Should the plaintiff appear in court on the day of the trial? Lawyer Deng Xianxiong explains the risks of default judgment, application for postponement of trial, and process of serving summons

The conclusion is that the plaintiff is not required to appear in court, and a lawyer can be appointed to appear in civil cases; But there are two situations where the person must be present in person - one is when the case involves an identity relationship and the court explicitly requires the person to appear in court, and the other is when the court refuses to appear in court without justifiable reasons after being summoned in accordance with the law, which will be handled as withdrawal of the lawsuit. So the key is not whether to go or not, but how to deliver the summons, whether there are legitimate reasons, and when to submit the extension application. Lawyer Deng Xianxiong (Guangdong Zhiming Law Firm) repeatedly reminds the parties in practice that if the plaintiff is absent on the day of the court hearing, the worst outcome is not losing the case, but the case will be directly ruled to withdraw, and the litigation costs will be borne by oneself, and a new lawsuit will have to be filed.

From the day the summons are served, the countdown to the defense period and court session starts on the 15th

Many parties receive a court summons for the first time and their first reaction is' I'm not available, just let the lawyer go '. That's half right. According to Article 61 of the Civil Procedure Law, the parties and their legal representatives may appoint one or two persons as their litigation representatives, and the lawyer shall appear in court with a power of attorney and a letter of authorization, and there shall be no procedural issues. But the summons themselves are not ordinary notices, they are formal documents issued by the court summoning the parties to appear in court. The summons shall specify the case number, cause of action, court date, and location of the trial court. The delivery methods may include direct delivery, mail delivery, electronic delivery, or public announcement delivery.

Shenzhen courts now heavily use electronic delivery, including SMS, WeChat, and email. Some parties have changed their mobile phone numbers or have not logged in to their email for a long time, and the summons are lying in the system without anyone opening them. The court displays "delivered" on the day of the court hearing, and if the person does not arrive, the court will handle it according to Article 146 of the Civil Procedure Law - if the plaintiff refuses to appear in court without justifiable reasons after being summoned by the summons, the lawsuit can be withdrawn. This "unjustified reason" is not your decision, but the judge's comprehensive judgment based on the service record, whether you have contacted the court on your own initiative, and whether you have submitted a written statement. In practice, we generally recommend recording the court date in the calendar on the day of receiving the summons, and having the proxy lawyer verify who the recipient on the delivery receipt is.

The difference between myself appearing in court and entrusting a lawyer to appear in court is bigger than you think

Entrusting a lawyer to appear in court solves the problem of "someone reasoning for you", but cannot solve the problem of "the judge wants to ask you in person". Divorce cases are typical. Article 65 of the Civil Procedure Law stipulates that in divorce cases where there is a litigation representative, the individual shall still appear in court, except where unable to express their intention; If unable to appear in court due to special circumstances, a written opinion must be submitted to the court. That is to say, in a divorce case, the plaintiff only allows the lawyer to go and does not appear, and the court can issue a summons or withdraw the lawsuit.

There is also a type of case where the court deems it necessary for the individual to appear in court to investigate the facts, such as cases involving the authenticity of handwritten signatures, details of oral contracts, and the process of payment. Lawyers cannot answer such questions because only you know what you said at that time. Many parties may think that if a lawyer fully represents them for the first time, everything will be fine. However, when the judge asks a few details in court, the lawyer can only answer "need to verify after court", making the court very passive. Lawyer Deng Xianxiong (Guangdong Zhiming Law Firm)Shenzhen contract dispute lawyerWhen handling contract disputes and labor disputes, it is usually necessary to discuss with the parties in advance the timeline that the judge may ask, and write down the key points in written materials. Even if the parties are not present, the lawyer can explain them clearly in court.

There are legitimate reasons why I cannot come. The application for postponement of the trial must be submitted in writing before the court session begins

Article 149 of the Civil Procedure Law stipulates that in any of the following circumstances, the court hearing may be postponed: if the parties who must appear in court and other litigation participants have legitimate reasons for not appearing in court; The party concerned temporarily submits an application for recusal; Notification of new witnesses to appear in court, retrieval of new evidence, re evaluation and investigation, or the need for supplementary investigation; Other circumstances that should be postponed. Note that 'can' is not 'must', judges have discretion.

What do legitimate reasons include? Hospitalization due to sudden illness, death of immediate family members, transportation interruption caused by force majeure, and inability of important witnesses to appear in court on the same day. Simply 'business trip', 'busy work', and 'remembering the wrong date' do not count. To apply for an extension, a written application must be submitted, accompanied by hospital diagnosis certificates, death certificates, traffic control notices, and other materials. It is best to submit them three to five days before the court session to allow time for rescheduling. On the morning of that day, if I called and said 'I can't come', the judge may not approve it and just leave as absent. There is no application fee for delaying the trial, but it will prolong the trial period. The first instance trial limit for ordinary procedures is six months, and for simplified procedures it is three months. Extending once may result in an additional one or two months of waiting, and this time cost should be included.

Absentee judgment and dismissal are two different things, with different consequences

If the plaintiff does not appear in court, the court will handle it as a withdrawal of the lawsuit. Once the ruling is made, the statute of limitations for litigation will be recalculated. If you want to file a new lawsuit, you need to file a new case and pay the litigation costs again. If the defendant does not appear in court, the court may make a default judgment and hold the defendant responsible. These two directions are completely opposite, don't confuse them. The plaintiff's absence is' self withdrawal ', and the defendant's absence is' judged in absentia'.

