A judge should be how to deal with a lawyer?

-- on the "Ten Views" Shanghai Changning District people's court judge in respect of lawyers, reflections

Zou Bihua

 August 13, 2012

Recently, attention micro-blog found in the lawyer friend and judges are quite veiled criticism, such as @ friends of the lawyer's micro-blog: "[three] the court's court debate stage, I say first the basic viewpoints of this case, and then ready to start. Just refer to a law court, saying the needless to say; so I said the judicial interpretation, the court again interrupted the judicial interpretation not cited; so I had to make a legal paper, the court again interrupted, this is not a class, not to speak of jurisprudence, can say the defense point of view. I said my opinion said at the beginning, one sentence conclusion." Similar micro-blog not in the minority. Read these micro-blog, discovery has three characteristics: one is the opinion or evaluation content than objectivity; two is the negative comments than positive evaluation, content or lawyers accuse the judge how, or to judge accused lawyers how; three is the frustration of the talk content are. Although some facts cannot be verified micro-blog, but from the statistical point of view, when a group show some common tendency, this tendency in itself is a kind of objective facts. Lawyers tend to view, reflects the subjective nature is also judge group in the lawyers of the. This to a certain extent, also revealed, both judges to lawyers or lawyers for judges, understanding, respect each other in communication or appeared some problems.

In 2010, the Shanghai Changning District people's court has issued "Changning District people's court respecting lawyer Ten Views", more than two years of time, I justices peer lawyer's attitude has changed greatly, but the judge does not respect the lawyer still occasionally heard complaints. The judge how to treat the law question really is not a short duration of time can be resolved into long-term, non solid efforts can not be. So we wrote this essay.

A

From the practice of the situation, some judges is very strong, not willing to listen to the lawyers explained; some judges in the court does not listen to the counsel and advice, or, in the different feeling lawyers statements and views and their own inner cognitive, interrupt request not to say yes or no lawyer speak; some judges to lawyers the judge in a court of law; some public reprimand or accused lawyers don't know or not familiar with the business; and some of the lawyer's personal safety is not enough attention, for the other party with personal insulting words not in time to avoid or eliminate; some judges to lawyers too casual or too familiar and affectionate, to larger space the other party and reasonable doubt; some judges do not pay attention to some questions the exercise of power, so that the other party to answer questions not lawyers, to the court investigation can not deeply; some judges reluctant agent lawyer to create conditions, such as in criminal cases, lawyers acting for different obstacles or unwilling to provide the related facilities, including a meeting with the parties, checking, or, to replace court lawyers The request was not willing to meet, etc..

Two

The occurrence of the above situation, from the point of view, both the subjective reason, also have objective reasons. From an objective point of view, there are some really let the judge very helpless factors. Be the first to bear the brunt, case much less, judge the work load. On the grass-roots court, the judicial personnel pay most of the hard work, with "overwhelmed" to describe is not caused by excessive. Nearly two years, where I court found cancer patients as six more, work pressure is too large to be is one of the reasons why. Difficult wound case increase, court cases in group, make visit of cases increased year by year, the judge to bear heavy psychological pressure. We have with the crime of illegal absorbing public deposits cases, shareholders' Ring Road hundreds of victims of tens of millions of dollars, and squandered. Money was sentenced to ten years in prison. The victim would put money makers release in court, to continue its money in the society, in order to put their money. This requirement is clearly not satisfied. Therefore, hundreds of victims often went to court to make visit. The court's work has also been greatly affected, in order to receive them, the judge must put the case at hand, not to mind taking the trouble to explain over and over again, but have little effect.

I have received a divorce the parties to the case, because the two typos appear to mediate in the book, asking the court to pay 150000 yuan. Its root, is her failed marriage to blame the judge, to petition for many years. In some cases, also let the judge a headache. There are few lawyer occupation performance is poor, establish some basic investigations or basic ideas were not in place, such as some parties qualification certification materials declined to offer, asking a judge to transfer to other localities.

