Anna Menshova

Some features of making a winning case in the kitchen of the justice 4.6/5 (10)

A court case is a serious matter. With a proper approach it goes right and reaches the goal of the justice – resolution of disputes and protection of rights and interests.

I am specialized and I have been practicing the Russian civil litigation process. This makes me able to point out some specifics and in certain cases to make some predictions in outline on the progress of the future process.

The goal of this article is not to teach you the legal terms and actually not to disclose the ‘kitchen of the justice’, but to help you understand some specifics of litigation in reality, in order to get you rid of illusions or prejudice to a court.

 

On television, we can often see the films about a trial with a live court hearing, a verbal battle between the lawyers, a participation of jurors and behind-the-scenes conversations between the lawyers and the judge. Unfortunately, not everyone knows that such a picture is not typical for any litigation and court session. In films, we most often see lawsuits in the US, England and other countries of the Anglo-Saxon legal family. But in reality there are various legal systems (legal families) in which litigation usually takes place in different manner: Romano-German (countries of continental Europe, as well as Latin America, some countries in Africa and Asia); Anglo-Saxon (e.g. United Kingdom, USA, Canada, Australia, New Zealand); religious legal families (Muslim law, Jewish law, Hindu law); the socialist (China, Vietnam, DPRK, Cuba); a family of customary law (Equatorial Africa, Madagascar).

The core specifics come from the historical typology of the litigation process combined with specifics of the certain country’s system of law, legal culture and realization of the legal acts in practice.

 

Let’s see the differences between the two most opposing ones, the legal systems of the countries of Anglo-Saxon legal family and the legal systems of the countries of Romano-German legal family. They differ, among other things, in the order of collection and presentation of evidence and the degree of involvement of the judge into the process.

As it is known, two main types of systems of justice are historically distinguished: adversarial (mostly used in countries of Anglo-Saxon legal family, or countries of common law) and inquisitional (which became most widespread in countries of Romano-German legal family).

In the adversarial system, the court usually plays a passive role, the parties are initiative in preparing for the case. The court does not interfere in the conduct of the case. The judge does not actively prepare for the hearing, because this is the function of the parties.

In the inquisitional process, the roles of the parties and the court are diametrically opposed to the adversarial process: the court is active in the proceedings, whereas the parties might be relatively passive.

In some opinions, more influential role of the judge in Anglo-Saxon common law is due to the fact that the main source of law there is a precedent, and if there is no precedents the judge can make a new precedent himself. This distinguishes common law system judge from the judge of continental law system, where the judge is traditionally perceived only as an interpreter of law. In relation to this, in the Romano-German legal family the decision of the judge is rather more expected, as it is based basically on written rules of laws that are available for the parties as well. In Romano-German legal family (continental law), the judge is traditionally perceived only as an interpreter of law.

A Russian courtroom

 

The Russian civil litigation process developed in quite a unique way. Traditionally it belongs to the Romano-German legal family, but it is possible to say that the Russian civil litigation process has some unique, distinctive elements.

In Kievan Rus, the Russian Empire and up to the Soviet Union times the law system rather remained independent from the foreign influence. The key period in the development of the identity of the Russian civil process is the Soviet period. At that time, the main features, many legal institutions of the pre-revolutionary Russian process, were generally preserved and developed further. The legislator did not seek to copy foreign legislation. On the contrary, foreign experience of legal regulation was considered as inefficient. Lawmaking was based primarily on the study of judicial practice and scientific researches of the domestic litigation process specialists.

This brought some Soviet litigation process features, which, in particular, include: the extraordinary activity of the judge both in gathering evidence and in guiding the whole process; extended powers of the governmental prosecutor, original Soviet principle of objective truth and other principles of the civil process. A great influence on the civil process was influenced by subordination of the judicial branch of power to the executive.

In the arbitrary court of Russia

 

Nowadays Soviet elements primarily remain. As it is provided by laws, in gathering evidence the judge is supposed to be relatively active, being kind of a golden mean between the activity of the court and the parties, supervising the process (which is especially appreciable in arbitration process).

