The art of losing: leading lawyers talk about defeats in court. Appeal

There is a question that clients ask us very often: what to do if you lose in court? This happens, there is no reason to panic. Even the best lawyers lose - there are no lawyers who don't have a single lost case. Except for those who just yesterday graduated from university and began their internship.

Any business consists of stages. The process involves not only the plaintiff and the defendant, but also a huge number of authorities, many people, and countless nuances. Each stage of the legal process cannot be predicted with 100% accuracy. Nobody canceled the human factor, unexpectedly revealed little things, new evidence.

Lost a case in court - what to do?

The trial court is not the end. After it come the cassation and supervisory, and if you applied to the arbitration, then before the cassation comes the appeal. In Moscow, cassation complaints are handled by the board of the Moscow City Court - there are such boards in all regions, districts, and territories. You need to send your complaint there.

The complaint is filed through the court of first instance, the filing period is 7 days in a criminal case, 10 in a civil case. It happens that the text of the verdict is not immediately issued, but there is no need to wait for all the papers: you have the legal right to file a “preliminary complaint” without a reasoning part, it is also called a short one, and send the reasoning part later. Such preliminary complaints make the same arguments as in the trial court; it is useful to indicate any violations of laws that you or your lawyer have noticed, including ethical ones. Judges often make procedural errors - they should be noticed and exploited.

It happens that judges try to refuse to accept brief complaints, but this is illegal, and the higher courts will side with you.

Don't expect the decision to be given to you on time - Moscow courts are very busy. Most likely, you will receive it within a month, maybe a little faster. This is why you need to file a short appeal - it will buy you time.

Refusal from supervisory authorities is also not a reason to give up. Continue filing complaints: We have seen cases where persistence has paid off.

What should be included in a preliminary appeal?

A preliminary appeal follows the same rules as a regular appeal, but some points can be skipped.

What to indicate:

• the name of the court where you are addressing the complaint;
• your initials, procedural status, address;
• an indication of the court that made the decision and the decision itself;
• reasons why you consider the decision to be untenable and references to legal norms;
• list of attached documents;
• signature.

For example:

District Court of Ensk
111111, Ensk city, Izvilistaya street, 4/2
From the defendant Ivanov Ivan Ivanovich
111111, Ensk city, Pryamaya street, 2/4

APPEAL

On February 14, 2018, the Magistrate Court of the city of Ensk made a decision in case No. 555 on a claim for compensation for damage from Sidor Sidorovich Sidorov to Ivan Ivanovich Ivanov.

As a result of the trial, a decision was made, according to which Ivan Ivanovich Ivanov was ordered to pay 500,000 (five hundred thousand) rubles in favor of Sidor Sidorovich Sidorov. I consider this decision unfair and illegal. After receiving a copy of the decision, a reasoning part will be submitted in addition to this appeal.

I ask you to cancel the decision of the Ensk Magistrate Court of February 14, 2018 in case No. 555 and make a new decision.

Applications:

Document No. 1 - 2 copies on 3 sheets.
Document No. 2 - 2 copies on 2 sheets.

Signature: Ivanov Ivan Ivanovich

What to do if you lose your case in court again and again and again?

There is another force that has, albeit unofficial, tangible power. These are journalists. If nothing helps at all, and you have become a victim of blatant injustice, you can turn to them. The hype generated in the press guarantees attention from the authorities, and sometimes this method really works.

Through the media, people were able to draw attention to housing and financial problems, they were able to obtain treatment, and the provision of medications required by law. But you need to understand that journalists are primarily interested in “hot” news - those that will help increase their ratings. If your story is outrageous, you have become a victim of a clear and terrible lawlessness, and even professional lawyers cannot help you, you can turn to the “fourth estate.”

What to do to avoid losing the case?

There is always a chance of losing, even if it seems that the matter is nonsense, and the decision will definitely be made in your favor. We talked about what to do next if you lost the trial, and now let's talk about how to protect yourself. That is, do everything possible to win.

• 1. Prepare to be rude. Unfortunately, most judges don't have time to listen to the whole story. Unfortunately, in court no one will treat you with understanding. The court is in many ways a conveyor belt, except for very high-profile cases. You need to understand that you will not be treated kindly, and not allow disappointment to break your morale.
• 2.Do not neglect the services of lawyers. The lawyer may not be present at the meeting, but it is better to consult with him on all issues: regarding documents, chances, possible difficulties, draw up complaints with his help and think through defense tactics. Jurisprudence is a difficult science and quite confusing for an unprepared person. It may seem to you that you have taken into account everything, and then it turns out that you still forgot about some important nuance.
• 3. Record absolutely everything. Unethical behavior and procedural errors will help when filing an appeal, and all kinds of documents can be attached to the case. Try to take pictures of everything, keep receipts, take receipts.
• 4.Take the trial court seriously. In most cases, he is the only place where you will be allowed to talk about your troubles in detail. In the appellate and cassation departments they listen less and not so carefully. If you lost the trial court, try to hire a lawyer for subsequent hearings.
• 5.Get ready for bureaucracy and wasted time. Meetings rarely last long, but you will have to wait in queues. Few processes start on time. Try to get enough sleep before your trip, don’t plan any important things right after. Do not be nervous. And trust your lawyer.