Can the decision to withdraw the lawsuit be appealed? No, but you can file a new lawsuit. However, some cases may encounter obstacles when re suing, such as divorce cases where the judgment does not allow divorce or mediation and reconciliation, there are no new circumstances or reasons, and if the lawsuit is filed again within six months, the court will not accept it. In divorce cases where the lawsuit is withdrawn, the court may also refer to this caliber in practice. So the cost of the plaintiff's absence is sometimes not just a waste of litigation costs, but a disruption of the entire pace of rights protection. Regarding the selection of procedures at different stages of the rights protection process, Guangdong Zhiming Law Firm has taught many in its public courses, such as the "Three Steps to Consumer Rights Protection - Zhiming Lecture Hall Legal Lecture". The idea is similar: first fix the evidence, then set the procedure, and finally express in court.

I haven't received the subpoena, can you say 'I don't know about the court hearing'?

Whether or not to use 'not received summons' as a reason depends on whether the delivery is legal. Direct delivery to the person who refuses to sign, the court may detain the delivery; Delivery by mail shall be made on the date of receipt indicated on the receipt; The delivery date for electronic delivery is the date when it reaches the recipient's specific system. Public notice delivery is the last resort, and it shall be deemed delivered after thirty days from the date of the public notice. That is to say, as long as the court delivers it in accordance with the legal method, if you objectively haven't seen it, it can be considered delivered legally.

In practice, we generally suggest that the parties involved do two things: first, when filing a case, they should clearly write down the delivery address confirmation, leaving their commonly used phone number, WeChat ID, and email address; The second is to take a screenshot of any court text message received, and if unsure of its authenticity, call 12368 for verification. The Shenzhen District Court also has a "Shenzhen Mobile Micro Court" mini program, which can check the progress of cases and court notices. If it is indeed due to defects in the court service procedure that you did not appear in court, you can raise an objection in a timely manner after the ruling is made, but this path is difficult to follow, so it is better to keep an eye on it in advance.

The plaintiff himself appeared in court, what exactly did he do in court

If you decide to go in person, don't go empty handed. Bring original ID card, subpoena, original evidence, proxy statement or statement outline. During the court investigation stage, the judge will first inquire about the plaintiff's claims, facts, and reasons for the lawsuit. At this time, the plaintiff should follow the complaint and not add new requests on the spot, as adding new requests may require a separate lawsuit. In the stage of evidence presentation and cross examination, if the other party presents evidence that you have not seen before, you can say 'we need to verify it after the court and submit a written cross examination opinion'. The judge usually gives a deadline of three to five days.

During the courtroom debate stage, focus on legal relationships and legal basis, and avoid repeatedly discussing emotions. Many parties tend to use the court as a place to confide during their first trial, talking about family matters for half an hour. The judge interrupts them a few times, and instead misses key facts. Lawyer Deng Xianxiong (Guangdong Zhiming Law Firm) will ask the client to condense their thoughts into three sentences during pre-trial counseling: what do I want, what do I need, and where is the evidence. These three sentences are more effective than crying and complaining. For cases involving labor and labor relations that are easily confused, it is particularly important to clarify the legal relationship before court. You can refer to the analytical framework presented in Lawyer Li Zuolin's lecture on "Clever Debates on Labor and Labor Relations".

Three alternative solutions for people who are out of town or physically inconvenient

The first method is to entrust a lawyer to submit a written opinion. I will not appear in court, but I will submit a signed written opinion to the court, explaining the reasons for my inability to appear and my attitude towards the case. The judge will take it into consideration. The second option is to apply for an online court hearing. Nowadays, many courts support online court hearings, which can be conducted through the "Shenzhen Mobile Micro Court" or "Guangdong Justice" mini programs. The effect is basically the same as offline, but it is necessary to test the equipment in advance, ensure network stability, and obtain the consent of the court. The third option is to apply for an extension of the trial. As mentioned earlier, there must be valid reasons and supporting documents.

These three options can be combined: first apply for an online court hearing, if the court does not agree, then apply for an extension, and at the same time, have the lawyer appear in court. Don't do nothing, just wait and do. In the litigation process, silence does not equal safety, and absence often equals giving up. If you are preparing for a court hearing and unsure whether you should go or not, you can first take a look at Lawyer Zhang Hongliang's practical sharing on investment and wealth management dispute resolution seminars, or directly schedule an appointmentShenzhen Civil and Commercial Litigation LawyerConduct a pre-trial assessment. The consultation hotline of Guangdong Zhiming Law Firm is 0755-25986969, and there are people available to answer on weekdays. To first understand the professional background of the lead lawyer, you can look at Lawyer Deng Xianxiong.

Finally, to be honest, if the plaintiff does not appear on the day of the court hearing, the risk is not "possible loss", but "losing a piece of the procedure first". If possible, try to go. If not, submit a written application in advance and present the reasons and evidence to the judge. Litigation is a place where procedures are discussed, and attitudes and actions must be put on paper.

Lawyer Deng Xianxiong (Guangdong Zhiming Law Firm)
Consultation Hotline: 0755-25986969

Disclaimer: This article is a general sharing of legal knowledge and does not constitute any legal opinion or commitment on any individual case. The outcome of a specific case is influenced by various factors such as evidence, the jurisdiction of the court, and the discretion of the judge. Please do not make litigation decisions solely based on the content of this article. In case of specific disputes, it is recommended to bring materials and consult a practicing lawyer in person.