We hope you never find this article useful in practice. But still, the information will not be superfluous. However, many people find themselves in situations where the question of how to behave at a court hearing becomes relevant. Moreover, you can be present in the courtroom in different roles: plaintiff, defendant, witness... And in this important room there are certain rules of behavior that all parties must adhere to.

The rules of conduct for participants in the meeting are regulated by Article 158 of the Civil Procedure Code.

General rules

1. When a person enters the courtroom, he must present identification to the attendant at the entrance.
2. If you have been summoned, you must inform the secretary of your arrival. The summons will indicate the number of the office you should go to.
3. Mobile phones should be turned off before entering the hall.
4. When judges enter the courtroom, those present must stand up.
5. Testimonies, statements and oral appeals should only be made while standing.
6. You can add to the story only with the permission of the court.
7. Orders to maintain order are mandatory for all those present.
8. Address the judge only as “Your Honor.”
9. You should not interrupt the judge or other participants in the process.

Conversation with the judge

Behaving respectfully towards the servants of Themis is prescribed not only by the rules of decency, but also by law. While at a court hearing, it is very important to remember several important rules:

You need to address the judge with the words “Your Honor,” and not by your first name and patronymic.

• Jargon and profanity will not be tolerated. Excessive emotionality is undesirable, although complete indifference to what is happening is also not an option.
• Insults and outright rudeness towards court staff will almost certainly complicate the case. However, it is also important to remember your rights. If the judge’s behavior is incorrect towards any of the parties, you can file a complaint with the appropriate authority. You can appeal a court decision to a higher authority.
• The optimal tone is without ingratiation, but also without insolence, calm, confident, friendly.
• If you need to hand over something to the judge, for example a document, you don’t need to rush out and carry it. Transferring is the responsibility of the secretary or manager.

When is it okay to talk?

Regarding how the plaintiff and other parties to the process should behave in court, it is important to mention that you can answer questions and ask them not in in no particular order, and then when the judge proposes to do so. IN otherwise the meeting will turn into a farce, and the judge will have to call everyone to order.

If a court participant has something important to say, you can raise your hand. But before speaking, you still need to wait for the judge's permission.

Shouting and emotional comments are not allowed - even when one of the parties hears something with which it categorically disagrees, and there are a lot of such nuances. Each party will be given a chance to express their point of view and evaluate everything said by other participants in the process.

Prohibited

• You cannot come to a hearing in court while intoxicated, under the influence of drugs, or smoke.
• Bring with you dangerous items, including weapons and tools, and even toy weapons, as well as prohibited substances.
• enjoy mobile phone. But it is possible for the parties to the process to record the meeting on a dictaphone (as well as take notes), and even video recording is allowed, but for this you need to submit a corresponding request in advance.
• Conduct spontaneous conversations that are not related to the matter.
• Bring small children (except for cases where minors act as participants in the process or witnesses).
• Bring food with you. Water and other non-alcoholic drinks are acceptable.
• You cannot take animals with you.
• Leave the hall without permission. If you really need to leave the premises, you can apply to the court with a corresponding petition.
• You cannot bring large suitcases, bags (folders, briefcases, handbags are acceptable), as well as bicycles and other vehicles.

Why talk

More and more often, domestic entrepreneurs have to act as defendants in lawsuits. In principle, there is nothing wrong with this: all over the world, suing someone is considered almost a sign good manners. And if we say that we are building a rule of law state, then we must admit that the most civilized way of various disputes is litigation.

Unfortunately, communication between business and justice occurs not only within the framework of arbitration or civil processes. Criminal proceedings against entrepreneurs have now become not uncommon, often based on “inflated” criminal cases initiated by a law enforcement agency for “quantity”.

After all, most often it is in court that the whole truth emerges, far-fetched accusations are dispelled and false evidence is swept aside. But, of course, in order for all the i’s to be dotted in court, both qualified legal assistance and, of course, the defendant’s own efforts are required.

When to speak

The first thing you should know is that during the trial you (even if you have a lawyer) will have to appear in person several times.

In a civil case, if you are the plaintiff, you will need to tell the court whether you support your claims. If you are a defendant, do you recognize the plaintiff’s claims? In addition, you, as the plaintiff or defendant, will need to answer the question of whether you want to enter into a settlement agreement. After which you will need to provide a direct explanation of the essence of the dispute.

For the plaintiff: the essence of the dispute is usually set out in the statement of claim, and you only need to restate what is already written in the claim. If it is impossible to do this briefly, so as not to waste time and effort, it is enough to say that everything is set out in the statement of claim and you have nothing to add. After this part of the process, the plaintiff has to answer questions from the court and the opposing party regarding the essence of the stated claims.