Occupation standard is one of the important reasons for not mature. For example, the judge how to exercise the right to release tomorrow, how to open their own legal opinion or proof conclusion; for the questions in the trial, which must be a positive response, which should not be judges, what to ask questions or answer can be stopped by a judge, which must be made by the lawyer protested, are not very clear. This is very easy to cause the dispute between judges and lawyers.

Worthy of attention is the objective reason, efficiency of handling pressure is also important. Some judges was closed to the lawyer, tend to worry about the "spoiler", make the case more complicated, affecting their timely closed. The public psychological needs of our social justice. To some extent, many people think that the court proceedings should be like to get money from the ATM machine as convenient, so China has become the world's first trial time limit provisions of countries in the procedure code. Under this pressure, courts at different levels in our country currently on trial efficiency assessment is generally more stringent. This pressure conduction based on the judge, on matters on some program easy to simplify or even ignored in practice. As a result, the heart to the lawyer in court trial as "with" himself, lawyers say two will show impatience. From the procedural law, judicial notice especially the perception of reality, the need for a process, also need a lot of procedural safeguards (such as the parties shall bear the obligation to present evidence, witnesses should appear in court, etc.). This process may be relatively long. Does not respect these rules result, reflected in the specific case, it is easy to sacrifice the entity justice. In addition, the case handling efficiency into the judge performance system, if the performance standard is unreasonable, the judge will imperceptibly to compress the handling process, the compression is often accompanied by a large number of loss elements of procedure. In fact, the judge imperceptibly to personal interests into the case in this case, because the performance benefit is one of the most important benefits, it may influence the judge's promotion. It is not difficult to understand, why the judge heard the lawyer proposed supplementary investigation or to postpone the hearing request, face will become so ugly.

Three

The above are some objective reasons. But behind these objective reasons can not hide hide on the subjective reason. Then, from the point of view, what is the subjective reasons for the above-mentioned problems?

First of all, a few judges of the errors in the occupation cognition, occupation localization of some judges of the judges and lawyers are unclear, forget yourself as a neutral judge or justice guardian role, develop stand upon one's pantofles consciousness. In the course of time, the lawyer, the position in his heart become very light.

In fact, as one of the judges said the lawyer, is the assistant of the judge in court, relying on their efforts, the judge can understand faster in case the factual and legal issues. Indeed, the court is a play by a different role in the common interpretation of the. Can say, the lawyer is the extension of eyes and hands and feet in a way, they can make up for the shortage of the judge in the investigation and Research on the ability of.

Secondly, the inquisitorial thoughts overweight. Because of the history of our country, the judicial administrative integration strong authority is more prevalent. Super powers to the case of Bao Qingtian, Di Renjie and so on elite, in our public psychology ingrained, and even formed a idol worship. On the one hand, our old people tend to think that, on their own, some things happened in the process of evidence in the case, the judge is of course should know. So the judge is deified. On the other hand, we judge more or less susceptible to the effect, in the exercise of authority, easy to be too strong, to think that all the problems the court would be responsible for their own, and do not pay attention to play the role of lawyers, activity space of a lawyer in court by the nature of the inhibition.

Again, some judges defects in terms of basic communication skills and the skills, cognitive, emotional control technology in the blind spot. Some barriers to communication psychology, if not focus, counter tendency, casual, casual interrupted at the common mistake in reality It is often seen. Some judges will even with the parties fight in the hearing process.

And the judges there was serious defect in the trial skills, many judges on the court, supplementary questions, to respond to questioning and other aspects of the technology is not very proficient in, easy to grasp properly, at the critical moment, can easily affect the normal lawyer occupation standard in court play. For example, in a civil case, the defendant claimed, without signing the contract, the plaintiff lawyers immediately asked:

Lawyer: the defendant, can you tell the court how you were in what place?

Defendant: I was a man in XX cinema.

Lawyer: to tell you the movie name?

Defendant: the need to tell you?

Attorney: so, that many people in the cinema?

Defendant: I think that there is no need to tell you. This has nothing to do with the case, you ask too much.

