The intervention of the second instance is both an opportunity and a challenge for the lawyers handling the case. It also provides a rare perspective from a third-party perspective to examine the gains and losses of the first-instance litigation strategy. According to the author's rough experience, the handling of second-instance cases is fundamentally different from the first-instance case. Below, the author has sorted out the unfavorable second-instance cases that lawyers represented for you. I hope it will be helpful to you.
1. About the correct attitude
1. Is the failure of the first instance due to the judge’s negligence or the lack of his own litigation behavior?
In the author’s opinion, the probability of a judge’s negligence is relatively small. The reason is that the professional division of labor of judges is more detailed than that of lawyers. The number of cases handled by an ordinary judge in a certain field is far more than that of lawyers. . More importantly, judges are exposed to far more trial information than lawyers. Whether it is changes in judicial policies, the formulation of referee standards or trial guidance for certain types of cases, judges will know it at the first time and use it in trial practice. Lawyers are often the last to know in this regard.
In addition, some deviations in the trial thinking of acting judges are also due to the insufficient performance of lawyers to a large extent. As far as the current judicial situation is concerned, first-instance judges have a huge workload and often handle dozens or even hundreds of cases at the same time. During the trial, they pay more attention to "the general direction is correct" rather than "100% accuracy." Lawyers are different. Lawyers can carefully consider the case and consider it repeatedly. To use an inappropriate analogy, grassroots judges are "batch work" and lawyers are "boutique studios". Lawyers are obliged to put forward higher requirements for their agency work.
2. Are you helpless or do you see opportunities?
As the saying goes: The one who laughs best is the one who laughs last. Facing an unfavorable situation sometimes stimulates a lawyer's potential and makes the lawyer treat every future litigation act more cautiously. On the other hand, the opponent may be careless, rest on the credit of winning the first instance, and be unwilling to spend more energy on litigation preparation. In this sense, disadvantages can be transformed into opportunities.
2. About the proxy method
1. Stacked disks. It is necessary to start by repeatedly studying the judgment to find out the reasons for the failure of the first instance. Focus on studying the trial procedures, fact determination and reasoning parts of the judgment, and understand the subtext behind each procedure and each paragraph of text. For example, our team once represented Taobao in an online store transfer case in the second instance. The core dispute in the case was: whether the private transfer of the online store violated the operator's platform rules, and successfully overturned the first instance judgment. At that time, we interpreted three pieces of information captured by the first-instance judgment: 1. The main direction of the first-instance attorney’s defense was that the transfer contract was invalid; 2. The first-instance court only applied simple procedures and closed the case; 2. The reason for the decision was that the transferor and the recipient of the online store Although the transferor privately transferred the online store, it was inappropriate and affected Taobao's credit management system. However, Taobao's rules are binding on the transferor, and the transferee has been operating in good faith and has not harmed Taobao's interests. Taobao Company's interests, therefore this case can be treated as an individual case. Taobao Company should assist the transferee in changing the real-name authentication information in the backend of the store. From this, we found the reasons why Taobao lost the case in the first instance. Firstly: the difference between online stores and physical stores was not fully clarified, so that the judgment simply equated the transfer of online stores with the transfer of physical stores; secondly: the judge did not fully explain the differences between online stores and physical stores. Paying attention to the complexity of legal application and the demonstration effect that the judgment results will have on online shopping platforms, merchants, and consumers, the court only applies simplified procedures to the trial, and has no scruples in stating that "this case will be treated as an individual case," committing "inversion of cause and effect." " error.
2. Reconstruct litigation strategy. Some lawyers believe that persistence is victory, so they repeat the opinions of the first instance in the second instance, wasting the opportunity to make statements in the second instance. In fact, unless the first instance was obviously wrong, repeating the opinions of the first instance in the second instance will often result in "half the result with twice the effort." The reason is that in our country’s judiciary, the opinions of the second instance judge often play a strong guiding role in the direction of the trial. Maybe the judgment opinion of the first instance judge is the opinion of the second instance judge of the previous case. Then, what is the point of repeating it in the second instance? Woolen cloth? Therefore, in the second instance, lawyers must construct an offensive and defensive system with deeper logic and richer levels. Even if they cannot find new theoretical support, they must try to persuade the judge from different angles.
