Source=WeChat public account|temperature legal circle
Author = Practicing lawyer
Original title = litigation practice: basic writing points of civil agency words
According to its function in civil litigation, it can be concluded that the word of agency refers to a legal document in which the agent ad litem issues a comprehensive opinion on the handling of a case in the court debate stage for the purpose of safeguarding the legitimate rights and interests of the client in accordance with the facts and the law.
As one of the legal documents commonly used by lawyers in handling litigation cases, the importance of writing a good proxy is self-evident.
01
Surrogate Word Basics Writing
1. Content section
1.1 The first part of the instrument
(1) Title: Directly write "Proxy Words" or "Proxy Opinions", or "Proxy Words/Proxy Opinions of the First Instance of XXX Case" to indicate the nature of the document.
(2) Title: The customary salutation is generally "Honorable Judge" and "Honorable Collegiate Panel".
(3) Preamble: Briefly state the general situation of the party being represented and the legitimacy of the litigation as an agent. For example: "XX Law Firm accepts the entrustment of the plaintiff/defendant in this case and appoints XX lawyer to act as the agent in the XX trial of the XXX dispute between XX and XXX. After passing the court investigation, and on the basis of the facts of the case and the provisions of the law, the following agency opinions are issued for reference. ”
1.2 Body
(1) Subparagraph heading
According to the court's summary of the focus of each dispute or the focus of the dispute analyzed by itself, the statement is made in sections, the views are clearly stated, the legal and factual arguments are conducted, and the summary title is recommended.
(2) Segmented viewpoints
- Facts and legal arguments should be fully combined: the litigation status of the represented party, the legal relationship of the case, the litigation claim/defense claim/litigation purpose, the specific facts of the case such as the prosecution and defense opinions, the opinions on the presentation of evidence and cross-examination, and the questions asked by the court, especially by the judge, etc.;
- Syllogisms and total scores are mostly used in the form of discussion, and presumptions, revelations, and refutations should be fully combined with legal and factual basis, and reasonable;
- The text should be read smoothly, except for the necessary parts, it is not recommended to pile up flowery rhetoric;
- The logic is smooth and self-consistent, avoiding conflicts of opinion, especially avoiding self-recognition of facts that are unfavorable to the parties without the consent of the parties;
- Pay attention to the wording of the content and language, do not make speculations without factual basis, and put an end to emotional and inflammatory expressions; grasp the proportions of expression, and do not make arbitrary evaluations.
(3) Summarize opinions
This section mainly summarizes the concluding observations of the full text and makes specific propositions based on them. Such as "to sum up, think...... to dismiss the plaintiff's claim".
1.3 Tail
(1) Ending: The proxy generally does not include the part of the court, and even if it is written, there is no need to write "hereby to the XXXX court". It is common to write at the end of the sentence "The above comments, please adopt them".
(2) Registration: signed by the agent, and the date of publication of the agent is indicated.
2. Format section
2.1 Typography
The overall should be beautiful and generous, the layout should be clear and concise, and the vertical A4 layout must be easy to read as the principle.
2.2 Letters, Characters
(1) Body font and font size: There are no specific requirements, but it is recommended to use the font commonly used in official document writing to display the specifications.
(2) Font size of the title: the title of the document, you can refer to the title of the civil complaint and other documents, bold and increase the font; for the title of the paragraph, it is recommended to bold or adopt a more eye-catching way to show the content, such as the text is in Song style or imitation Song characters, the title can be considered in bold font, or the line spacing can be increased after the first paragraph of the paragraph.
2.3 Text and punctuation marks
The full text should be free of unsophisticated errors such as typos, and punctuation should be applied accurately. There are homophones in legal terminology, but the meaning is very different, should be paid special attention to, please refer to the "Recommended Collection|". Classification and Identification of 63 Groups of Common and Easily Confused Legal Terms.
The reference format is as follows:
02
Advanced Proxy Writing
Not all cases need to submit a representation, often due to the fact that the trial time cannot be fully guaranteed, the case disputes are quite different, the evidence is large and the case is complex, etc., the lawyer needs to use the representation to achieve the trial effect and litigation purpose, so in addition to the basic points of the above format and other aspects, it is not easy to write a good representation.
It can be said that the representative word is the most lengthy and the most argumentative in the whole process of the lawyer's representation of the case, and it is also a legal document that most fully demonstrates the lawyer's writing skills and legal level, but it is by no means a work deliberately completed to ensure the integrity of the litigation procedure, nor can it be simply copied or repeated in the prosecution or defense and trial opinions. The writing of surrogate words requires certain thinking, methods and many practical essentials, and requires continuous learning, training and accumulation.
2.1 Writing thinking of surrogates
The writing of any legal document has its specific presentation object. From the perspective of the function of the agent's words, it is to explain the agent's overall analysis and handling opinions on the case, attract the attention of the referee and persuade him to adopt the views advocated by the agent, so as to protect the legitimate rights and interests of the parties to the greatest extent. Therefore, it is better for the proxy to be adopted in its entirety by the referee.
It is rare for a case to deal with multiple legal relationships at the same time, and it is usually a dispute arising under one legal relationship, where one party asserts one or more claims. If there are multiple claims, before writing the statement of representation, between the multiple claims under a legal relationship, if the first claim is established before the second claim is established, then the proof of the first claim will be used as the banner to guide the opinion of the agent.