In our experience, many trials that are lost in the first instance are won in subsequent cases.

What to do if you lose in court, and do you need to pay a lawyer?

Let's look at the last frequently asked question: do I need to pay for a lawyer if the case is lost?

No qualified lawyer can guarantee that the court will side with you. The decision is not made by a lawyer, and to predict it in advance is a sign of incompetence and even fraud.

When you hire a lawyer, you are not paying for victory, but for the lawyer to find and use all legal opportunities for legal assistance. And it is these efforts that pay off.

Criminal lawyers work primarily not to acquit the client, but to achieve the maximum mitigation of the sentence for him. The percentage of acquittals in criminal cases in 2017 was only 0.3%: this is 2,900 out of 958,000 cases considered by the trial court.

And finally, you can get a free express consultation with our lawyer - just fill out the feedback form. You will be advised on how to file an appeal and

Lawyers' answers (1)

Elena, good afternoon!

You can appeal to a higher court with a cassation appeal. The complaint should indicate the court's request to suspend the enforcement proceedings.

However, the filing of a cassation appeal in itself does not entail the impossibility of initiating and moving enforcement proceedings. After enforcement proceedings have been initiated, you have the right to contact the bailiff with a request to postpone enforcement actions, attaching a copy of the cassation appeal you filed. But the bailiff has the right to postpone enforcement actions only for 10 days.

You also have the right, after initiating enforcement proceedings, to apply to the court for an installment plan or deferment of the execution of the court decision.

It is important to know what exactly the court's decision is about.

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Ask our lawyers a question - it’s much faster than looking for a solution.

What to do if the trial is lost

I have a right!

How to get a judge

conclusion of a settlement agreement; - d) refusal to execute the decision due to the impossibility of its execution.

My judicial practice talks about this in more detail. Why are you not prepared in court?

Here are useful links to help: - How to prepare an appeal without effort, based on the case materials?; - What do lawyers keep silent about when filing an appeal in a civil case?; - Why was the complaint rejected?; - Three reasons to restore the deadline for filing a complaint?; - What are the deadlines for considering an appeal?; - How to write an appeal and objection?;

Appeal

You can count on the cancellation of a decision that has entered into force if during the consideration of the case and when making the decision the following norms were violated: - substantive law, namely: legislative norms to be applied were not applied; legislative norms that were not subject to application were applied; legal provisions were misinterpreted.

If the judge is bought what to do

Often, even professional lawyers are not fully prepared for the realities of a real trial. Especially if one of the parties in it is yourself. Naturally, both judges and trials differ significantly from each other.

But there are general rules of behavior in court. Just as there is the notorious human factor, the contradictions of our Russian laws and corporate judicial ethics.

Lawyers in Moscow

After all, any doctor is always interested in the process of treating a patient, applied before contacting him.

The choice of protection strategy depends on this. Lost case - Stage 2: (the most labor-intensive) - analysis of the received materials and drawing up an appeal, cassation complaint.

This stage takes the most time and effort, especially in criminal cases with a large number of episodes and participants. First, the lawyer must agree on a defense strategy with the convicted person.

The case is lost: how to respond adequately

You also need to remember about one more legal restriction.

It concerns the possibility of providing new evidence - as a general rule, its provision is not allowed, or it will be necessary to prove that such evidence could not be presented earlier or the court refused to accept it (or, for example, to conduct an examination).

What should you not do in court? How not to lose a case? typical mistakes in court - let's sort everything out

make every effort to choose different defense tactics, one or two tactics a day is the work of a class specialist, share your thoughts on this matter with a lawyer. show that you also know the law and pay not only for what everyone can do, but you want to see creativity in the work of a lawyer.

If your conversation is suddenly interrupted by the lawyer's need to be away on business, arrange a meeting the next day.

what should I do if my lawyer was bribed and I lost the trial?