In response to the above cases, we have made the following adjustments to the litigation strategy: 1. Accurately define the online store transfer, which is essentially the online store operating rights, online store reputation level, online store platform service agreement, and online store support provider such as Alipay service agreement *** Transfer, based on the transfer of the online store platform service agreement. According to the provisions of the Contract Law, the general transfer of contract rights and obligations must obtain the consent of the counterparty to the contract, Taobao; 2. Discuss the rationality of Taobao platform rules, online store settings It is flexible and low-cost, but it also lacks the responsibility attributes of an enterprise. The reputation rating system plays a role similar to publicity and is a necessary means of effective supervision. It also plays a guiding and protective role in consumer shopping. Therefore, Taobao prohibits online stores from privately The transfer has its realistic basis; 3. Attack the "case-by-case theory" of the first-instance judgment, emphasize the universality of the case, and elevate the handling results to the level of "public interest", prompting the court to adopt a more cautious approach to cases involving online transaction rules. Deal with attitude.
3. Strive for stronger support from the parties involved. Losing the first instance case is both a risk and an opportunity. Under the pressure of risks, clients will mobilize more resources to invest in the case. Lawyers should strive for the client's support. For example, when it comes to business models, business information, technology, etc., the client's professionals should serve as expert witnesses or agents to make joint statements in court. You can also use a third party to clarify your position, opinions, and attitudes, such as expert testimony, etc., to increase the second-instance judge's attention to the case.
3. About agency skills
1. Facts, substantive law and procedures. American lawyers have a motto: "When the law is beneficial to one's side, speak with the law; when the facts are beneficial to one's side, speak with the facts. If both the law and the facts are detrimental to one's side, then bang on the table." This sentence represents lawyers The maxim applies equally in the second case. That is to say, if you can find support for a new legal point of view, whether it is a new jurisprudence or guidance from the Supreme Court or a higher court, a new discussion by a legal scholar, or a lawyer's inspiration, please hit the law; if you find New evidence, or it is discovered that an important fact was omitted in the original trial, resulting in a change in the characterization of the facts, please check the facts; if neither of them exists, or the case filing procedure seriously violates the case trial procedures, such as the members of the collegial panel and the referee named persons Inconsistency, improper deprivation of the right to debate, etc. , or the interests in the arena are obviously imbalanced and the social effect is not good.
2. Always put the most favorable opinions first. The Civil Procedure Law stipulates that if there are no new facts, evidence or reasons, the court of second instance may not hold a hearing and conduct a written hearing. For attorneys, second-instance appeal opinions are often a dilemma. On the one hand, based on risk considerations, the client requires a comprehensive list of opinions; on the other hand, the client must be logically self-contained to avoid confusion of opinions. But the most important thing is, no matter what, please put the most favorable point first. If there is no way to put logic first, please put it in boldface to ensure that the judge can see it at first glance. Because second-instance judges generally have "intense reading phobia", which are full of long, lengthy appeals or representations with confusing opinions. Second-instance judges are generally "intensive readers" because they are full of lengthy, confusing opinions. Judges of second instance are generally "intensive readers" of confusing appeal pleadings or representations. Therefore, in order to give all Full Bench judges an opportunity to hear your views, please revise the schedule and format of the appeal arguments.
3. Don’t take advantage. Sometimes, lawyers will encounter a situation where the first-instance referee made a mistake on a very small point, but there was no obvious mistake on a big issue of right and wrong. Some lawyers will put all their firepower on judgments involving major rights and interests, while ignoring attacks on minor issues. However, it may be this small oversight that will lead to the loss of the opportunity to turn the situation around. This is because, for cases that may or may not be modified, the second-instance judge generally tends to uphold the first-instance judgment based on judicial authority. But if there are "flaws" in the case that must be changed, the second-instance judge will consider the reasonableness of other judgments.
In short, the representation of litigation cases is like "the landing of a high-rise building", brick by brick, and no carelessness is allowed. If the first instance is unfavorable, the lawyer should work hard to trace the source, exploit strengths and avoid weaknesses, seize opportunities, persist to the end, or take advantage of the situation to maximize the rights and interests of the client.