LECTURE No. 9. Participation of a lawyer in a civil proceeding

1. The activities of the defense counsel in civil proceedings

The author A. M. Palkhovsky noted: “A lawyer in the construction and conduct of the process must play the role of an architect: he owns the plan, he owns the definition of the legal stability of the material used, he owns to determine the conditions of legal balance, it is his duty to manage the course of proceedings, he belongs to the last coup de maitre - a speech during and at the conclusion of the debate. The role of masons and plasterers, of course, must be assumed by other persons.

Any civil process, in his opinion, requires:

1) a clear and completely correct idea of ​​the existence and violation of the right;

2) evidence and violation of this right;

3) presentation of this evidence to the court;

4) defense of their arguments and refutation of the arguments of the opposing party before the court.

These are the four periods through which the civil process passes.

Trial is the central stage of civil litigation. It is characterized by an oral form, the immediacy of the study of evidence and the continuity of the process, with the exception of the time appointed for rest (Article 157 of the Code of Civil Procedure of the Russian Federation). The principle of competitiveness and equality of the parties underlies the trial.

The scope of the rights and obligations of a lawyer at the stage of the trial of a civil case depends, on the one hand, on the relevant part of the trial, and on the other hand, on the granting of certain rights to him by the principal. Thus, the legal representative is not entitled to perform those actions for which he was not authorized, but he is obliged to act in the interests of the principal, solely on the basis of the law.

Since purpose of a lawyer within the framework of this stage is the provision of legal assistance to the represented, insofar as the lawyer contributes to the solution of such a task of legal proceedings as the correct and timely consideration of a civil case.

After the announcement of the composition of the court in accordance with Art. 164 of the Code of Civil Procedure, a representative lawyer has the right to challenge a justice of the peace or a judge, a prosecutor, a secretary of a court session, an expert, a specialist, a translator (Articles 16-18 of the Code of Civil Procedure of the Russian Federation).

The persons participating in the case have the right to make petitions related to the trial of the case: petitions for the exclusion from the process of the submitted written and material evidence that is not relevant to the case; petitions for the disclosure (review) of individual evidence; petitions for the attachment to the case of written and material evidence, audio or video recordings. Petitions must be reasonable and motivated, meet the requirements of the principal in the case. They are resolved by the court after hearing the opinions of other persons participating in the case.

After the presentation of the case, the court shall hear explanations from the plaintiff and the third person participating on his side, the defendant and the third person participating on his side. Depending on the form of representation (alone or together with the principal), a representative lawyer can also give explanations, emphasizing legally significant circumstances and expressing the position of his principal on the case. At the same time, the persons participating in the case have the right to ask each other questions, and the judge has the right to ask questions to the persons participating in the case at any time when they give explanations (Article 174 of the Code of Civil Procedure of the Russian Federation).

Then the court establishes the sequence of examination of the evidence and proceeds to the next stage of the judicial review of the case. After a study and a comprehensive assessment of the evidence, in the absence of statements from the persons participating in the case, their representatives about the desire to make additional explanations, the court proceeds to judicial debate.

Judicial Debate consist of speeches of persons participating in the case, their representatives. The plaintiff and his representative speak first, then the defendant and his representative.

In his speech, the lawyer must express the legal position on the case agreed with the principal, analyze and evaluate the evidence examined by the court. He indicates which circumstances of the case, in his opinion, can be considered proven, and which circumstances have not been confirmed. In conclusion, the representative expresses an opinion about what kind of legal relationship between the parties in question and what law should be followed.

If necessary, use and right to reply, to respond to remarks from persons participating in the case and to give these statements a comprehensive assessment.

In accordance with Art. 231 of the Code of Civil Procedure of the Russian Federation, the persons participating in the case, their representative have the right to familiarize themselves with the minutes of the court session and within 5 days from the date of its signing, submit comments in writing, pointing out the inaccuracies and (or) its incompleteness.

2. Participation of a lawyer in proving in a civil case

In science, there are different opinions regarding the status of a lawyer in civil proceedings. In particular, some scholars agree that a representative lawyer is an independent subject of proof, and not a person who does not participate in the case, has neither rights nor obligations to prove, does not have any independent powers. According to A. A. Vlasov, the basis for the participation of a representative lawyer in proving is the existence of an agreement with the client. To eliminate the misunderstandings encountered in practice, he proposes to improve the warrant form of representation, provide for a specific list of the powers of a lawyer in court and enforcement proceedings, or simultaneously draw up an order and a power of attorney containing specific powers of a representative in the consideration of the case and the execution of the court decision.

The legislator also assigns the right to provide evidence to the parties and other participants in the process, to which he does not include a representative. However, by virtue of a power of attorney issued by the plaintiff or defendant, the lawyer has the right to represent the interests of the client, and, therefore, to take part in the proof as an independent subject expressing the opinion of one of the parties. At the same time, the lawyer has special knowledge that allows him to more professionally carry out the functions assigned to him.

Evidence in the case information about the facts obtained in the manner prescribed by law, on the basis of which the court establishes the presence or absence of circumstances substantiating the claims and objections of the parties, other circumstances that are important for the correct consideration and resolution of the case. Judicial evidence expressed in the procedural form provided for by law includes explanations of the parties and third parties, testimony of witnesses, written and material evidence, audio and video recordings, expert opinions (Article 55 of the Code of Civil Procedure of the Russian Federation). Evidence must have the properties of relevance and admissibility (Articles 59, 60 of the Code of Civil Procedure of the Russian Federation). The lawyer must ensure that the evidence presented to the court is relevant to the case. In addition, there are circumstances that, by law, must be confirmed by appropriate means of proof. Therefore, this circumstance also needs to be checked.

Article 61 of the Code of Civil Procedure of the Russian Federation lists Circumstances under which the parties are exempted from the obligation to prove:

1) circumstances recognized by the court as generally known;

2) the circumstances established by a court decision that has entered into legal force in a previously considered case;

3) the circumstances established by the decision of the arbitration court that has entered into legal force;

4) a court verdict in a criminal case that has entered into legal force is obligatory for the court considering the case on the civil law consequences of the actions of the person in respect of whom the court verdict was passed, on the questions whether these actions took place and whether they were committed by this person.

The representative lawyer must follow the testimony of witnesses, ask questions aimed at extracting the necessary facts; participate in the study of written and material evidence. The study involves familiarization with these documents, their analysis, establishing links between individual evidence. The representative lawyer participates in the interrogation of experts and specialists, if they were involved in the case. The court is obliged to directly examine the evidence. Therefore, if it is impossible to get acquainted with the evidence due to objective reasons in the courtroom, their examination and research is carried out at the location.

In the courtroom or in a room specially equipped for this purpose, it is possible to play an audio or video recording, listen to explanations of the persons participating in the case, involve a specialist in this regard and appoint an examination, if necessary (Article 185 of the Code of Civil Procedure of the Russian Federation).

At the same time, the activities of the representative must comply with the requirements of the law, be professional and qualified, and not violate the norms of lawyer ethics. During interrogations, a lawyer is obliged to take an active position, but under no circumstances be rude to the interrogated person, show respect for his personality. You can not ask leading questions, as well as unplanned ones, the answer to which can harm the principal.

Examining the Evidence includes their evaluation. As part of the assessment of evidence, it is necessary to identify the relevance, admissibility of evidence, their reliability, sufficiency and the presence of interconnection. A representative lawyer, evaluating evidence in a civil case, is guided by his inner conviction, the basis of which is confidence in the need to fulfill his constitutional duty - to protect the rights and legitimate interests of the person who applied for legal assistance.

Author: Nevskaya M.A.

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