How to judge whether you win or lose your lawsuit?

Lawyer Lu's Note: I often encounter such a problem in my practice: when the parties consult, they are most concerned about their chances of winning the case. That's understandable. If your rights are infringed, you must defend your rights. At the very least, you can't suffer from such timidity! (In fact, in practice, quite a few parties go to court not for anything else, but for relief. But it takes time, energy and money to go to court, and no one is willing to pay for the result of losing the case. Therefore, in their initial communication with lawyers, they usually take pains to state the facts of the case that are not focused, or intentionally or unintentionally exaggerate the facts that are beneficial to them in the process of presentation, with more subjective feelings. Finally, I don't forget to ask the last sentence: Do you think I can win this lawsuit (or do you think I have a good chance of winning this lawsuit)? Usually, litigants are not legal professionals. They are blameless when they state the facts, and it is understandable to exaggerate the facts that are beneficial to them. However, when they asked me to predict or judge the success or failure of this lawsuit, I always had a feeling that I couldn't tell. If I tell him that the lawsuit is sure to win, I have to figure out how to explain it to him once the lawsuit is lost; If I tell him that you can't win this lawsuit, then I can't do this business. Maybe it's a good choice to tell him that you have a good chance of winning this lawsuit, but it seems. Hehe, I've always wanted to say something about this problem, but I haven't had time or settled down to study it. The following is an article published by Mr. Hu on China Lawyer's website. I feel that I have said a lot of my own thoughts. Now I extract it from it, which is an answer to the above question. I hope it will help those who care about winning or losing the lawsuit. In fact, it is not a simple question to predict or judge whether a lawsuit will win or lose. There is a lot of knowledge in it! How to predict or judge the success or failure of civil and commercial litigation cases (litigation)? (Excerpted from China Lawyers Network/Hu) In order to help the parties predict or judge the litigation results they have faced or will face, the author summarizes the experience in handling cases and draws up a complete system of factors that determine the success or failure of civil and commercial litigation cases, namely the risk assessment system of civil and commercial litigation cases, hoping to help the parties and avoid blind litigation. The factors affecting the success or failure of civil and commercial litigation cases are as follows: 1. Whether the subject is qualified; 2. Whether the jurisdiction is disputed; 2. Whether the disputed matters can be protected by law; 2 whether the parties are at fault or responsible; 3. Whether the nature of the lawsuit is clear; 4. Whether the request is clear and appropriate; 6. Whether the limitation of action has passed; 7. Whether the evidence is sufficient. Whether the evidence is valid. 3. Whether the relevant laws and regulations clearly stipulate the legal issues involved in the case. Agent 1, professional level and practical experience 2. Professional ethics. Public relations and interpersonal skills. Official judge 1, professional level and handling experience II. Professional ethics. Interpersonal skills. Is the accepting institution 65438+ a court or arbitration? 2. Is there any local protection? 3. Overall handling level This system is an open system. Apart from the above factors, there may be other factors that determine the success or failure of civil and commercial cases. The above factors are described as follows: 1. In terms of procedural factors, in practice, some cases have not entered the substantive review, and the results have already been seen. It is said to be a "clue" because as a plaintiff, the prosecution was rejected due to procedural problems, and it is possible to appeal. This is not the final conclusion, but perhaps even if it is appealed, the original judgment may be upheld in the second instance. Whether the subject is qualified includes three aspects: first, whether the plaintiff is qualified, that is, whether he can become the plaintiff; The second is whether the defendant is qualified, that is, whether the plaintiff sued the wrong object; The third is whether the third party is qualified, that is, whether one party should be treated as a third party or whether it belongs to the wrong object. According to Article 108 of China's Civil Procedure Law, "the plaintiff is a citizen, legal person and other organization that has a direct interest in this case". Judging whether the plaintiff is qualified depends on whether the plaintiff has a direct interest in the case. In addition, in practice, the plaintiff did not notice that the consequences of the transfer of rights were still lifted in its name. Whether there is any objection to