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The bailiff - executor, within three days from the date of receipt of the enforcement document, issues a resolution to initiate enforcement proceedings or to refuse to initiate enforcement proceedings. after you have filed an application to initiate enforcement proceedings with a writ of execution and (or) other documents attached to it, and the bailiff has initiated enforcement proceedings on it, do not stop and do not think that the bailiff will work diligently on your case, Believe me, he has more such things to do than he needs.

all the cases have been lost

cases where the cost of the claim does not exceed 50 thousand and a number of others (see.

Art. 23 of the Civil Code of the Russian Federation) are considered by magistrates, the rest - in district courts.

and disputes between organizations are considered by a separate system of arbitration courts.

The fact is that the grounds for overturning a court decision in the appellate instance are strictly regulated by the civil procedural code (Article 330 of the Civil Procedure Code of the Russian Federation). In addition, there are significant withdrawals at this stage.

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If the Supreme Court is lost, where to go next?

It is important that at this stage the case is not reconsidered, but only the legality and validity of the court decision is checked. There is also the so-called second cassation, when, after consideration by the presidium of “their” court, the complaint is filed with the Supreme Court. But the appeal must be carried out within six months, and it is necessary to attach the original of all court decisions made in the case, and this is not always possible in time. The grounds for canceling or changing court decisions in cassation are significant violations of substantive law or procedural law that influenced the outcome of the case and without eliminating which it is impossible to restore and protect violated rights, freedoms and legitimate interests, as well as the protection of public interests protected by law.

Where to complain after the Supreme Court

The cassation authority is the presidium of the court of the subject of the federation (republic, region, territory, city, etc.).

The parties to the process are not called. Based on the results of the study, he either refuses to satisfy the complaint or transfers the case to the presidium of the court.

All trials have been lost. what to do?

When new evidence appears, it is necessary to justify the impossibility of presenting this new evidence earlier (which was not presented in the first instance). Those. it is necessary to justify (prove) that the evidence could not be presented in the first instance or was rejected by the court of first instance.

That is why it was mentioned above about the need to record your petitions in the case. If the petition was denied, then this will become the subject of consideration in the appellate (and then in the cassation) instance. But if you declare to the appellate court that some circumstance has not been investigated (an examination has not been carried out, a witness has not been heard, etc.), then the appellate court judge will find out whether you made such a request in the first instance. If it turns out that there is no information about such a petition in the case, the appellate court may deny your petition.

Three stages of appealing a court decision

Therefore, procedural documents are extremely important for the successful resolution of a legal dispute.

The statement of claim, objections to the claim, petitions, clarifications and judicial requests must be correctly drawn up.

Court of First Instance As a general rule, the application is submitted to the court at the place of residence of the defendant - the one who is called to account.

There are a number of exceptions here, for example, claims for real estate rights are considered at the location of the property, claims under the consumer protection law and family disputes can be filed at the place of registration of the plaintiff.

Cases where the cost of the claim does not exceed 50 thousand and a number of others (see Art. 23

Code of Civil Procedure of the Russian Federation) are considered by magistrates, the rest - in district courts.

Disputes between organizations are considered by a separate system of arbitration courts.

Lost all the courts up to the Supreme Court. what's next?

This is regulated by Article 323 of the Code of Civil Procedure of the Russian Federation.

• If its content does not meet the requirements of the rules for submission and formatting.
• If the fact of payment of the state duty is not confirmed.
• If the period for appealing the verdict has expired and a petition for its extension has not been submitted for objective reasons.

The appellate court gives time for the appellant to correct the mistakes made.

If this does not happen, the complaint is returned to the applicant.

In accordance with Article 326 of the Code of Civil Procedure of the Russian Federation, the person who filed the complaint can withdraw it himself before the court retires to the deliberation room.

Also, the plaintiff and defendant can come to an amicable agreement.

In this case, the appeal is also subject to withdrawal.

Unfortunately, an appeal is not a panacea for all problems.

Filing a supervisory complaint does not automatically entail a review of the case.

It may also be refused for consideration for the same reasons as in the case of the first two stages of appeal.

Anyone who has reached the stage of supervisory authorities can well count on success. In the process of supervision, a wider range of court decisions will be subject to verification than during cassation, because the function of the supervisory court is to revise the decisions of previous courts. Sometimes it seems that complaints will not help the case, and our judicial system can lead to despair.

But if you are confident that you are right, and the court of first instance does not share this opinion, proceed further.

roststroy-yurist.ru

All trials have been lost. What to do?

“All the trials have been lost. What to do?" – this is what we call the situation when a person turns to a lawyer too late. This, unfortunately, happens often. Some legal advice on how to avoid a situation where all trials are lost.