Here, the lawyer has organized many problems to prove that the defendant was lying, but due to the defendant refused to answer questions raised by the lawyer, the courtroom cross examination can not be, nature, the court also have no way of knowing whether the accused of lying. In this case, the judge normal practice should be the defendant to respond, but in reality, many similar cases, judges are asked the lawyer to seize the time, ask some questions related to the case. This shows that, the lack of the judge occupation skills will lead to a lawyer in this case helpless even despair, empty is full of talent of resentment. The most sad is, the hidden damage such court administration in our is very easy to pay no heed, day in and day out in our side to or light or heavy form repeats.

Finally, a few judges mentality unbalance. Some judges think they work hard than lawyers, but the income is much higher than their own. The same law school in court, classmates are still riding a bike to work, and into the office has already opened a BMW. This contrast will have a certain impact on the judge. What is more, some lawyers in the case, some do investigation work are not complete, sometimes the judge to supplement survey. This is exacerbated by the psychological imbalance. This mentality, in many occasions not consciously reveal, for example, some judges for lawyers to change the court period often refused the request, some judges accused lawyers in court do not know the law, there are free to interrupt counsel, etc..

Four

These problems if not controlled, the rule of law to China will have great harm.

Between the judges and lawyers do not respect each other, the foundation will destroy the rule of Law -- trust. Said America Federal Supreme Court justice Steven criticized the Bush v. Gore decision, the public wealth to the court's "public trust. It is after many years slowly built up...... Is extremely necessary for the protection of all it actually maintain any successful efforts of the rule of law itself". The famous lawyer Dershowitz is put the social trust called "moral capital", the capital is a generation after generation of legal person accumulated. Days and months multiplying if we can not correctly handle the relationship between judges and lawyers, rule of law, it will shake the foundation -- trust, credibility of the judiciary is impossible.

Without respect between judges and lawyers, will not only damage the judicial authority, will damage the image of the lawyer occupation. "Hongkong judge behavior guide" points out, "if you have reason to feel the judge has favouritism, it is possible to make people feel unfair and aggrieved, but will make the outside world lost confidence" of judicial decisions, "the judge unjustly blamed the lawyer, to objectionable comments litigants or witnesses, and showing no discretion, may weaken the outside of the judge fairness perception." For example, the judge do not agree on the legal point of view and his lawyer, if self center certainly think they are right, the accused or taunt lawyers do not understand the law, in order to judge status, is strong on the psychological impact. As a result, will directly affect the occupation authority, the lawyer at the same time, will also reduce the image of the judge in the law in the eyes of the. The judge other respect the lawyer's behavior, also will affect the authority of the judge, if the judge in court be absent-minded, don't listen to the lawyers say, will let the lawyers have irritated anger meaning of judge. In addition, between the judges and lawyers is not harmonious, harmonious atmosphere will affect the court, not only affects the judicial efficiency, the court of fluency is blocked, will judge, lawyer's emotional damage.

Five

Relationship between judges and lawyers do not handle well, will cause great harm to the judicial justice and judicial credibility. In view of the dominant position in the construction process of judges in the relationship with the lawyer, the judge should be the establishment of social trust as its mission. America law sociologist Taylor think, people to obey the law and not directly into the trust in the law, from the law obedience to law trust must be with legal authority to transform. The legal authority's credibility will directly affect the trust of the people to the law. And this kind of trust can be divided into procedure confidence and personality trust. The former is their reliance on the neutrality of the procedural justice and legal authority. The latter is the people trust the authority of law personality in the implementation of legal acts in the process of.[1]