In addition, it is necessary to examine the case from the perspective of the referee as much as possible, understand what the judge will pay attention to, and then pay attention to, and put forward his own representation opinion.
2.2 How to write surrogates
As the agent of the party making the claim, the method of proof is mainly used in the writing of the statement of representation, that is, by combining the evidence of the case, the facts that can be proved, the legal provisions, etc., and the conclusion that supports the establishment of the party's litigation claim is reached by positive reasoning.
As a party to the defense, it is usually the case that the other party's point of view is wrong or that the claim cannot be established, and it is often refuted by means of rebuttal.
The above two methods of positive reasoning and negative refutation are not completely fixed, and specific cases can be compatible.
2.3 Elements of Proxy Writing
Familiarity with the facts of the case is the basis for writing a good surrogate. Before writing a proxy statement, it is necessary to have a comprehensive grasp of the case and repeatedly analyze the opinions and evidence of both parties. At the same time, it is necessary to review the trial situation (it is better to have a trial transcript), pay attention to the questions asked by the judge during the trial, and think about the parts of the trial debate that were not played well.
Achieving litigation purposes is the subject of representation writing. The representation mainly focuses on the key issues of the trial dispute, and analyzes the facts and legal opinions involved, so as to avoid deviating from the subject matter of the litigation.
Adequate legal research is the backbone of writing a good surrogate. Not all cases need to submit a proxy statement, and it is not a case in which the proxy is written will necessarily be able to achieve the desired result, but a well-argued and accurate proxy may make an obscure case shine in the dark between "can" and "cannot".
2.4 Key points of writing surrogates
There are no two cases that are identical, and naturally there are no identical surrogates, so in terms of the practical points of proxy writing, the author can only make the following general summary within the scope of existing cognition in such a non-professional and non-comprehensive way:
(1) Is the proxy detailed and comprehensive, or concise?
In a litigation case, in addition to the complaint, written documents such as the proxy and the reply are not documents that must be submitted, but the proxy word, as a legal document applied at a relatively later stage of the case procedure, basically covers the main points of view of the parties in the early stage of the litigation, defense, presentation of evidence, cross-examination and debate, and on the basis of the part of the agency opinion that has duplicate views, at the level of understanding, it is absolutely impossible to simply copy and repeat the trial opinion.
Just as a film and television drama can't use equal effort in the roles of the leading and supporting roles, the supporting roles follow the main story line in order to enrich the story. The same goes for surrogates. The agent word is to indicate the agent's systematic view on the handling of a case, which should be focused and detailed, and the core disputes of the case should be discussed in a focused manner, and then the non-focus can be briefly expressed. Moreover, not all issues in the case are controversial, and the uncontroversial issues are still discussed at length in the surrogate, which is obviously a waste of pen and ink.
(2) Is the proxy written before or after the trial?
Cases in which a statement of representation can be written well before trial may not be required to submit a statement of representation in the end. From the perspective of case practice, even if the vast majority of representations are submitted after the trial, it is still necessary to prepare representations before trial for slightly more complex or controversial cases, which is mainly reflected in:
The preparation of written statements before trial can be used as an effective supplement to the prosecution or defense opinions, and so that the main points are not omitted during the trial, and the relevant opinions or debates will not be pale or hasty when expressing relevant opinions or debates, even if the trial situation has changed from the preset, the representative words can be supplemented and improved in a timely manner after the trial is over, and the agency opinions can be served when the referee's memory has not been diluted.
At this time, on the basis that the referee has a preliminary mental evidence of the case after the trial, no one can ensure that the referee will carefully read the written opinion after the trial, and then shake or change the mental evidence, and the result and effect will naturally be questioned or discounted.
(3) What is the desirability of a preliminary representation opinion?
Dialectics tells us that everything has two sides, and the correct relationship of "two sides" in dialectics is that the two sides of the contradiction are dependent or mirrored, and there is no shield without a spear, and there must be a shield if there is a spear. Therefore, we often use the phrase "because of this, how XXX should be" in our daily discourse and debate. Even if it's ......" and "take a step back ,......" expressions.
After all, it is through the all-round discussion of both sides of the positive and negative sides, and the intention of "taking a step back" as a preparatory opinion is naturally to hope to confirm the reliability of the positive opinion through the negative discussion. However, you can't retreat again and again, otherwise you may not be able to be self-consistent.
(4) How to improve the writing ability of surrogates?
Read more, ask for advice, read more, search more, polish more, and hand it over to others for revision and discussion if possible. Regarding this, the author is still on the road and has not yet entered the best situation.
(5) How to submit the proxy statement after the trial?
There are many reasons why it is difficult for judges to meet, so the possibility of submitting the representation in person is rarely the opportunity in practice, and most of them are submitted after the trial through the special window for receiving and transferring materials by the case-handling unit or by EMS.
It is advisable to submit the statement of representation for a long time after the end of the trial, and after the written finalization and communication with the parties is completed, it should be submitted as soon as possible, and it is best to note clearly the case number, material name and other details in writing, express delivery slip or material receipt and transfer form when submitting, so as to ensure that the material circulation is timely and accurate.
At last
In short, as a medium of communication between the parties, agents and referees, we need to take it seriously, be responsible for the case, and be responsible for ourselves, and hope that your agency opinions will be adopted more.
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