Of course, the best thing is not to bring the matter to such a state, but to consult with a lawyer in advance before committing a legally significant action (an action that gives rise to legal consequences). Cases are different. For example, you want to borrow money or are asked to lend you money, you decide to buy or sell some property (an apartment, a summer house, a car, a garage), in a store you are told dubious things about the conditions for the exchange or return of goods, you are involved in an accident ... – yes, anything. In such cases, it is better not to guess about the rules for performing legal actions and possible consequences (which may be quite unexpected and unprofitable for you), but to ask a professional. So, there are many ways to consult with the lawyers of the Legal Protection company: call 500-789, send a message in a group in contact or ask a question in discussions, write in the form on the website or by corporate email, you can also contact a lawyer of our company directly (all contact information is in personal profiles). We hope this will save you from legal action.

Any person has the right to go to court. With any statement. Of course, the statement of claim must be accepted by the court for consideration, all facts must be confirmed and proven, and the case must be resolved in accordance with the law. But you need to understand that absolutely cosmic lawsuits can be filed against you, just as you can “sue” any person for almost any reason. Of course, you shouldn’t abuse this, it’s already called “litigiousness.” A professional practicing lawyer can tell you about the judicial prospects of a particular case. .

Ordinary people not involved in legal activities do not always correctly understand the role of the court and the principles of operation of the judicial system. The possibilities and functions of the court in civil proceedings are to satisfy the claims in whole or in part or to refuse to satisfy the claims. That is, the court does not seek the truth, does not help achieve justice and punish the offender. Don't count on it. The court can only agree with your requirements and their motivation or recognize them as not subject to satisfaction. Therefore, procedural documents are extremely important for the successful resolution of a legal dispute. The statement of claim, objections to the claim, petitions, clarifications and judicial requests must be correctly drawn up.

Court of First Instance

As a general rule, the application is submitted to the court at the place of residence of the defendant - the one who is called to account. There are a number of exceptions here, for example, claims for real estate rights are considered at the location of the property, claims under the consumer protection law and family disputes can be filed at the place of registration of the plaintiff.

Cases where the cost of the claim does not exceed 50 thousand and a number of others (see Article 23 of the Code of Civil Procedure of the Russian Federation) are considered by magistrates, the rest - in district courts. Disputes between organizations are considered by a separate system of arbitration courts.

There is a common belief that if the first court is lost, then the next court will certainly sort it out and help you. But still, in most cases, the court of first instance provides maximum opportunities to prove its position and obtain the desired decision.

Appeal

The fact is that the grounds for overturning a court decision on appeal are strictly regulated by the Civil Procedure Code (Article 330 of the Code of Civil Procedure of the Russian Federation).

Although formally, in the appellate instance, the case is reconsidered by a panel of three judges (or one judge of the district court, if the decision of the magistrate is appealed), in fact, it takes about 5 minutes to consider a case that could last many months. Complaints are processed in a conveyor belt. This can hardly be considered a re-examination.

In addition, there are significant withdrawals at this stage.
Thus, new demands are not considered, additional evidence is not accepted if it could be presented in the court of first instance.
You cannot make demands to change the subject or basis of the claim, to change the amount of the claim, to file a counterclaim, to replace an inappropriate defendant, or to involve third parties in the case.

During the appeal, the court decision has not yet entered into legal force and has not given rise to legal consequences. Further appeal is working with a court decision that is already subject to execution.

Cassation

A cassation appeal is filed with the presidium of the court of a constituent entity of the federation (for example, the Ryazan Regional Court). Moreover, the cassation appeal is first considered by the judge alone without calling the parties, and decides whether to transfer the case to the presidium for consideration (in most cases, he does not transfer it).

It is important that at this stage the case is not reconsidered, but only the legality and validity of the court decision is checked.

There is also the so-called second cassation, when, after consideration by the presidium of “their” court, the complaint is filed with the Supreme Court. But the appeal must be carried out within six months, and it is necessary to attach the original of all court decisions made in the case, and this is not always possible in time.

The grounds for canceling or changing court decisions in cassation are significant violations of substantive law or procedural law that influenced the outcome of the case and without eliminating which it is impossible to restore and protect violated rights, freedoms and legitimate interests, as well as the protection of public interests protected by law.

Despite the seemingly appropriate formulation of the grounds for cancellation in many cases, in fact, a completely insignificant number of cases are reviewed through the cassation procedure.

So we can conclude: the lower the authority, the more procedural and factual opportunities to prove one’s case and achieve the desired result. And to do this, you need to take your legal actions responsibly at the early stages. And ideally, do not bring the case to court. And if a trial cannot be avoided, prepare for it properly in advance so that you do not later try to appeal a court decision that has already been made or has already entered into force.

However, there is another important point - review of the case based on new and newly discovered circumstances.

