Debating skills with the judge in court

What is the normal state of mind of a judge during a court session? The judge does not want to sit in court for a long time. He hopes that the trial can proceed in an orderly manner according to the established rhythm. He does not want the trial process to be loose and delayed, and he does not want extraneous matters to arise during the trial. Other unexpected circumstances. Below is a collection of tips on debating with judges during court trials that I have collected for everyone. You are welcome to learn from them.

Errors, taboos and blind spots in criminal court debates

1. Three major mistakes in court debates

Mistake 1: Being blind with the judge Debate

In the practice of court trials in our country, the judge is not a party to the court debate, but the judge is the presiding officer of the court debate. This is the role and function of judges that we should clearly understand. Practice has proved that although debating with a judge may gain some so-called lawyer's dignity, it is often at the expense of the client's interests. Sometimes, due to the toughness of lawyers, defendants are sentenced to excessive sentences. Sometimes, the defendant and the defendant's family members have carefully weighed the pros and cons and carefully considered the decision to terminate the commission of a strong lawyer. Of course, exceptions cannot be ruled out. For major injustices, false cases, and wrong cases, if the presiding officer turns a blind eye, the defender must argue hard based on the reasons, persist to the end, and a strong defense is also a good idea.

Mistake 2: Ignoring the judge’s questions

According to the principles of trial psychology, the judge is the referee, and the purpose of court debate is to persuade the judge to adopt his or her effective defense opinions. Since in our court hearing system, judges have the power to proactively investigate in court, they will take the initiative to supplement some facts and evidence that they consider to be very important, controversial, or that have not been clarified and that need to be strengthened to provide free evidence. These questions reflect the judge’s concerns to a large extent. From these concerns, combined with the controversial points of the case, we can even judge the judge’s possible tendencies. Therefore, during the trial, the defender should always pay attention to every question asked by the judge like a radar. Just like a driver driving a car, when we reverse the car, the on-board radar lights up red and beeps non-stop. If you don't step on the brakes, you will inevitably get scratched or crashed.

In short, accurately recording and quickly and efficiently analyzing the judge’s court questions, reverse reasoning, and capturing the judge’s trial thinking is also one of the concentrated expressions of the defender’s comprehensive quality.

Mistake 3: Rhetoric without focusing on the key points

Returning to the topic, what is the core expression of the lawyer during the court debate stage? I always think that at this stage, the core task of the lawyer is Let the judge hear clearly what the core issue you want to express is, without having to rush to discuss the issues (points of view) you raised. Many times, the defender does not even refine the questions accurately, does not focus on the problem, and does not understand the root cause of the disease, but starts to talk rhetorically and reads from the script for 10 minutes. It's like a long-distance running game. Before the whistle blows, he has already run 300 meters. Why don't he come back and run again? In other words, the question has not been raised, but is eager to discuss? Die before leaving the mission. Sometimes, learning to let bullets fly for a while in court is also a concentrated expression of the professional quality of defense lawyers.

In most criminal cases, after lengthy court proceedings, most of the time, the judges are actually "burned out". Moreover, we have almost no substantive meaning in pronouncing the verdict in court. Therefore, the most important thing in court debate is to let the judge understand the issue you raised and think from his heart that this may be a problem. If he gets the question you raised and initially acknowledges your question, then your argument will be more powerful and easier to accept, making the judge’s eyes brighten? Effective defense and influence the referee.

2. Four Taboos of Trial Defense

Taboo 1: Hypnotic Defense

I noticed an interesting phenomenon in court: During the court debate, Sometimes the defender just reads out the pre-printed defense statement according to the script, and then there is nothing more. Therefore, I personally believe that only reading out written defense statements during the court debate phase cannot achieve the proper defense effect, and it cannot even be called a debate in the true sense. First of all, it is difficult to attract the judge by simply reading out the defense statement. Observing the court hearing performance, we found that most judges were absent-minded when the defender lowered his head to read the defense statement. When such reading lasted for more than half an hour, some judges even fell asleep.

The goal of court defense is to persuade the judge, and the defense method of hypnotizing the judge by reading out the defense statement should be avoided as much as possible.

