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Lecture notes, cheat sheets
Advocacy and notary office. Participation of a lawyer in the pre-trial stages of resolving civil disputes (lecture notes)
Directory / Lecture notes, cheat sheets Table of contents (expand) LECTURE No. 8. Participation of a lawyer in the pre-trial stages of resolving civil disputes 1. Lawyer in civil proceedings The activities of a lawyer-representative in Russian civil proceedings are characterized by many features due to the organizational, legal and procedural legal status of a lawyer. Taken together, such features are expressed in the fact that the attorney-representative: 1) carries out civil procedure activities as a professional lawyer with sufficient knowledge and experience; 2) clearly knows his role as a representative in civil proceedings in general and in a specific civil case in particular; 3) has a wide arsenal of measures, means and methods provided by law for the performance of their professional tasks and professional duties; 4) is well informed about the types and extent of his responsibility for the quality, timeliness and efficiency of procedural activities on behalf of a party, third parties in civil proceedings. In accordance with the new provisions of procedural legislation, the rights and obligations of a representative have been expanded in accordance with the public law roles performed. This trend can be traced both in the Law on the Bar and in the new Code of Civil Procedure of the Russian Federation. The powers of a lawyer participating as a representative of the principal in civil proceedings are regulated by procedural legislation. At the same time, the law also paid attention to the regulation of the rights and obligations of a lawyer, that is, the most important components of his legal status. In particular, the Law on Advocacy provided the lawyer with a whole a number of very important procedural rights: 1) collect information necessary for the provision of legal assistance; 2) to interrogate, with their consent, persons allegedly in possession of information on the case in which the lawyer provides legal assistance; 3) collect and submit documents that can be recognized as evidence in the case; 4) on a contractual basis, engage specialists to clarify issues related to the provision of legal assistance; 5) to record the information, including by means of technical means, contained in the materials of the case in which he participates as a representative (clause 3, article 6). The attorney-representative has the right to perform on behalf of the represented all the procedural actions provided for in paragraph 1 of Art. 35 Code of Civil Procedure of the Russian Federation. However, the power of attorney should specifically stipulate such powers of the representative as the right of the representative to sign the statement of claim, present it to the court, refer the dispute to arbitration, file a counterclaim, complete or partial waiver of claims, reduce their size, recognize the claim, changing the subject matter or grounds for a claim, concluding a settlement agreement, transferring powers to another person (transfer), appealing a court decision, presenting a writ of execution for collection, receiving property or money awarded (Article 54 of the Code of Civil Procedure of the Russian Federation). The representative, as well as the persons participating in the case, must use all the procedural rights belonging to him in good faith (clause 1, article 35 of the Code of Civil Procedure of the Russian Federation). Along with this, in relation to a lawyer as a special subject of representation in Russian civil proceedings, the law establishes various legal restrictions. In particular, a lawyer is not entitled to: accept an order from a person applying for legal assistance if it is obviously illegal; accept an order for the provision of legal assistance if he has an interest in the case that is different from the interest of the principal. A lawyer cannot accept an assignment to provide legal assistance if he participated in the case as a judge, arbitrator, arbitrator, mediator, prosecutor, investigator, interrogator, expert, specialist or is a witness or victim in the case. Ethical norms and the law prohibit a lawyer from taking a position in a case that is contrary to the will of the principal, and also, without the consent of the principal, to disclose information provided to him in connection with the provision of legal assistance (clause 4, article 6 of the Law on the Bar). The lawyer must honestly, reasonably and in good faith to defend the rights and legitimate interests of the principal by all means not prohibited by Russian law; constantly improve their knowledge, improve their qualifications, i.e. professional skills; to insure the risk of their professional property liability (clauses 2, 3, article 7 of the Law on the Bar). The role and place of the attorney-representative in civil proceedings outlined by the Code of Civil Procedure of the Russian Federation, as well as his ability to influence the resolution of the dispute, allow us to see a new trend: the consistent implementation of the idea of professionalism in the consideration and resolution of civil cases. Normatively, this idea is expressed in strengthening the role of the courts, the lawyer and the prosecutor (Articles 1-4, 11, 12, 22-25, 45, 50 of the Code of Civil Procedure of the Russian Federation). This trend is fully consistent with the constitutional principle of the right to qualified legal assistance throughout the civil proceedings. 