The newly opened ones are like this significant for the case, circumstances that were not and could not be known, but already existed at the time of consideration of the case. New circumstances must arise after the court decision and be essential for the correct resolution of the dispute.

You can ask questions about your court case, the prospects for canceling or changing the decision by calling 500-789.

Lawyer of the Legal Protection company Dmitry Grishin

If you lose a lawsuit in district court, where do you go next?

Court hearing on my civil case to the Administrator. The Pension Fund will take place in April. I would like to hope for a positive result. But if things don’t turn out in my favor, please tell me the next steps. Which authority is next? On what day after the court hearing can I receive a decision?

1 answer to a question from lawyers 9111.ru

The trial has not yet taken place, and you are already giving up! We need to look more optimistically into the future!

Prepare for the court hearing more carefully, collect and present to the court as much evidence as possible. Well, if, after all, the decision is not in your favor, then you can appeal the decision of the district court to the regional court by filing an appeal through the district court within a month from the date of receipt of the reasoned court decision. The court decision is issued either on the day of announcement of the decision, if it is adopted by the court in final form, or five days from the date of announcement of the operative part of the decision. The court is obliged to inform you when the decision is ready and when it can be obtained.

Risk, of course, is a noble cause, but an unexpected write-off of the amount of debt from your account just when you urgently need the money, as well as a repeated claim to collect interest for unlawful evasion of the execution of a court decision, will not add positive emotions.

You also need to remember that in case of forced collection, the bailiff will additionally withhold 7% of the enforcement fee from you.

So, the first piece of advice is to pay the debt to the creditor with reference to the court decision, indicating the name of the court, case number and date of the decision.

Appeal the court decision

This advice applies in at least two cases:

• When you have reasonable doubts that the court has assessed all your arguments and objections and applied the necessary rules of law.
• You just need to bide your time. Filing a complaint, as a general rule, does not allow the decision to enter into legal force; consideration of the complaint from the moment of its filing will help gain 2-3 months. In this case, additional expenses for you are a state fee and, possibly, interest on the use of funds and the risk of reimbursement of the opponent’s legal costs.

A refereeing error cannot be ruled out. Up to 16% of all judicial acts adopted at first instance are canceled.

The court could have made a mistake in your case, which means you have grounds to file a complaint. You can draw it up yourself, but the legislation clearly defines the grounds for canceling a court decision, and if the complaint is not sufficiently substantiated with reference to the case materials, then the decision will not be canceled.

You also need to remember about one more legal restriction. It concerns the possibility of providing new evidence - as a general rule, its provision is not allowed, or it will be necessary to prove that such evidence could not be presented earlier or the court refused to accept it (or, for example, to conduct an examination).

Settlement agreement

The law says that at any stage of the legal process (even after a court decision has been made), a settlement agreement can be concluded.

Achievement reasonable compromise between the parties on the timing and procedure for executing the court decision will help you get out of the situation with dignity and prevent unexpected enforcement surprises, which we talked about above. Offer your opponent terms of repayment of the debt that are reasonable for you and beneficial for him, draw up a settlement agreement and together submit it for approval by the court that made the first decision in the case.

A bad peace, in this case, is not only better, but often even more profitable than a good quarrel. At a minimum, you will save on hospitality expenses.

Postponement and installment plan for the execution of a court decision

In order for the court to grant a deferment or installment plan for the execution of a court decision, documents are required about your current difficult financial situation and measures that will allow you to repay the debt in the future in full (we ask for a deferment) or in parts (we ask for an installment plan).

Such measures may be the presence of a decision on the payment of budget funds to you, tax refunds (VAT, in particular), on the speedy fulfillment by the counterparty of its obligations, etc. To prevent collection of the enforcement fee, an installment plan or deferment of execution must be applied for before the court decision enters into force.

Please note that in practice, the possibility of obtaining a deferment or installment plan is quite difficult and it will not be possible to get through “just like that” in court.

Suspension of enforcement proceedings and postponement of enforcement actions

There are two groups of grounds for suspension: when the suspension is carried out by the court and when the proceedings are suspended by a bailiff. In turn, each of these grounds is divided into unconditional grounds for suspension and conditional ones, when the question of whether to suspend or not is decided by the court or the bailiff.

The grounds for suspension, in particular, include filing a claim for exclusion from the inventory of property that has been foreclosed on under a writ of execution; challenging a writ of execution or a judicial act on the basis of which the writ of execution was issued, etc.

Postponement of enforcement actions. A fairly loyal norm that can be useful for all sorts of minor “respites”, including for preparing documents for the court to suspend enforcement proceedings.

note that bailiff has the right to suspend enforcement proceedings for no more than 10 days . The court may postpone enforcement actions until the grounds for such postponement are eliminated, but enforcement of these instruments is extremely insignificant.