Secondly, simply reading out the defense statement cannot fulfill the function of a court debate. According to the current court hearing procedures, the production and cross-examination of case evidence and the investigation of case facts should be completed in the court investigation stage. The function of the court debate stage is mainly to summarize the facts that have been clearly investigated and on the basis of which, the nature of the behavior and the legal Comments apply. If you do not put forward defense opinions based on the court investigation, but simply read out the written defense prepared before the court, the court debate will not be able to summarize and analyze the court investigation. The court debate and the court investigation are completely different, and the court debate will be reduced to It's just a program to complete prescribed actions. Therefore, the new generation of defenders should avoid reading their defense statements from the script during court arguments.

If some cases involve very complex theoretical elaboration or evidence analysis, the lawyer can submit a detailed written report to the judge out of court. During the trial, the relevant opinions can be refined and presented. Try to do as much as possible. Easy to understand. Under the premise that lawyers can create a trial effect in this way, the judge will be willing to listen, like to listen, and listen deeply. It will be easier for him to accept the lawyer's point of view, and only then will he be able to carefully think about the questions raised by the lawyer.

Taboo 2: Long speeches

We seem to need to reflect on a problem in depth, or ask more experienced judges outside the case: why do judges often interrupt lawyers’ speeches? Situation? The judge's answer may be as follows: answering something that is not what the question was asked; repeating a point that has already been stated; saying more than five sentences without getting to the topic. In other words, all expressions of criminal trial defense must revolve around the following core elements: first, focus (what is the problem); second, efficiency (short delivery); third, clarity (effective delivery). In short, all techniques are designed to clearly convey the issues you want to express to the audience (judge) in the shortest possible time.

Regarding this, identifying people should consciously train the following way of thinking? Forge and carve the self: If you are given ten minutes, you have to think clearly about what you think and how you should express it in these ten minutes; if given If you have the same question for five minutes, you have to think clearly about how you want to express it in these five minutes. Therefore, if you are given different time for the same problem, you will have to express it in different ways. At this time, the issue of "priority" will inevitably be involved. The most important thing, the most core thing, must be expressed with the highest priority, the most concise and the most effective way. Avoid long speeches, like an old lady's footcloth? It's smelly and hard. If the judge doesn't interrupt you, it means the judge can tolerate it. If you think about it from another person's perspective, how can you effectively defend yourself?

Taboo 3: Attack in an all-out manner

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During the trial debate, the defender must not only conduct comparative analysis, judgment, and demonstration in court based on the favorable and unfavorable evidence accurately extracted before the trial, because the unfavorable evidence is the prosecutor’s argumentative material, but it must also be comprehensive and accurate. Refining! Further, the defense lawyer must be keenly aware of the core evidence and key evidence. What are the key evidence in the dossier? They must focus on attacking, thinking, and repeatedly scrutinizing, because sometimes a brick or a few bricks are removed. The defense lawyer does not need to tear down the entire wall. Long talks and comprehensive coverage sometimes drown out and dilute the key weaknesses. Of course, criminal defense often has very few fatal blows, but the "core combination boxing" is our "technical manifestation". It is true that this requires the defense lawyer's keen sense of smell and strong and thorough reasoning and argumentation capabilities.

In short, in judicial practice, 95% of criminal cases do not require a comprehensive attack? The defender does not need to tear down the entire wall. The defender only needs to refine the disputed issues, set keywords around the disputed issues, and demonstrate with precise firepower (any facts that are not related to the keywords will be ignored by the court, and any discussion that cannot be quickly retrieved by the court has the risk of being ignored). Therefore, lawyers' court arguments must focus on "controversial issues". This is a prerequisite for improving the court's persuasiveness. It is not necessary to cover everything and attack in an all-round way.

Taboo 4: Excessive sensationalism

The court is a place of reasoning, and rational speech should be the main focus. "Emotional defense" and "emotional expression" should not be confused. The two are not the same concept. The "reasonableness" in "reasonable defense" refers to "common sense", that is, the normal emotions of ordinary citizens. In essence, "reasonable defense" is still rational speech.

Too much emotional expression will make the judge feel disgusted and feel that the lawyer is putting on too much of a show, thereby interrupting the lawyer's "performance". Therefore, defenders must make precise judgments and study individual cases, and the proportions of evidence, facts, law, and reason must be well arranged and coordinated so that they have flesh and blood, a skeleton, and a soul.