Thus, for example, the Russian court within the framework of the adversarial principle of the civil process is entitled to the following: offer the participants of the case to provide additional evidence if it is necessary to clarify the circumstances that are important for a proper consideration of the case and for adoption of a lawful and reasonable judicial act in arbitrary process; assist in clarifying the circumstances involved in the subject of proof; provide evidence; issue court orders in case of impossibility of obtaining evidence located in the territory of another region; appoint an expert examination at the request of the person participating in the case, or to invite the persons participating in the case to appoint an expert examination. This list is not closed.

Unfortunately, another thing is that this golden mean is sometimes might be shifted to one of the parties. Thus, inactiveness that might me legally reasoned by the personal conviction of the judge, in reality may come from desire to finish the trial in a short term, or personal unwillingness of a judge to do additional job and help a party, or some other unknown reasons… I highlight that this might be seen just in particular cases as a personal factor, not as a common rule. Usually in order to approve the party’s request, say on helping gathering evidence, the judge should be legally motivated. This means that quite often if the parties want to win, they should be active enough in submitting not only statements of fact and evidences but it’s desirable to be active in submitting the legal reasoning and legal reasons to approve the requests. Thus, the judge would be motivated to see the requests on gathering evidence on the merits, unwilling to leave unreasonable court decisions under risk of being revoked.

The judge in Russia (I am sure that this is true for the other countries) shall absolutely follow the law. Meanwhile, the procedural law only settles the basic mandatory rules as a guidance, further implementation of material and procedural law in certain case is at the discretion of the judge. So the outcome of the case depends on the personal discretion of the judge, which itself depends on activity of the parties.

 

Hope for the objective truth to prevail without your preparation might play against you. Thinking that unlawful case against you is like a slight illness and that it will pass itself (‘because the court shall itself understand that you are right and not guilty) – is a wring way of thinking.

If you want to win the case (you are a claimant), or you want to beat the unlawful claimant against you (you are a defendant), it is always better to thoroughly prepare for the litigation. This might need to prepare the procedural documents (e.g. claim, counterclaim, objections to claim, different requests), gather and submit the necessary evidence, in certain situations it’s better to attend the court session personally, and always strictly follow the procedure established by law.

In my view, a case is like a healing process – it needs a personal approach. A TIMELY consideration and may be a good legal consulting healing if needed – and everything will be GOOD.

I am wishing you success in your business and life.

 

Dear reader, if you are specialized, have experience or just familiar with the litigation process in other countries (England, USA, Germany, China, Israel, Africa, ANY country), I would be very grateful to you for sharing your opinions, information and experience about it here. You are very welcome to leave your comments here or in personal message or by e-mail.

 

Best regards,

Anna S. Menshova,

Lawyer and Legal Adviser,

Russian Marketing Director & Legal Consultant for Elite Social Network

Saint Petersburg, Russia

Tel. 7 967 590-73-79

E-mail: a_menshova@inbox.ru

http://lexdom.net

http://russianlawyerfor-expats.info/

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Shorif hasanSuchan KumarAbdul KaderTheBoss Recent comment authors
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TheBoss
Admin

awesome article!!

TheBoss
Admin

i would love to read an article , like ” top 5 mistakes foreiners make when opening a business in st. pertersburg ” just an idea.. thanks

Suchan Kumar
Member
Suchan Kumar

I want you to write on this topics soon…………..\

Abdul Kader
Member

To my Point of view the Russian Federation is a civil law country belongs to the continental legal system with codified legislation divided into substantive and procedural legal law.The main source of law is legislation, and precedent does not bind the court system, but clarifications and decisions of the higher courts have significant weight.

Suchan Kumar
Member
Suchan Kumar

The civil judicial procedure of each country is specific; it reflects the existing legal, national, and cultural traditions, but at the same time it cannot stand off the world trends in the civil procedure development.According to Art. 118 of the RF Constitution, justice in Russia is exercised in four forms. They are the constitutional, civil, criminal, and administrative judicial procedures

Shorif hasan
Member

I know from web research that Russia is a civil law country; and, strictly speaking, decisions rendered by courts are not binding on other courts. However, the lower courts generally follow the principles established by the supreme courts. Moreover, according to Art.304 of the Code of Procedure in Commercial Courts, the Supreme Commercial Court can set aside a decision of a lower court on the grounds that this decision contravenes uniformity in interpretation of law as established by case law.