.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 truly favorable to oneself rather than a double-edged sword? Or can they be ranked and selected based on the strength of their probative value?

3. At which stage should rebuttal evidence be submitted?

4. From the opposing party's perspective, what flaws can be identified in one's own evidence, and how should they be addressed?

5. Which evidence may be presented or withheld depending on the circumstances of the trial, especially the opposing 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 asserted by our firm, have we exhausted all available evidence? Is the chain of evidence complete?

2. How to communicate with the judge to find solutions for evidence that is difficult to obtain or collect, rather than giving up proactively.

3. How should we respond to a judge's request for further supplementary evidence? Should we resist it outright or comply unconditionally?

3. Not knowing how to handle the judge's on-the-spot questions in court.

Here is an example:

A lawyer in court requested the rescission of a contract, eloquently arguing that if the contract were to continue to be performed, it would be manifestly unfair in such and such ways, and that the background circumstances for its performance had undergone a major change of circumstances, and so on. The judge asked him one question: Is the basis for your claim for rescission of the contract manifest unfairness or changed circumstances? He was clearly unprepared, hesitated slightly, and answered: manifest unfairness. Later, during the panel deliberation after the hearing, the judge who had asked the question said: This lawyer clearly did not understand my question. Manifest unfairness refers to an unfair situation that already existed at the time the contract was signed, whereas changed circumstances refers to a situation where there was no problem at the time the contract was signed, but as time and the environment changed, the circumstances for performing the contract underwent a major change, making continued performance of the contract unfair. If he chose to base his claim for rescission on manifest unfairness, we would certainly have to reject it, but if he based it on changed circumstances, we could consider supporting it. At the very least, he should have answered that both were asserted in the alternative as grounds for rescission and left it to us to decide, which would still have been better than giving one 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 the judge says, especially those statements or questions made during fact-finding (regardless of which party they are directed at), and quickly analyze and discern the judge's reasoning in adjudicating the case and attitude toward the admission of evidence and facts.

2. When a judge asks a question to your side that falls outside your prepared scope, do not panic. First analyze the intent behind the question. If you are unsure of the intent, it is better not to answer directly; you may deflect with other irrelevant remarks and, after the hearing, provide a written response following adequate preparation.

3. A clever and well-prepared response helps guide the judge's line of thinking and can also direct the judge to focus on asking the opposing party questions about key facts, thereby achieving the strategic objective of striking at the opponent's vital points.

4. Blindly expressing opinions.

In a construction contract dispute, the parties agreed in a supplementary agreement that the contractor must cooperate with the developer to complete the project completion filing procedures within 5 days, failing which the contractor would be liable for liquidated damages of 5 million yuan. However, the project completion filing was actually processed only two months after the supplementary agreement was signed. In response to this issue, the contractor's defense was that the developer had provided filing materials containing false construction costs, which was why it refused to agree to affix its seal and cooperate. It was not until two months later, when the developer promised that the materials would be used solely for filing purposes and not as a basis for project settlement, that the contractor affixed its seal and cooperated in processing the filing procedures. During the trial, it was necessary to verify when the documents requiring the seal were actually delivered to the contractor. According to a notice delivered by the developer to the contractor one month after the supplementary agreement was signed, the materials had already been delivered and the contractor was requested to affix its seal and cooperate. 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, but because the contractor refused to affix its seal, a written notice was later sent to urge compliance. In response to this statement, the contractor's attorney immediately expressed acknowledgment and reiterated that the refusal was due to the falsified data in the materials requiring the seal. Ultimately, the collegial panel found that because both parties had already stated in other meeting records prior to signing the supplementary agreement that the project settlement price reported to the filing authority would not serve as the true basis for settlement between the parties, and because the settlement price in those meeting records was consistent with the figures in the construction cost statement that the contractor refused to seal, the court ruled that since both parties had prior knowledge of and consented to the falsified cost report before signing the supplementary agreement, and although such conduct was unlawful, the contractor's defense that it would only agree to affix its seal after the developer made a commitment could not be sustained. Given that the contractor admitted to having received the materials within 5 days after the supplementary agreement was signed, it constituted a breach of contract and should bear liability for liquidated damages.

In this case, the construction party's attorney was overconfident and responded at trial based solely on his preconceived defense strategy. However, if the materials had been submitted one month after the supplemental agreement was signed, they would have been exempt from the five-day deadline. The attorney failed to notice this detail, and a momentary oversight led to an unfavorable outcome at trial.

In summary: litigation is a meticulous task, and litigation lawyers must be cautious at every step to avoid pitfalls and ultimately win the case.

(Song Xun)