jurisdiction includes two aspects: first, whether to bring a lawsuit to the court or apply for arbitration; The second question is which court should be under its jurisdiction. Objection to jurisdiction is often the defendant's defense strategy and defense reason. Therefore, the plaintiff must be clear about the jurisdiction when suing, otherwise there will be unnecessary litigation, wasting energy and financial resources and demoralizing! Now, some courts have ruled that the plaintiff's indictment cannot be served on the defendant. Although there is no legal basis for the court to do this, as the plaintiff, we must consider whether the relevant legal documents can be served on the defendant, that is, the court may not dismiss your lawsuit, but the service of the announcement may be protracted; That is, the judgment may be absent, but the execution will face great risks. Second, regarding the substantive factors, whether the disputed matters can be protected by law refers to the matters that cause disputes between both parties, such as whether a contract or an act is legal and effective. Whether a contract or behavior is valid mainly depends on whether the contract or behavior violates the mandatory and prohibitive provisions of relevant laws and regulations. If you don't violate it, the legal effect is guaranteed. If you violate it, you may not be protected by law. Whether the contract or behavior is valid, if one party has no responsibility, of course, there is no doubt that it will win. In practice, there are often reasons for invalid contracts or actions. As a plaintiff, don't overestimate the other party's reasons. As a defendant, don't be intimidated by the other party, but analyze the reasons and the degree of your responsibility realistically. Although the principle of "no-fault determination" has been adopted in some tort lawsuits, it does not mean that there is no need to determine the fault, but the burden of proof is reversed. Generally speaking, litigation can be divided into criminal litigation, civil litigation and administrative litigation. As far as civil litigation is concerned, there are also tort litigation and breach of contract litigation. According to the nature of the request, civil litigation can be divided into confirmation litigation, payment litigation and change litigation. Whether the nature of the lawsuit is clear or not will sometimes affect the success or failure of the case. If criminal cases or administrative cases are prosecuted as civil cases, they will definitely be rejected. For example, if a hotel is stolen and killed, the lawsuit for infringement dispute may be rejected, and the claim for breach of contract dispute may be supported by the court. In some cases, it is obviously a lawsuit of payment, and if it is prosecuted by a lawsuit of confirmation, it may be rejected; Or it is obviously a lawsuit of confirmation. If it is a lawsuit of payment, it may not be supported. The basic feature of the action of confirmation is that the court only needs to confirm whether there is some legal relationship between the two parties, and does not need to order the losing party to perform some payment obligation. As the plaintiff, after clarifying the nature of the lawsuit, the next question is to ask for clarity and appropriateness. If the request is not clear, the judge will be at a loss; Improper request will either fail to achieve the purpose of litigation or cause unnecessary legal expenses. In practice, in some tort lawsuits, the plaintiff is willing to ask the other party to pay huge compensation, which is often not supported because of lack of basis. The limitation of action refers to "the obligee fails to exercise his rights within the statutory time limit, but when the limitation of action expires, he loses the right to request the people's court to force the obligor to perform his obligations according to the litigation procedure, and its application scope is limited to the right of claim, mainly the right of claim for property rights other than creditor's rights, and the provisions of the limitation of action are not applicable to rights such as the right of formation and the right of defense". Article 135 of our country stipulates: "The limitation of action for requesting protection of civil rights from the people's court is two years, unless otherwise stipulated by law", and Article 136 stipulates: "The following limitation of action is one year: (2) The sale of unqualified goods has not been declared; (3) delaying or refusing to pay the rent; (4) The property in escrow is lost or damaged. " Although the limitation of action is interrupted or suspended, as a plaintiff, the above provisions are often forgotten, which leads to the expiration of the limitation of action, or the relevant evidence does not fixedly prove that the limitation of action is interrupted, thus losing the right to win the lawsuit. As a defendant, in the absence of other defense reasons, the statute of limitations will often become the last straw, thus turning the