"Sale" of business

Standing on the edge of legality, and in some cases beyond it, giving only the appearance of a positive effect, a form of debt protection. In practice, it saves only from “lazy” creditors.

A change of participants and directors, location addresses, reorganization in the form of a merger, and the involvement of a management company are reminiscent of the situation with an ostrich with its head buried in the sand.

The grounds for liability provided by law and the established law enforcement practice leave no chance for the debtor (participant/director) not to be held vicariously liable for the obligations of the “sold” company, as well as for compensation for losses. And the risks of criminal liability make this form of debt protection attractive only for short-sighted entrepreneurs.

Bankruptcy

If you cannot repay your debts to your creditor, then you must file for bankruptcy within a month.

Failure to fulfill this obligation entails liability for damages at the expense of the head of the company and its controlling persons, as well as administrative liability up to and including disqualification.

No matter how threatening “bankruptcy” may sound, there is nothing terrible in this process. The procedure itself does not begin with the sale of property. The first actions in this procedure are measures aimed at restoring solvency, for which a moratorium on creditor claims is introduced.

That is, it is the bankruptcy procedure that can help revive your business, and if this is not possible, close the company as efficiently and risk-free as possible.

So, the most effective way to get rid of a court-ordered debt is to execute it. And when and how to execute a judicial act in a different manner is up to you to decide: you can either reach an agreement with the creditor, or use other methods, including bankruptcy.

In any case, after a court decision is not in your favor, we recommend meeting with your opponent at the negotiating table. He usually also understands that executing a court decision is not the easiest or fastest process, so he will be ready to compromise.

For the majority of our citizens who do not have a legal education, the court is a somewhat mythical institution with a touch of theatrical romance, glimpsed in fascinating television productions or in rare stories of acquaintances. Using the phrase: “Keep in mind, I will go to court!” most people simply have no idea what they are talking about. Often, even professional lawyers are not fully prepared for the realities of a real trial. Especially if one of the parties in it is yourself.

Naturally, both judges and trials differ significantly from each other. But there are general rules of behavior in court. Just as there is the notorious human factor, the contradictions of our Russian laws and corporate judicial ethics. Taking into account the peculiarities of the criminal process, we will focus only on civil proceedings.

It is better to illustrate possible collisions with your own example. As a lawyer with ten years of experience, not long ago I had the opportunity to appear in a civil trial as a defendant in a case for compensation for damage caused by the flooding of an apartment located on the floor below. The case was heard in the Federal City Court in the city of N. My neighbors were the plaintiffs in the case. Unfortunately, it was not possible to reach an amicable agreement at the pre-trial stage. Regarding my civil liability insurance, the familiar expression of “a shoemaker without boots” would be appropriate.

At first, due to my profession, participation in court did not seem like some kind of global problem for me. However, the very first court hearing shocked me. In the court case file there was a stitched, laced and numbered copy of the evidence in the case with new, enclosed (non-identical to the copies that both I and the plaintiff had) pages. And most importantly, the presiding judge pretended that everything that was happening was absolutely legal.

The subsequent civil trial was a theater of the absurd. The judge accepted the evidence submitted by the plaintiff (including the forged pages on the basis of which he based his decision in the future) as sufficient and admissible. At the initiative of the judge, the plaintiff's witnesses appeared in court, whose testimony either clearly contradicted each other or was simply inadequate. All this happened despite active, legal actions on my part. By the decision of the court of first instance, created in record time, the defendant, that is, me, was awarded to compensate the amount of damage claimed by the plaintiff in full.

Now let's look at the results of this story, a few months later. The court of second instance (on my cassation appeal) canceled the above court decision, and the case was sent for a new trial (to the same judge). According to my written complaint to the Republican College of Judges, the judge who made the illegal decision was given a disciplinary sanction. Upon re-examination, the final chord was the signing of a settlement agreement, the terms of which were satisfactory to both parties. The conflict was over.

If we analyze this situation, the conclusion suggests itself that the “costs” in the implementation of the courts’ activities arise as a consequence of our incorrect, largely illiterate behavior in court regarding our rights and obligations.
If a person who was not a lawyer were in my place, of course, his losses (both moral and material) in a similar situation would be much more significant. Therefore, based on my own experience, I would like to give some general recommendations on how to behave correctly if you do find yourself in a civil trial situation, regardless of which side you represent in it.

Firstly, it is necessary to try to resolve disagreements at the pre-trial stage, in other words, to try the entire arsenal of means so as not to bring it to trial.
If this fails, put aside all emotions and grievances and begin to take active action.

