This article will discuss such a legal instrument as judicial debate. I will try to convey to readers the importance of this stage of the trial and highlight all the nuances. However, if after reading the article you still have questions that require clarification, you can always get answers to them in the discussion under the article, or by writing me a personal message.
Let me start with a definition of what judicial debate is.
What are legal pleadings?
Judicial debates are mentioned in only one article of the Civil Procedure Code of the Russian Federation, while the terse legislative language does not give the reader the opportunity to understand the full importance of this stage of the consideration of the case in the courtroom:
Code of Civil Procedure of the Russian Federation Article 190. Judicial debates
1. Judicial debates consist of speeches of persons participating in the case and their representatives. In judicial debates, the plaintiff and his representative speak first, then the defendant and his representative.2. The third party, who has declared an independent claim regarding the subject of the dispute in the initiated process, and his representative in the judicial debate speak after the parties and their representatives. The third party, who has not made independent claims regarding the subject of the dispute, and his representative in the judicial debate speak after the plaintiff or defendant, on the side of one of whom the third party participates in the case.
3. The prosecutor, representatives of state bodies, local government bodies, organizations and citizens who have applied to the court for the protection of the rights and legitimate interests of other persons speak first in the judicial debate.
4. After speeches have been made by all persons participating in the case and their representatives, they can make remarks in connection with what has been said. The right of the last remark always belongs to the defendant, his representative.
Let me translate into human language: the judicial debate is the summary, final stage of the trial. At its core, debates are speeches by the participants in the process, summarizing and summarizing the information they presented to the court during the trial, as well as emphasizing the importance of the evidence presented by the parties to the court. And the importance of judicial debates is very great.
Sample remark in arbitration court example
Recommendations of a lawyer for the plaintiff and defendant 1. Dress neatly; the attitude towards a carelessly and sloppily dressed person may be appropriate. At the same time, you should not look extravagant. 2. Don't be outraged that the meeting may start two hours late.
This happens not only in Russian courts. We will also have to come to terms with the fact that meetings are often postponed. 3. Mobile phones should be turned off before entering the meeting room; it is also not recommended to read newspapers or talk, including whispering. 4. You need to behave modestly and simply in court.
You can’t argue with the court, and you can’t contradict it either. You need to treat a judge as your boss. Interrupting the judge and other participants in the process is prohibited. 5. The court must be addressed with the preliminary “Dear Court”, despite the fact that there is only one judge.
Explanations must be given while standing and addressing the court.
Attention However, judges do not always adhere to this tactic of conducting a preliminary court hearing, and their behavior may differ greatly from each other.
This is especially noticeable at meetings in different regions.
All obstacles to further advancement of the consideration of the arbitration case and the possible postponement of the consideration of the case for a certain period are considered.
Important How to speak correctly in court At an interview (preliminary court hearing), the judge may also oblige you to submit any documents to the court hearing. You can ask the judge at this stage to help you collect evidence, for example by making inquiries to various organizations.
If your plaintiff missed the statute of limitations and did not ask for its reinstatement, the missed deadline must be declared at the preliminary court hearing, since the court may already at this stage decide to refuse the plaintiff’s claim and not consider the case on the merits.
In court, you will have to say much more.
I observed an example of a competition between English lawyers in the Strasbourg court at a hearing on the Yukos corporate case - the hearing on the company’s complaint about the expropriation of property took place on March 4, 2010, and a decision has not yet been made. The YUKOS side was represented by English lawyer Piers Gardner, who filed the complaint in April 2004, but his presentation was unlikely to be successful.
A counterclaim is an independent claim. It is stated by the defendant. A counterclaim is one of the defenses used in the proceedings. It is considered in conjunction with the original application.
It should be noted, however, that such a tool as a counterclaim in the arbitration process, the presentation procedure, the conditions for acceptance of which provide for the partial or absolute exclusion of the original claims, cannot always be used in practice.
When filing a complaint with a higher court with a request to resolve a dispute, you must always be guided by the powers of the court.
In the final part of this article, I would like to note that the work and performance of a lawyer in explanations, debates, remarks, and so on is perhaps the most interesting and responsible activity of a lawyer in representing the interests of his client in various courts.
The judicial speeches of a lawyer are a separate part that has not yet been studied by science, although it seems that everything has already been said, starting from the old eminent Roman orators to the speeches of the best lawyers of our days. Existing collections contain numerous striking examples of this art of lawyers.
A lawyer is obliged to constantly improve not only his professional legal knowledge, but also to develop psychological issues. If the court does not comply with these requirements, the lawyer will not be able to prove this, since a protocol is not kept in this case either.
There are only one recommendations - all actions of a lawyer or representative in the court of first instance should be carried out only in writing, this action will be the key to a correct and timely response by a participant in the process to this or that procedural behavior of the arbitration court.
And so, let's consider the preparatory part as the most important stage of the work of the arbitration court of first instance. In this part, the court considers all the conditions for considering an economic dispute on the merits of the claims.
After establishing all the conditions for considering the case, the court proceeds to examine the evidence presented by the lawyer, followed by debate between the parties.
She drinks water in large sips, puts the glass on the table, and I feel how her internal tension begins to be transmitted to me. “You first calm down, and then we’ll talk,” I said. “Okay,” she said in an excited voice.