3. Three big blind spots in court debates

Blind spot one: Role misplacement

For example, some defenders will praise the evidence during the cross-examination stage and say ?This evidence exactly proves that my client’s so-called cross-examination refers to a negative opinion on the existence of this evidence? Is the evidence qualified? Static argumentation analysis; using this evidence to prove a certain fact is the use of evidence? How? The dynamic use of ? should be published during the court debate stage. It is not surprising that the judge will interrupt and remind the defender: You heard clearly, and now I am asking you if you have any objections. This is one of the blind spot errors in role positioning.

Blind spot 2: The second round of defense

Some defenders think that only one round of defense is enough, or they like to repeat the defense opinions they think are important many times, or in the second round of defense The second round of arguments was repeated again to attract the judge's attention. Judges generally prohibit repeated expressions because the truth does not need to be repeated ten thousand times. If you only say it once, it is also the truth. Unless what you express is false? It is important to balance the efficiency of the court hearing with accurate expression.

It is more important to carry out detailed, systematic and structured analysis and refutation of the focus of controversy that emerged in the first round. The defender was unable to provide targeted counter-arguments and argument analysis to the more specific and higher-level second round of defense, which seemed to be a waste of time and performance.

Blind Spot 3: Focus of Dispute

Every minute and second of a court hearing is precious. Defenders should not conduct arguments away from the focus of controversy and focus on the main line. In practice, defense lawyers are often narcissistic and self-confident, pushing forward in accordance with their own established direction and main line, and being impassioned, unaware that they have unknowingly deviated from the core focus of the court investigation? Summary of judges, prosecutors, and defenders The focus of controversy is not intertwined? Two skins, wouldn't it be absurd, absurd and sad?

Although the court debate is a debate, it is not a fancy debate competition on a university campus. You must firmly grasp the main direction of attack, do not deviate from the topic, and grasp the core minefields and weak points of the indictment? Charges Debate the defendant’s criminal facts, evidence and legal application. There is no need to debate the minutiae that are irrelevant to conviction and sentencing. In other words, although many criminal cases are relatively complex and the files are vast, as long as the defenders think about the controversial focus, stay up all night, hit the bull's-eye, read the files, and carefully salvage the "soul evidence system" in the "sea of ??files", you will find that it really affects the conviction and sentencing. There may not be many plots. In short, criminal defense is like chess. If you catch the veteran, you win. As for how many pieces are left, it is meaningless. Furthermore, defense lawyers must have the skills to accurately refine the focus of controversy before and during the trial. The focus of controversy extracted must be consistent with the focus of controversy in the judge's opinion. It can be said that coincidence is the real skill of defense.

Finally, the eight-character purpose of criminal defense is explained: understanding, conscience, professionalism, and honesty. The order of these 8 characters cannot be reversed or confused. Understanding is mutual and on both sides; conscience is one-sided, but it is the most important thing. If a lawyer has no conscience, he is like a black-hearted doctor. The more skilled the doctor, the greater the harm. Professionalism is one-sided, and professionalism is where we go all out. Good medicine; frankness also comes from both sides. Only when both parties have symmetrical information and candid information can they win the trust of the other party and convince the third party, so that they can attack accurately and defend accurately? Because our goals are the same, and we never want to let the family members regain their freedom. The defender plunges into the battle of the next case? Defending life and shouting for freedom.

Talking about how lawyers participate in court hearings from the perspective of a judge

Know yourself and your enemy. Before representing a client in a litigation trial, a good lawyer must first understand the mentality of the trial judge. The mentality of judges mentioned here refers to the mentality of ordinary judges who hear cases from a fair standpoint under normal circumstances. Abnormal mentality is not included here. Understanding the trial judge's mentality does not mean asking the lawyer to figure out the judge's thinking on the case, but it means asking the judge what he wants the lawyer to do during the trial.

