The lawyer's pre-trial preparation work mainly includes asking to understand the case, investigating and collecting evidence, sorting out the facts of the case, analyzing the legal relationship, searching for legal provisions, refining the key points of the defense, cataloging the evidence, and communicating before the trial. Waiting for work. It can be seen that lawyers have to make a lot of preparations before the trial. After all, lawyers must fully understand the actual situation of the criminal case before defending the criminal suspect.
What are the main pre-trial preparations for lawyers?
1. Ask to understand the facts of the case
Clearing the facts of the case is the basis and prerequisite for the lawyer's representation. Listening to the statements of the parties is the most direct way for lawyers to understand the facts of the case.
Learn about the case from the parties, usually through face-to-face communication. The scope of understanding the case situation includes: subject situation, causes of disputes, basic facts, procedural status, demands of both parties, etc. It must be comprehensive, but also focused and targeted, and actively guide the parties to communicate effectively around the key points of the case through active questioning.
To learn about the case from the parties involved, you should not only listen to what they have to say, but also review relevant information. The two are combined with each other and performed simultaneously to improve communication efficiency. If necessary, a list of information will be prepared and the parties concerned will be required to provide it within a time limit.
2. Investigate and collect evidence
On the basis of inquiring about the case, lawyers should conduct a comprehensive investigation and collect relevant evidence according to the needs of handling the case. The scope of investigation and evidence collection includes: court litigation files, corporate industrial and commercial files, relevant contracts, real estate registration information involved in the case, relevant government documents and files, relevant witness testimony, defendant’s property status, on-site photos and other evidence materials. In short, the lawyer must know what the client knows; the lawyer must also know what the client does not know. All facts and questions related to the handling of the case must be proven or falsified by evidence and materials.
3. Sort out the facts of the case
Lawyers should classify and arrange the materials collected during the investigation, and sort out the facts of the case based on the statements of the parties. The basic method is: chronologically record the facts of the case in chronological order, focusing on the basic facts involved in the dispute; in handling major and complex contract dispute cases, the content of the contract (especially the key clauses) should be deconstructed and combined with the actual performance , list comparative analysis; when handling second instance cases, the facts found in the first instance should be summarized, combined with the statements of the parties and relevant evidence, to clarify unobjectionable facts, objectionable facts and reasons for objections.
4. Research and analysis of legal relations
After clarifying the facts of the case, it is necessary to conduct an in-depth analysis of the legal relations of the case. The analysis of legal relationships should focus on the nature of the legal relationship, rights and obligations, liability for consequences, etc., focusing on the rights or defenses enjoyed by the parties. On the basis of the analysis of the legal relationship, the focus of the dispute is summarized based on the pleading claims of both parties and provides problem guidance for the subsequent legal search.
5. Search for legal provisions
On the basis of determining the nature of the legal relationship and the focus of the dispute, comprehensively search for relevant legal provisions. The legal search should cover all legal provisions related to the handling of the case, including the legal provisions and related legal provisions on which one's own side or the other party's claims are based, including laws, judicial interpretations, administrative regulations, local regulations, departmental rules, etc., all must be searched . And download relevant legal provisions and organize them into "Relevant Legal Provisions" for use in case research and court proceedings.
6. Search for similar cases
China is not a case law country. However, according to Article 7 of the Supreme Court's "Regulations on Case Guidance Work" (Fafa [2010] No. 51): "The guiding cases issued by the Supreme Court shall be referred to by the people's courts at all levels when hearing similar cases." In addition to this Except for this, the gazetted cases of the Supreme Court or other cases do not have the significance of reference application in principle. However, the judgment opinions and reasons of similar cases can be used as a basis for understanding the law and persuading the judge.
The search for similar cases should be conducted in the order of Supreme Court Guiding Cases - Supreme Court Gazette Cases - Other Supreme Court Cases - High Court Cases - Intermediate Court Cases. Generally, there is no need to pay attention to and cite grassroots court cases unless they are selected as guiding cases, gazetted cases or outstanding cases in the court system.
The number of similar cases retrieved should be sufficient, including more than 5 general cases and more than 10 major and difficult cases.