First of all, the judge should constantly improve the perfect personality, occupation accomplishment. The public has the right to have the most ardent expectations of the judiciary and the judge. The famous Taiwan legal person Mr. Chen Changwen thinks, "the judge must want to win others sincere love, do not want to be in contempt of court, the judge must be detached, good judgment, integrity, justice, evidence handling correctly, not corruption, a breeze, the referee law. When the judge to do this when, the court will establish an atmosphere of trust. When such a judge multi up, the whole judicial will obtain the social basis of respected". The Japanese "law on Cao ethics report" emphasize the judge has an obligation to avoid possible damage to the general public trust behavior and attitude, have the duty to maintain a certain quality. Trust is the foundation of the trial judge's authority, and is closely related to the personality of the trust and respect.[2]The chief judge of the Hongkong court of final appeal Li Guoneng pointed out, "the judge must act every hour and moment to the highest standard, in order to maintain public confidence in the judiciary and judges enforce the judicial work". Therefore, the judge should have the basic quality of tolerance, beyond, Wa, care, should have a clear occupation cognition and noble spiritual realm. With this quality can the judge in court showing a transcendent magnanimity. The judge was not in court interests, shall not be prejudiced, judges do not have to be someone convicted or not to let a party loses, the judge only need to keep an open mind, listen carefully to the statement, the burden of evidence and debate, on both sides of the confrontation process gradually close to the facts of the case, until the decision justice judgment. The judge may also need not suppress the party, the connivance of a party, not a lawyer according to their own inner set mean opinion, not to interrupt the lawyer speak, but not arbitrarily expel lawyer, in the face of the individual lawyer or lawyer is not dedicated to his lack of respect, should be able to take time for, and never put the bad state diffusion to in other case.

Secondly, the judge should be in the specific behavior let the outside feel justice (that justice). "Hongkong judge behavior guide" points out, " court to be righteous, and must is be obvious to people. The judge in addition to in fact do avoid leaning to either side, but also let the outside world believe that the judge is avoid leaning to either side ". The judge demeanor in court, the guide pointed out, "the judge should be courteous, should adhere to the court of the people with due respect." "At the court, all the people (both legal practitioners, litigants or witnesses), all deserve respect, this is their rights. The judge must ensure that the court every man, not because of race, sex, religion or other discriminatory reasons and be unequal to look at"[3]. Even if it is to maintain the court order and efficiency need to intervene, the judge should also ensure that intervention techniques will not affect their own court of justice, avoid the influence of outside of court justice perception.[4]

Once again, the judge should establish the legal concept of community, to respect the law. Judicial justice is the common task of the entire community of law, the judge alone is difficult to complete the task of judicial justice and efficiency, the judge should be regarded as assistant lawyer occupation. "The truth, before be said is the truth. But before it has not been said, we may not be aware of its existence." The judge's judgment without adequate facts and evidence, guidelines, is likely to make the wrong choice against the truth. When this error can affect the lives of others, property or rights of freedom, the law must set strict procedures, help judge reduced the possibility they make errors of judgment. In court, the lawyer through fully reveal the facts of the case, evidence and its connection, assist the judge found the fact or truth key, help the judge make correct judgement. We want to build our moral capital of the public credibility of the judiciary, we must rely on the concerted efforts of the entire community of law. The lack of participation of lawyers, judges and prosecutors only in court staged "Errenzhuan"; the lack of other roles participation, the judge in court staged "".

Secondly, the judge should also pay attention to learn the basics of psychology. Psychology, there is a series of very professional technology about listening, communication, trust, psychological effects, emotional awareness and other issues, these techniques in relation to judge and lawyer, will play a very important role. The judge should prevent themselves "counter tendency" and denounced the lawyer in court, to avoid damage the trust of lawyers.

In particular, a sober cognition judge coping self emotion, the formation of "empty cup mentality should be". Before entering the court or the reception room, the judge will encounter many affect their psychological and mentality. Me said, "empty pole, keeping stillness". "Empty" refers to your heart "completely empty". "Shou Jing Du", "Shou", devotion, quiescence is "static", motionless, "benedict". This is asking a judge to put yourself in a open mind, without any prejudice, and in a calm and focus listening to the opinions of both sides, only in this way can convey the lawyers and the parties respect.

Finally, occupation skills for a judge is also very important, especially the occupation method (including the rules of evidence, the trial skills) training. Shortcomings of this is China's legal education and judicial practice. At present, "cross examination", "art", "the court language technology is also your innocence", "defense lawyer never stop" and other works, in the trial techniques has provided a very good knowledge, worth reading. There are a number of legal subject matter of the film and television works, such as "Philadelphia", "never compromise", "judgment", "to kill a Mockingbird", also provide some intuitive court skills for us.