The normal state of mind of a judge during a court session

What is the normal state of mind of a judge during a court session? The judge does not want to sit in court for a long time and hopes that the trial can proceed in an orderly manner according to the established rhythm. We don’t want the trial process to be loose and protracted, and we don’t want other unexpected situations to arise during the trial. It should be said that this is a normal mentality for judges who sit in court all year round. Trial is an often repeated daily work in a judge's career. His daily job is to mechanically repeat these procedures in court, and these The trial procedure is indispensable. Of course, he hopes to complete the procedure as soon as possible and get to the point as soon as possible. He hopes that the lawyer's speech during the trial can directly state the point of view, the theme is clear, the argumentation process is concise and clear, and unnecessary empty words are reduced. The last thing a judge wants to see is to answer questions in a roundabout way, and make long speeches that seem eloquent. There are a lot of ancient and modern Chinese and foreign legal discussions, but few of them are related to the focus of the case. Some lawyers know that what they say is irrelevant nonsense. , but in order to make the client feel that he was representing the case with care and responsibility, he spared no effort to write a long representation and read it impassionedly in court. On the surface, it pleased the client, but in fact it was meaningless.

How to be a qualified litigation lawyer

Young lawyers who are new to the legal profession should not imitate the behavior of barristers and famous lawyers, but should work conscientiously on cases. Of course, this is not to say that barristers are not good, but that barristers and famous lawyers all started working hard in the past. Now they have the foundation of many years of hard work. They no longer need to deal with small cases like in the past. Some specialize in large-scale economics. Some cases specialize in major criminal cases, and some have moved into non-litigation fields. It is difficult to devote all their energy to ordinary cases. Even if a friend comes forward to represent an ordinary small case, many things are done by assistants.

To be a qualified litigation lawyer, you must first have a professionalism. This professionalism is reflected in doing every case in a down-to-earth manner, fighting for the rights that the client deserves, and allowing the client to I feel that you are truly serving his interests and the agency fee is worth paying. Only by spreading the word of mouth and winning the client's trust can you take on more cases. Secondly, you must have professional legal literacy. Dedication is only the basic condition for being a qualified litigation lawyer. To be truly qualified, you must also be familiar with and master the relevant laws and regulations, and have a spirit of research. The legal literacy mentioned here does not simply look at whether you have a master's degree or a doctorate in law, or whether you have published academic papers, but rather the ability to apply the law you master into practice, which is the usual combination of theory and practice. ability.

1. Pre-trial

Whether the pre-trial preparations are sufficient is the key to whether the lawyer can handle the trial freely.

The first step is to understand the basic situation of the case? This is the basic work that lawyers need to do before participating in the trial. Before the first-instance trial, you must understand the basic facts of the case. If you do not participate in the first-instance representation and directly participate in the second-instance representation, you must read the files before the trial to understand the first-instance trial situation, so as to avoid repeating the issues that have been resolved in the first-instance trial during the second-instance trial or wasting energy by repeatedly investigating the facts.

The second step is to sort out the focus of disputes in the case based on the known facts of the case and your own understanding of the law. Judges need to sort out the focus of disputes, and lawyers should represent cases. Of course, they must also clarify what is the main dispute in the case they represent. Only by finding the right focus of dispute can they do the necessary investigation in a targeted manner. Focusing on the focus of dispute, the facts that cannot be determined should be investigated. An investigation of an investigation, an application for an investigation order, and an application for court investigation. The second step of pre-trial work actually best reflects the role of lawyers. For example, in some cases, lawyers will guide the parties to apply for court evidence preservation based on their own legal understanding. If the preservation is not done in time, evidence that is beneficial to the parties may be transferred. , loss; the lawyer guides the client to apply for litigation preservation or pre-litigation preservation as soon as possible so that the party's substantive rights can be protected. This is the role of the lawyer. Wrong guidance by the lawyer to the client will lead to the loss of the party's substantive rights.

The third step is to consider the questions that the judge may raise about the facts during the trial from a fair perspective, so that targeted answers can be made during the trial without being confused about all the questions.

The fourth step is to complete the court trial representation opinion. With the foundation of the previous three steps, it is necessary to grasp the core issues and complete the court trial representation opinion concisely and comprehensively based on the basic situation of the case that is understood.

2. In court

Trial is an examination room that reflects the attorney’s level of representation and tests the adequacy of pre-trial preparations. The basic attitude requirement for lawyers participating in court hearings is to be attentive, and the professional requirements are to be familiar with the trial procedures, answer questions concisely and clearly, ask questions around the facts of the case, debate opinions closely to the focus of the dispute, and have clear opinions and not go off topic.