At this stage, you have two options: first: invite a professional to represent your interests, or defend your position in court yourself. The first way will significantly increase your expenses (although if you win in court, they can be attributed to the defendant). Therefore, you must be extremely careful when choosing a representative. One of the guarantees of his interest can be payment for part of his services at the end of the process, depending on the results. In any case, the activities of the representative must be scrupulously monitored; your presence at court hearings and personal familiarization with the case materials and court records is a very important factor.

Second way: You defend your interests on your own. You can compensate for the fear of being unprofessional in this area by consulting with lawyers (or a regular lawyer) before court hearings and when checking the documents you have compiled for the court.

When choosing the second option, you need to purchase the Civil Code of the Russian Federation and the Civil Procedure Code of the Russian Federation. In them you will find rules for drawing up documents for courts of all levels, principles of civil procedure, duties of judges, your rights, etc. Help systems, plus the Internet will help you find the missing information (for example: judicial practice in similar cases, advice, examples drafting documents). If you simply know how to read, given the degree of your interest in the outcome of the case, you will undoubtedly succeed.

It must be remembered that any party to a civil process has a wide range of rights, and that judges also have responsibilities. In particular, the judge is obliged to freely familiarize you with the case materials in full, to be objective and impartial, not to allow insults in the courtroom, not to be late for court hearings, etc. An important factor for maintaining objectivity during civil proceedings is the opportunity to take advantage of the principle of publicity of the trial provided by the Civil Procedure Code and keep a voice recorder of each meeting. Subsequently, being in a comfortable environment for you, you will be able to evaluate what is happening in a new way. In addition, a voice recorder turned on in the courtroom forces all participants in the process to weigh their words and actions.

Emotions in the courtroom are your worst enemy. Don't be a provocateur and don't give in to provocation. If you don't know how to answer a question, or if the other side presents new evidence, ask the judge to give you time to think about your response. Respect for the court and its participants, a calm, confident tone will make your statements more significant in the eyes of others.

It is important to remember: real trials are far from their television counterparts. Rigid formalism, not a theatrical show, is the queen of “live” court. Your words must be supported by facts and only facts, arguments and written evidence.
Each protocol of the court session must be studied by you. If you do not agree with its content, if essential facts are omitted or distorted, draw up written “Comments to the minutes of the court session.”

If the court of first instance still makes a decision not in your favor, do not despair, and within 10 days send a complaint to a higher court. Practice shows that the second instance is independent and quite strictly monitors the implementation of laws by judges. It is at this stage that you will need facts of violation of the law during proceedings in the court of first instance. After all, the higher court will check the legality of the civil process, and not consider the case on its merits.

The most important thing is to never forget that even the most professional legal proceedings face considerable costs. If you are a plaintiff, this means paying a fee for filing a statement of claim, and the services of your representatives, experts (who can, of course, be awarded to the defendant if you win), but even if the outcome of the case is favorable for you, there is an exhausting civil process and difficulties actual collection of the debt from the defendant is guaranteed to you.

If you are the defendant, in the event of a court awarding a material amount as compensation for damages in favor of the plaintiff, you will be required to pay both the fee paid by him and the services of his representatives. At the stage of enforcement proceedings, the defendant must not forget about the percentage that bailiffs take for carrying out their activities (if the material amount assigned by the court decision is not paid by the defendant voluntarily within the time limits established by law), the ban on debtors traveling abroad of the Russian Federation, and fines for non-compliance court decision.

Therefore, concluding a settlement agreement between the parties is, in most cases, beneficial to both of them and is possible at any stage of the civil process.

It should be noted that in recent years the judicial system has undergone deep reform, which, of course, has a positive impact on the results of its activities. And it is always important to remember that the court is only a way to resolve the situation, and your task is to be a full-fledged, self-confident participant in the process.

Lawyers typically make three basic mistakes in appellate court.

They do not check the unconditional grounds for canceling a decision

This is a strong argument for overturning the decision, but it is often overlooked. Lawyers are too keen on justifying their position and describing the circumstances, but forget to check whether there are unconditional procedural violations in the case.

If the appellant finds at least one such violation, the court will cancel the decision and reconsider the case according to the rules of the first instance, that is, it will reconsider the dispute on the merits. During such a review, it will be possible to submit petitions and statements, present evidence, if for some reason they did not do this in the first instance.

Most often in complaints, appellants refer to two violations - the court considered the case without a person participating in the case, who was not notified of the time and place of the hearing, or the court made a decision on the rights and obligations of persons who were not involved in the case.