2. Strategy and tactics of the work of a lawyer at the pre-trial stages of resolving civil disputes One of the types of legal assistance provided by a lawyer is giving advice и references on legal issues in oral and written form (clause 2, article 2 of the Law on the Bar). The lawyer needs to establish psychological contact with the client within a short time, understand the essence of his claims and provide qualified legal assistance. After making sure that the client's order is legal, the lawyer takes over the case in court. At this stage, the lawyer performs the following legal actions in order to prepare for the trial: talks with the principal, finds out his intentions and requirements, studies the circumstances of the case, gives a legal assessment of the problem, reveals possible ways leading to the resolution of a legal dispute, determines the tactics of conducting a case in court . A necessary, as well as the initial element of the process of providing legal assistance is the preparation of a statement of claim. Suit - this is a demand addressed to the court for the administration of justice, the content of which is the request of the interested person (the plaintiff) to the alleged infringer of the right (the defendant). Chapter 12 of the Code of Civil Procedure of the Russian Federation "Filing a claim" defines the basic requirements for the form of a statement of claim, as well as cases of refusal to accept a claim and leaving it without movement. In other types of civil proceedings, a means of protecting a subjective right and a legally protected interest is a statement, the form and content of which are determined by Art. 124, 131, 267, 270, 271, 282, 302, 308, 314, 419, 424 Code of Civil Procedure of the Russian Federation. Preparation of a representative lawyer for participation in a case in the court of first instance, it takes place at the stage of preparing the case for trial and is subordinated to the general tasks of this stage of legal proceedings: the factual circumstances that are important for the correct resolution of the case are clarified; the law to be followed is determined and the legal relations of the parties are established; the issue of other participants in the process is resolved; the necessary evidence is presented by the persons participating in the case (Article 148 of the Code of Civil Procedure of the Russian Federation). The activity of a lawyer depends on which side he represents in the process. Plaintiff's attorney is obliged to transfer to the defendant copies of evidence substantiating the factual grounds for the claim; file petitions before the judge to demand evidence that he cannot obtain on his own without the help of the court. Defendant's attorney clarifies the claims of the plaintiff and the actual grounds for these claims; presents to the plaintiff or his representative and the court objections in writing regarding the claims; transfers to the plaintiff or his representative and to the court evidence substantiating objections to the claim; submits petitions to the judge for the reclamation of evidence that he cannot obtain on his own without the help of the court (Article 149 of the Code of Civil Procedure of the Russian Federation). At the heart of all this activity of a representative lawyer is Art. 56 Code of Civil Procedure of the Russian Federation, which determines that the party must prove the circumstances to which it refers. During the same period, the representative lawyer collects information, requests certificates, characteristics and other documents from state authorities, local governments, organizations and public associations; interrogates, with their consent, persons allegedly in possession of information relevant to the case. In addition, it collects items and documents that can later be recognized by the court as physical and other evidence; determines who should be called to court as witnesses; whether there is a need to conduct an examination, to involve specialists in the case. When preparing the case for trial, the attorney-representative explains to the principal the procedure for considering the case in court, the procedural rights and obligations of the client. In addition, it is necessary to give certain recommendations regarding behavior in court, as well as what should be said in the course of giving explanations, when answering questions from the court and other persons involved in the case, studies the relevant judicial practice. In the course of preparing for the conduct of the case, the representative lawyer draws up a dossier, i.e. a collection of documents, their copies, extracts and other materials necessary for the conduct of the case. Preparation of a lawyer for the conduct of the case is completed preliminary court session (Art. 152 Code of Civil Procedure of the Russian Federation). The parties in the preliminary court session, therefore, and their representatives have the right to present evidence, argue, and file motions. In a preliminary court session, the objection of the defendant regarding the absence by the plaintiff of the limitation period for the protection of the right and the period established by federal law for applying to the court may be considered. Author: Nevskaya M.A. << Back: Participation of a defense lawyer in the stages of appeal, cassation and supervisory proceedings in a criminal case (Activities of the defense attorney in the courts of appeal, cassation and supervisory proceedings in a criminal case. Participation of the defense attorney at the stage of execution of the sentence) >> Forward: Participation of a lawyer in civil proceedings (Activities of a defense attorney in court proceedings in a civil case. Participation of a lawyer in evidence in a civil case)
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