--Concentration is the basic attitude requirement for lawyers to participate in court trials. Focus not only reflects the lawyer's respect for the judge, but also reflects the lawyer's attention to the matters entrusted by the client and his serious attitude towards doing things. Some lawyers did not know what they were thinking during the trial. They did not listen to some matters read out by the judge during the trial, and they did not understand the answers to some of the judge's questions. When some lawyers asked the judge whether they had any objections to the facts ascertained in the first-instance judgment, they answered that they had objections, but they were talking about the objections to the court's finding of facts in the judgment, not to the ascertained facts themselves. It shows that he failed to hear and understand the judge’s questions clearly.

--Familiarity with court trial procedures is the basis for lawyers to cooperate with the court and complete the trial procedures at a normal pace. The so-called familiarity with court trial procedures does not require lawyers to memorize all the procedures stipulated in the Civil Procedure Law, Criminal Procedure Law, and Administrative Procedure Law, but requires lawyers appearing in court to participate in court hearings according to the court hearing process. Some lawyers follow their own ideas during the trial no matter what stage the trial is at. During the court investigation stage, the judge requires cross-examination of the evidence presented by the other party. At this time, he only needs to state whether he approves or disapproves the other party's evidence around the authenticity, legality and relevance of the evidence, but he always has to refute the other party's evidence first. evidence, eager to express the debate opinions that they have prepared, and when it comes to the debate stage, they remember that they have questions to ask the other party, and the opinions expressed in the debate are all the opinions that have been stated before, without any new ideas. This is a lack of understanding of the court trial procedure. Familiar performance.

--Answer the question concisely and clearly. To the court’s questions about the facts of the case or the other party’s questions, answer straightforwardly, yes, yes, no, no. If you are unclear, please do not explain clearly. Do not:

　(1) Prevent the client from preventing himself Answer some questions related to it. The parties involved in the dispute know best about the process of the dispute. Some questions can only be answered by the parties themselves. However, some lawyers are worried that the parties’ answers to some questions will have an adverse impact on the court’s fact finding, so they will stop them in court. The client answers and requires an attorney to answer. This will make the judge suspicious and think that the lawyer is concealing some facts. The solution is also very simple? Lawyers should fully communicate with the parties on relevant issues before trial.

(2) The answers to questions related to the facts of the case are ambiguous and specious.

(3) You must trust your understanding of the facts of the case and the application of the law, and do not blindly guess the trial intention of the judge's questioning. In some court trials, the judge asks one party more questions, and the lawyers will guess which side the judge may favor. I often hear some lawyers say after the trial that the other party could not answer the questions asked by the judge in today's trial. We also put The other party asked. It seems that the judge's decision will be in our favor. I can only laugh at this conjecture.

--Ask questions around the facts of the case. All questions asked in court should be relevant to the facts of the case. The purpose of asking questions is to make the facts of the case clearer and to restore the truth of the case through detailed questions and answers. Don't be creative and ask roundabout questions for reasoning. It's a waste of everyone's time. Today's Chinese law is based on evidence to decide the case, and you won't believe in so-called reasoning to determine the facts of the case; and don't ask questions that involve the privacy of the other party or that have some connotation. Insulting questions and such a confrontational approach will only cause unnecessary resentment on the part of the judge.

--The debate opinions are closely related to the focus of the dispute, and the views are clear and do not go off topic. Court debates best reflect a lawyer’s legal practice skills. Everyone knows the legal provisions. The real ability of a litigation lawyer is to combine the knowledge of law and trial practice, put forward his own clear views around the focus of the dispute, and use the facts that have been proven in court. and relevant legal provisions to prove your point of view.

Just discuss the matter and explain the point of view simply and clearly. There is no need to make a grand statement and list a lot of ancient and modern Chinese and foreign laws and cases.

? Laymen watch the fun, experts watch the door? Court debates are not debate competitions. There is no need to be sharp and tit-for-tat. When the judge asks, he will clearly ask: Do both parties have any new arguments? Some lawyers see If the other party has a new opinion, you must express it yourself, but what you say is still the debate opinion mentioned before. In fact, don’t think that the more you say, the better. Not repeating refutations does not mean recognizing the other party’s point of view. If the other party has repeated their point of view, and you have already stated your opposite point of view and refuted the other party's point of view, there is no need to repeat the other party's point of view.

3. After court