If the judge in the case was illegally replaced or territorial jurisdiction was violated, you can refer to the consideration of the case in an illegal composition of the court.

Check whether there is a court record in the case - higher courts often overturn decisions due to its absence. If there is no audio recording of the court hearing in the case, the courts can also overturn the decision on the same grounds.

The appeal will overturn the decision if there is no audio recording, but it contained information that served as the basis for the adoption of a judicial act. Therefore, indicate in your complaint what important information was on the audio recording. For example, interrogation of witnesses, experts, examination of evidence.

Lawyers are bad at building a defense

The lawyer cites in the appeal an endless list of court errors from serious to insignificant.

For example, when he points out that the judge incorrectly applied the rules and was not wearing a robe, the second argument clearly negates the seriousness of the first. The appellants usually formulate the violations themselves in general terms - without reference to specific evidence and case materials. Judges rarely take such complaints positively.

Recommendation - write no more than four to five clearly defined reasons for cancellation. In each argument, it is advisable to describe three points: the lower court's error, the incorrect conclusion it reached because of that error, and the conclusion the court should have reached.

Lawyers are passive during appeals

When the court has already considered the case on its merits, lawyers think that their task in the appeal is only to present arguments for and against the court's decision. This is not entirely true. An appeal is the last opportunity to close evidentiary gaps in the positions of the parties in the case. Take advantage of this.

Try to present evidence essential to the case in the appeal, file motions. The appellate authority may accept additional evidence from a party and consider requests for new evidence, but only in two cases. The first case is if the party justifies that it could not present them to the first instance for valid reasons. The second is if the court of first instance rejected them. That is, in the appeal it is necessary to once again state all the petitions and evidence that were rejected by the first instance.

If you did not present evidence at the first instance, but it is essential to the case, still present it on appeal. If you cannot give good reasons or they are clearly “extracted,” the likelihood that the court will accept the evidence or satisfy the petition still remains: the court would rather accept new evidence than not accept it at the risk of canceling the judicial act.

For example, a company filed a claim against the company for unjust enrichment. Since the defendant did not provide evidence that he withheld the transferred money justifiably, the court granted the claim. To the appellate court, the defendant presented contracts and service acceptance certificates, which confirmed the existence of obligations between the plaintiff and the defendant and the basis for payments. The appeal added documents to the case and dismissed the claim. The higher courts agreed with the appellate court.

Errors in cassation

Lawyers make six common mistakes. The first three were discussed in the section on appeal. Three more errors are typical only for cassation.

The arguments of the complaint go beyond the scope of cassation consideration

In 99 percent of cases when cassation upholds decisions of lower courts, it indicates that the arguments of the complaint are aimed at reassessing the factual circumstances of the case and evidence. And this is not within the scope of consideration of the case in cassation. Cassation only checks whether the courts correctly applied the rules of substantive and procedural law.

The reason for this practice is that lawyers often copy the text of the appeal into the cassation complaint. For example, the complaint writes that “the conclusions of the courts do not correspond to the factual circumstances and the evidence presented in the case.”

If you want to present new evidence or perform procedural actions that are possible only in the first instance, look for unconditional grounds for reversing the decision.

In your cassation appeal, refer specifically to errors in the application of the rules - these are your main arguments. All arguments that are related to non-investigation or incorrect assessment of evidence are given only to confirm the court’s errors.

The arguments of the complaint do not correspond to the petition's purpose

The goal of the cassator is to achieve the reversal of judicial acts with which he does not agree. To do this, he can ask the cassation court, for example, to adopt a new judicial act in the case, to send the case for a new trial, or to leave in force one of the decisions or resolutions previously adopted in the case. Sometimes cassation officers ask to adopt a new act in the case - this is the most advantageous for the party, regardless of the circumstances of the case and the arguments that it brings.

The cassation court will not be able to adopt a new act, since to do this it will have to examine and evaluate the evidence, and the cassation court does not have the right to do this. Such a discrepancy between the request and the arguments reduces the credibility of the complaint and often raises questions and criticism in the court of cassation.

Study the case materials and select possible arguments for cassation. After this, decide how to formulate the pleading part of the cassation appeal.

Additional documents submitted too late

Lawyers often file position papers too late and draft them incorrectly. Courts usually accept documents directly at the hearing, but not cassation documents. If you submit a response to the complaint, additions, or written explanations directly to the hearing, the cassation office may reject them. For example, the court indicated that written explanations were received on the eve of the court hearing and refused to include them in the case materials.

Consider the peculiarities of the court. For example, the Arbitration Court of the Moscow District may not accept written explanations, since it considers them new evidence that the cassation cannot accept. Therefore, format additional explanations as the text of a speech - the courts usually accept it.