What are the main pre-trial preparations for lawyers?
First, ask about the case
Finding out the facts of the case is the basis and premise of lawyer's agency work. Listening to the client's statement is the most direct way for lawyers to understand the case.
Understand the case from the parties, usually by meeting and communicating. Understand the scope of the case, including: subject, causes of disputes, basic facts, litigation status, demands of both parties, etc. It is necessary to be comprehensive, focused and targeted, and actively guide the parties to communicate effectively around the focus of the case by actively asking questions.
To know the case from the parties, we should not only listen to their words, but also consult relevant materials. The two are combined with each other and carried out at the same time to improve communication efficiency. If necessary, a list of information shall be made and the parties concerned shall be required to provide it within a time limit.
Second, investigate and collect evidence.
Lawyers shall, on the basis of inquiring about the case, comprehensively investigate and collect relevant evidence according to the needs of handling cases. The scope of investigation and evidence collection includes: court litigation files, enterprise industrial and commercial files, relevant contracts, real estate registration materials involved, relevant government documents and files, relevant witness testimony, defendant's property, on-site photos and other evidence materials. In short, lawyers should know what their clients know; Lawyers should also know what their clients don't know. All facts and problems related to handling cases must be proved or falsified by evidence.
Third, sort out the facts of the case.
Lawyers should sort out the materials collected in the investigation, and combine the statements of the parties to sort out the facts of the case. The basic methods are: record the facts of the case in chronological order, focusing on the basic facts involved in the dispute; When handling major and complicated contract disputes, we should deconstruct the contract contents (especially the key clauses) and make a comparative analysis of the actual performance; When handling a case of second instance, we should sum up the facts ascertained in the first instance, and combine the statements of the parties and relevant evidence to clarify the facts without objection, the facts with objection and the reasons for objection.
Fourth, the research and analysis of legal relationship
After clarifying the facts of the case, we need to deeply analyze the legal relationship of the case. The analysis of legal relationship should focus on the nature, rights and obligations, and consequences of legal relationship, focusing on what rights or defenses the parties enjoy. On the basis of the analysis of legal relationship, according to the arguments of both sides, the focus of controversy is summarized, which provides problem-oriented for the next legal retrieval.
V. Legal provisions on search
On the basis of determining the nature of legal relationship and the focus of disputes, comprehensively search for relevant legal provisions. The search of laws and regulations should cover all the laws and regulations related to handling cases, including laws, judicial interpretations, administrative regulations, local regulations and departmental rules. And download relevant laws and regulations, organize and form "relevant legal provisions" for case studies and court trials.
Sixth, search for similar cases.
China is not a case law country. However, according to Article 7 of the Supreme Court's Provisions on Case Guidance (Fa Fa Fa [20 10] No.51): "The guiding cases issued by the Supreme Court shall be implemented by people's courts at all levels when trying similar cases." In addition, the Supreme Court's bulletin cases or other cases have no reference significance in principle. However, the opinions and reasons of judges in similar cases can be used as the basis for understanding the law and persuading judges.
Similar cases should be searched in the order of cases instructed by the Supreme Court-cases in the Gazette of the Supreme Court-other cases of the Supreme Court-cases of the High Court-cases of the Intermediate Court. Generally, there is no need to pay attention to and cite the cases of grass-roots courts unless they are elected as guiding cases, notification cases or excellent cases of the court system.
The number of similar cases retrieved should be sufficient, with more than 5 general cases and more than 10 major and difficult cases. We should not only collect cases that support our own views, but also pay attention to collecting cases that are different from the referee's views.
The retrieved similar cases should be downloaded in full, focusing on the judgment results, opinions and reasons, and comparative analysis of similar cases should be made to study the similarities and differences between similar cases and this case in terms of legal application, judgment reasons and results, so as to provide reference for the agent of this case.
Seven, search legal point of view
For major and difficult cases, or when there are disputes about the understanding and application of a law, it is necessary to retrieve relevant legal viewpoints, including justice theory and academic viewpoints. "Justice theory" refers to the interpretation of laws and judicial interpretations by the Supreme Court and its justices, such as the Supreme Court's answers to reporters' questions, the individual replies of the Supreme Court, and relevant books or articles written by the Supreme Court justices. "Academic viewpoint" refers to the viewpoint of legal scholars. Neither the theory of justice nor the academic viewpoint can be directly used as the basis of judgment, but it plays an important role in explaining the legislative intention, enriching the concept of agency, and finding support from viewpoints.
Eight, refining the main points of plea
On the basis of fact sorting and legal analysis, we should refine the main points of plea and provide guidance for the trial. To represent the plaintiff, a written agency point should be formed, summarizing the main agency views and their factual and legal basis; To represent the defendant, a written defense opinion or defense points shall be formed, and the main defense opinions and their factual and legal basis shall be sorted out. At the same time, for the other side's views and possible refutations and doubts, we should make a good prediction and response plan, so as to know ourselves and ourselves, have both offensive and defensive skills, and advance and retreat in an orderly manner.
Nine, organize the catalogue of evidence
Based on my own facts, I classified, selected and sorted the evidence materials collected in the investigation, organized and formed a catalogue of evidence, explained the number, name, source, page number and proof content of the evidence one by one, and bound the evidence materials into a book. The classification of evidence should be divided according to different factual claims. The choice of evidence should focus on the focus of controversy and defense claims, and their own claims should be supported by corresponding evidence. There must be no contradiction between the cited evidence and the claim, and there must be no contradiction between evidence and evidence. The arrangement of evidence should be sorted according to the time sequence, logical relationship and importance of events.
X. pre-trial communication
Before the formal trial, there is still a lot of convergence and communication work. For example: communicate with the court, understand the opinions, evidence, investigation and evidence collection or appraisal of the other party, understand the concerns of the judge, and clarify whether it is necessary to hold evidence exchange or apply for an extension of the court session; Communicate with the client the main points of the trial, verify and confirm the evidence catalogue and evidence materials, and inform to prepare the original evidence; Communicate with your own witnesses before the trial, understand the contents to be testified, and explain the obligations and responsibilities of witnesses.
These preparations made by lawyers before the trial are to better defend the defendant or criminal suspect in this case after the trial. Lawyers in civil or criminal cases have their own things to do at every stage. The criminal suspect and the relevant personnel involved in the case must explain the ins and outs of the case to the lawyer realistically, so as to facilitate the lawyer to carry out his work.
Legal basis:
Article 125 of the Civil Procedure Law of People's Republic of China (PRC), the people's court shall send a copy of the indictment to the defendant within five days from the date of filing the case, and the defendant shall submit a reply within fifteen days from the date of receipt. The defense shall specify the defendant's name, gender, age, nationality, occupation, work unit, residence and contact information; The name and domicile of the legal person or other organization and the name, position and contact information of the legal representative or principal responsible person. The people's court shall send a copy of the defense to the plaintiff within five days from the date of receiving the defense. If the defendant fails to submit the defense, it will not affect the trial of the people's court.
Article 133 The people's court that decides the application procedure of a case shall handle the cases it accepts separately according to the circumstances:
(a) if the parties are not in dispute and meet the requirements of the supervision procedure, they may be transferred to the supervision procedure;
(2) If mediation can be conducted before the court session, it shall be settled through mediation in time;
(three) according to the circumstances of the case, determine whether to apply summary procedure or ordinary procedure;
(4) If a court session is needed, the focus of the dispute should be clarified by asking the parties to exchange evidence.