whole case around, and there are countless cases in this regard! In a sense, litigation is to fight for evidence. The main reason why the plaintiff loses the case is often insufficient evidence, that is, insufficient evidence, and the evidence cannot form a complete chain of evidence to support his claim. Another reason is that the evidence is invalid, that is, the evidence is untrue and illegal, or the evidence lacks relevance to the matters that need to be proved. Before the prosecution, the plaintiff must carefully analyze whether he has enough evidence, and what is the function of this evidence? If you are not absolutely sure, you'd better not act rashly or adjust your claims. If the defendant wants to plead or counterclaim, he must also have sufficient and effective evidence. Whether the relevant laws and regulations clearly stipulate the legal issues involved in the case is often an important factor for the plaintiff to win the case. In practice, although some courts and judges can creatively use the law to form influential cases to make up for legal loopholes or deficiencies, after all, China is not a case law country, and the above cases are not binding on other courts and judges. If your lawsuit encounters a legal gap, the possibility of winning will be very slim. If your lawsuit is stipulated by law, then no matter how dark the court is and how greedy the judge is, you can't lose casually! It should be noted that the laws or regulations mentioned here are broad, including judicial interpretations promulgated and implemented in the Supreme People's Court. Thirdly, the factor of an agent asking for a lawyer in a lawsuit is just like choosing a doctor when he is sick. There is no need to see the expert number for the common cold. Similarly, there is no need to ask a "famous lawyer" to represent a lawsuit with simple legal relationship, small subject matter and clear legal provisions. If you are seriously ill or incurable, you have to choose your doctor carefully. Similarly, you should think twice before looking for a lawyer in major, complicated and difficult cases. There are three factors worth considering when hiring a lawyer, namely, the lawyer's professional level and practice experience, the lawyer's professional quality and moral standard, and the lawyer's public relations and interpersonal skills. At present, there are as many as1.2000 practicing lawyers in China, with uneven professional level and mixed morals. The usual ways for the parties to choose a lawyer are self-knowledge, introduction by others, admiration and visit, online search and merit-based employment, but in any case, the parties must consider the above three factors. Some people say that the lawsuit is a relationship, and the lawyer is just a decoration or a bridge for bribery. This statement is both reasonable and unreasonable. It is true that judicial corruption, judicial injustice and local protection do exist, and some places and units are very prominent, even reaching a rampant level! The "accident" of the presidents of seven higher people's courts in China is an example. Nevertheless, the role of lawyers is not dispensable. In some cases, the level of lawyers determines the success or failure of a case. With the strengthening of national anti-corruption efforts and the further improvement of anti-corruption mechanism, the role of lawyers in litigation will become increasingly obvious and prominent. The author's experience in more than ten years is: going to court is to make excuses, and it is reasonable to travel all over the world, and other factors are just icing on the cake; At best, the judge can only say that white is gray, but it is impossible to say that white is black. There are very few judges who turn black and white upside down and pervert the law. The so-called "white" means that the judge can judge this way or that way, and can sentence less or more. That is, if the judge enjoys greater discretion, if you have enough "activity ability", maybe the judge will adopt your opinion, but only if you have reasonable reasons that can stand the existing laws and stand the trial supervision. The so-called reasons are the procedural reasons and substantive reasons mentioned above. Who can understand it? Lawyers, of course, but you can't just find a lawyer. A good lawyer can not only win the lawsuit that should be won, but also win the lawsuit that may be lost, and even activate the lawsuit that ordinary people think is a death case. Therefore, when choosing a lawyer, the parties must conduct a comprehensive investigation and understanding of the lawyer to be hired in the above three aspects according to the case. Don't blindly listen to the recommendation of friends, don't blindly believe in the reputation of so-called lawyers, don't listen to the boasting of lawyers, don't over-trust the "activity ability" of lawyers, and don't pursue low lawyer fees! The following passage will help you to hire a lawyer: "Lawyer: You need to have outstanding talents, habits of logical thinking, a