Not only should you collect cases that support your own point of view, but you should also pay attention to collecting cases that contradict the referee's point of view.
The retrieved similar cases should be downloaded in full, focusing on the judgment results and their opinions and reasons, and compiled into a "Comparative Analysis of Similar Cases" to study the legal application, judgment reasons and results of similar cases, and compare them with The similarities and differences in this case provide a reference for the agent in this case.
7. Search for legal opinions
For major and difficult cases, or when there is a dispute over the understanding and application of a certain legal provision, it is necessary to search for relevant legal opinions, including the doctrines of the justices and academic opinions. . "Justice doctrine" 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 Supreme Court's responses to individual cases, and relevant books or articles written by the Supreme Court justices. “Academic views” refer to the views of legal scholars. Neither the justice's doctrine nor academic opinions can be directly used as a basis for judgment, but they play an important role in interpreting the original meaning of legislation, enriching agency ideas, and finding support for opinions.
8. Refining the key points of the defense
Based on the review of facts and legal analysis, it is necessary to refine the key points of the defense to provide guidance for the trial. When representing the plaintiff, a written representation key point shall be formed, summarizing the main representation viewpoints and their factual and legal basis; when representing the defendant, a written defense opinion or defense key points shall be formed, summarizing the main defense viewpoint and its factual and legal basis. At the same time, we should make prejudgments and response plans for the other party's views and possible rebuttals and questions, so as to know ourselves and our enemies, be both offensive and defensive, and advance and retreat in an orderly manner.
9. Arrange the evidence catalog
Category, select, and organize the evidence materials collected during the investigation around your own factual claims, organize and form an evidence catalog, and explain the number and name of the evidence one by one , source, page number, proof content, etc., and bind the evidence materials into a volume. Evidence classification should be divided according to different factual claims. The selection of evidence should focus on the focus of the dispute and the defense claims. One's own claims should be supported by corresponding evidence. There should be no contradiction between the evidence cited and the claim, and there should be no contradiction between the evidence and the evidence. The arrangement of evidence should be sorted according to the chronological order, logical relationship, importance and other internal connections of events.
10. Pre-trial communication
Before the official trial, there is still a lot of communication work. For example: Communicate with the court to understand the other party’s opinions, evidentiary materials, investigation and evidence collection or appraisal and other related applications, understand the judge’s focus, and clarify whether it is necessary to exchange evidence or apply for an extension of the hearing; communicate with the client on the key points of the trial, verify and confirm List of evidence and evidentiary materials, inform the preparation of original evidence; communicate with one's own witnesses before trial, understand the content of the proposed testimony, and explain the witness's obligations and responsibilities.
The preparations made by lawyers before the trial are all to be able to better defend the defendant or criminal suspect in the case after the trial. Attorneys in civil or criminal cases, in each case, Each stage has its own things that should be done. Criminal suspects and relevant personnel involved in the case must explain the cause and effect of the case to the lawyer in a realistic and realistic manner, so that the lawyer's work can be facilitated.
Legal basis:
Article 125 of the "Civil Procedure Law of the People's Republic of China" The people's court shall serve the complaint and file the defense before filing the case. A copy of the complaint shall be sent to the defendant within five days from the date of receipt, and the defendant shall file a defense within fifteen days from the date of receipt. The defense statement shall state the name, gender, age, ethnicity, occupation, workplace, residence, and contact information of the defendant; the name, residence, and contact information of the legal person or other organization and the name, position, and contact information of the legal representative or principal person in charge. The People's Court shall send a copy of the defense to the plaintiff within five days from the date of receipt of the defense. If the defendant fails to submit a statement of defense, it will not affect the trial of the People's Court.
Article 133: The people's court shall handle the cases accepted by the People's Court according to the circumstances of the case: (1) The parties have no disputes and meet the conditions stipulated in the supervision procedure. If the dispute is resolved, it may be transferred to the supervision procedure;
(2) If mediation is possible before the court session, mediation shall be adopted to resolve the dispute in a timely manner;
(3) Based on the circumstances of the case, it is determined whether the simplified procedure or the Ordinary procedures;
(4) If a court hearing is required, the focus of the dispute shall be clarified by requiring the parties to exchange evidence.