Several minutes of absolute silence passed... “I can talk,” she said in a slightly agitated voice. “Then tell me what happened to you {q},” I asked. that happened to her daughter. That's what she told me. Her daughter was in an accident.
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The daughter was hit by a car while she was standing at a bus stop and waiting for a minibus.
https://www.youtube.com/watch{q}v=oE-lLHRnVlw
My daughter was lucky that a drunk driver flew into a high curb at high speed, which took the brunt of the blow, and then the car spun... After a short silence, she continued: “I defended the interests of my imperfect daughter in the district court of Chelyabinsk, without a representative.”
Independent SPEECH in the district COURT of the city.
The defendant correctly took advantage of this pause from the procedural opponent and in his response asked the court to still pay attention to the fact that when making its fair ruling on the case, it would pay attention to the fact that the plaintiff’s failure to present seals as the main evidence to the trial is rude violation by the plaintiff of the requirements of the Instructions.
The court ruling was announced minutes later, by which the court rejected the plaintiff’s claim only on the basis of his failure to comply with the Instructions for sealing the goods. The arguments of a lawyer in an arbitration court differ from the speeches of a lawyer in others, such as criminal and civil proceedings. This is due to the nature of the arbitration process.
Why are debates between the parties necessary?
As paragraph 1 of Article 67 of the Code of Civil Procedure of the Russian Federation states:
The court evaluates evidence according to its internal conviction, based on a comprehensive, complete, objective and direct examination of the evidence available in the case.
And a judge, as you know, is also a human being and nothing human is alien to him. Therefore, the purpose of speaking in judicial debates is, first of all, to help the judge form the correct point of view and internal conviction that the speaker is right.
When speaking in court debates, a participant in the process must not only analyze the evidence presented by both sides, but also give legal justification for the arguments he has given. It is necessary to summarize everything that was said earlier in the process, supported by references to the norms of law and statistics of decisions made on similar issues by higher courts. You need to unobtrusively draw the judge’s attention to every mistake, every mistake of your opponent, and question every argument he states. But at the same time, you need to speak only to the point, drawing the court’s attention to how important your every word is for making the right decision in the case.
Debate between the parties is a key stage in assessing the evidence available to the court. Often it is the debate that becomes the basis for the court's decision. This stage is especially important in cases where the evidence presented by the parties is not enough to make a decision and it is noticeable that the judge has doubts - then he will largely be inclined to rely on the opinions of the participants in the process.
Recommendations from professionals
To win in a civil or any other case, you can study a clear example of how debates proceed at a court hearing. Based on the successful speeches of others, it will be easier to compose a speech for yourself. Experienced lawyers recommend drafting it in such a way that the speech actually represents a draft court decision. What is meant is not so much its description as its motivation.
The lawyer’s professionalism plays a significant role in the debate. On his part, legal analysis is mandatory. It should be:
- verified from a logical point of view;
- be based on legislative acts and legal norms.
The lawyer examines the evidence that was presented during the trial. He also looks for weak spots in his opponent’s arguments and reinforces his own position.
Most often, problems with speech arise in arbitration or civil proceedings, since the judge does not give the parties time to prepare. But it should be recalled that all participants in the case have the right to apply for a break. Even if it is only a few minutes, you will already be able to concentrate and think about how to structure your speech.
How to behave during court hearings
It is important to remember that the debate is for the judge, and not for the other participants in the process. Therefore, you need to address only the judge, demonstrating calmness, confidence in your rightness and not giving the judge the opportunity to switch attention to your opponent.
Therefore, as soon as the judge announces the transition to judicial debate and gives you the floor, we stand up and begin our speech, without rushing, without fussing and without losing visual contact with the judge.
The speaker’s goal is to completely capture the judge’s attention and try to substantiate the need to satisfy your stated demands.
At this stage, the communicative qualities of the speaker are very important, since a tongue-tied, stammering and searching for words speaker does not inspire confidence. It should be pleasant to listen to you, your words and manner of expressing your thoughts should not cause rejection, and your inner conviction that you are right should be conveyed to others.
You should begin your speech by addressing the judge: “Dear court...”. Then you should state your proposal to satisfy your stated demands (or refuse to satisfy the demands of the other party) and carefully argue your position. And end with the phrase: “I ask that my speech be reflected in the minutes of the court session.”
Arbitration court: a simple educational program in the face of harsh reality
Info
How to speak correctly in court At an interview (preliminary court hearing), the judge may also oblige you to submit any documents to the court hearing. You can ask the judge at this stage to help you collect evidence, for example by making inquiries to various organizations.
If your plaintiff missed the statute of limitations and did not ask for its reinstatement, the missed deadline must be declared at the preliminary court hearing, since the court may already at this stage decide to refuse the plaintiff’s claim and not consider the case on the merits. In court, you will have to say much more.
Topic: features of the presentation of the representative of the plaintiff in the arbitration process
Do not object to reasonable evidence that is not in your favor, find an explanation for it that would reconcile this evidence with your position. · Don’t bother too much about refuting something that is obvious to everyone as improbable. ·Carefully examine the facts recognized by the enemy, use them for your own purposes.
To ensure that the audience does not get tired or distracted during the speaker’s speech, it is recommended to read less and speak more without paper, emphasizing the most significant words. The speech of a person speaking, in contrast to a person reading from a text written in advance, is more lively, and therefore makes a greater impression on the audience.