clear grasp of broad common sense, endless patience and self-control, the ability to see people's hearts through intuition, the ability to judge personality from expressions and then perceive motives, accurate and powerful behavioral characteristics, exquisite understanding of case-related knowledge, extreme caution and-most importantly-the ability to acutely expose the weaknesses of testimony during cross-examination." Four. Factors about the presiding judge At the present stage in China, the judiciary is not completely independent, including that the presiding judge cannot decide the outcome of the case alone, and the judge should listen to the opinions of other members of the collegial panel, report to the president and the president, and even make a decision by the judicial Committee. Nevertheless, in some cases, the competent judge can play a decisive role. The parties can't choose a judge, but how to convince the judge depends on the judge's professional level, case handling experience, professional accomplishment and moral standard. Judges have high professional level, rich experience in handling cases, strong moral standards and professional accomplishment. You will never lose a lawsuit that you can win! On the contrary, the professional level of the presiding judge you meet generally has no experience in handling cases in this field, with poor moral standards and no professional accomplishment, and you may be in trouble! Law always lags behind social development, but a good judge can make up for this defect. A good judge not only does not take bribes and bend the law, but also applies the law mechanically. Instead, we should make use of the discretion granted by the law to create new rules according to the spirit of legislation and the principle of fairness and justice required by human civilization, and give full play to our good interpersonal skills to convince those who can influence the outcome of the case to form classic cases, thus promoting the perfection of the law. Of course, bad judges are those who take bribes and bend the law, handle relationship cases and human cases, and succumb to the arrogance of local protectionism. Why can a lawsuit lost in the first instance win in the second instance? Maybe you found a good lawyer, maybe it's important that you met a good judge! V. Factors concerning the accepting institution When the parties are engaged in a lawsuit, they often argue about jurisdiction. An important factor is that the accepting institution can sometimes influence the outcome of the case. As a plaintiff, the usual practice is: those who can file an arbitration will not go to court, and those who can file a lawsuit locally will never go to other places to file a case. As a defendant, anyone who can exercise jurisdiction objection will exhaust this right! Nowadays, local protection is particularly popular in underdeveloped or underdeveloped areas. It's not the abnormal judgment of individual judges, but the whole court is trampling on the law! For the parties from other places, the local court with strong local protectionism usually shows that you obviously meet the conditions for filing a case, and it refuses to file a case for you; Obviously there is no jurisdiction, that is, your objection application is rejected; You asked for property preservation, but it didn't reply; You can win the lawsuit, but it may judge you completely lost; Where an application for execution is made, the execution may be suspended or terminated because the person subjected to execution cannot be found or the person subjected to execution has no property to execute. What's more, some local courts colluded with local parties to engage in false preservation, false bankruptcy and false judgments, which became "dens of counterfeiting and selling fakes". Generally speaking, the impartiality of arbitration is better than that of courts, courts in developed areas are better than those in underdeveloped or underdeveloped areas, the impartiality of higher courts is better than that of lower courts, and the impartiality of "model courts" is better than that of ordinary courts. In developed areas, courts with abundant talents are better than those with scarce talents, and courts with a tight grasp of clean government construction are better than courts with loose discipline. In short, there are many factors that affect the outcome of the case, and each factor has a different role. This system only helps the parties to make simple analysis and judgment. When you encounter a major, difficult and complicated case, unless your professional level and experience are competent, you'd better turn to a number of lawyers or expert advisory committees to make a comprehensive "diagnosis" of the case's results by combining the above factors. If the case is arbitrated, the above-mentioned "principle" still applies, and the parties have one more choice, that is, the parties can choose arbitrators according to the requirements of the judge, and perhaps you are more confident to win the lawsuit.