For the defendant: the essence of the dispute is set out in the explanation. You can retell it or, referring to the review, say that you cannot achieve anything yet. And accordingly, get ready to answer questions.

In civil litigation, both the plaintiff and the defendant are repeatedly given the floor to pose questions and answers to each other. After examining all the circumstances of the case, including questioning witnesses, examinations, etc., the court proceeds to the debate.

Debate is the most important and final part of the civil process, where the parties, analyzing each other’s answers, present to the court their vision of the dispute. The right to be the first to speak in the debate is granted to the plaintiff and his representative. Then the defendant and his representative speak.

Since this part of the trial is the most significant and decisive, special attention should be paid to the preparation of speeches in the debate.

The situation is somewhat different with speeches in criminal proceedings if you act as a defendant. You should be aware that in a criminal trial you have much less opportunity to speak.

If you have a lawyer, you will have to be content with only a few brief opportunities to speak, and then only to answer questions. After the court reads the indictment, you need to answer whether you understand the charge, whether you plead guilty and whether you want to testify. This is followed by an interrogation of the defendant, where you will have to answer questions from the participants in the process (judge, prosecutor, lawyer). You do not have the right to ask questions to your opponent (prosecutor) or the court. However, you have the right to ask questions to invited experts and witnesses, etc.

A lawyer speaks in court debates. The only opportunity for the defendant to speak is to give the last word. But if you refused the services of a lawyer (you made this decision yourself or under pressure from the investigation) and are defending yourself on your own, then study these recommendations in full, because you will have to speak at all stages of the trial.

In both the civil code and the criminal code, the speaker evaluates the circumstances established during the trial. The length of the speech is not limited by time, the main thing is not to go beyond the scope of the case under consideration and refer only to the evidence that was examined by the court.
However, if during the judicial pleadings (or debates) it becomes necessary to clarify new circumstances or examine new evidence in the case, the court will have to resume consideration of the case, and then continue the pleadings in the general manner. It should be noted once again that the success of the case largely depends on this final stage of the process, the stage of summing up the results.

Does it matter how you speak in arbitration proceedings, since in arbitration proceedings it is usually only the documents that “speak”? Undoubtedly, if a controversial issue is being resolved, which, due to contradictions in the legislation, can be resolved in favor of both one and the other side. This is, perhaps, the case when in the arbitration process it is the judge’s emotions that may be decisive, and not the law, which allows for different interpretations. The persuasiveness of your speech determines whose side the court will take.

Judicial Speech Plan

Don't speak impromptu. Even if you know the circumstances of the case that can help you win the case like the back of your hand and are free to navigate them, do not rely on memory and inspiration. From excitement, you can get confused in the little things, missing something important.

In order to perform well, you need to prepare.

Break your speech into three main parts: opening, main and closing.

In the introductory part, you should arouse keen attention and interest in the listeners, thus establishing contact with the audience. Try to ensure the credibility of the position you will present. The introduction should be short and, if possible, extraordinary (use your imagination). You need to speak clearly and confidently, while avoiding unnecessary pathos.

To begin with, it is advisable to announce any relevant fact, the truth of which is obvious and indisputable. By doing this, you make it clear to the court that further discussion will be about the same indisputable facts.

In the main part of the speech, put forward arguments justifying your procedural position. The foundation of this part is a description of the factual circumstances of the case. This should be presented as a vivid picture of the events that happened to you. In the process of building evidence, some provisions should be substantiated with the help of others proven earlier. All evidence should be built into a system that refutes the versions of your opponents and confirms your version.

The main part should be completed with the most significant evidence, after which clear conclusions should be drawn on the essence of the case.

The final part of the speech should be short and expressive. Try with all sincerity (this does not mean with utmost frankness) to answer the questions that the court will have in the deliberation room. This part of the judicial speech should contain your final position and a specific request to the court. It would be useful to “curtsey” to the court, demonstrating your trust in it: “In my opinion, the respected court objectively, deeply and comprehensively examined all the circumstances of the incident, which is confirmed by the materials of the case.”

How to make a speech effective

First, let's talk about building evidence that you are right.

• The best weapon of argument is arguments on the merits of the case. Appealing to the enemy’s personality is evidence of the weakness of your position.
• Facts and evidence should be divided into necessary and useful, inevitable and dangerous. The necessary and useful should be maximally strengthened and developed through intensifying repetition. You can recognize the inevitable and find a way to explain it from a position that is beneficial to you. It is better to avoid dangerous information (information that can be interpreted not in your favor), but if this is not possible, present it in a light favorable to you. For example, if an illegal search was carried out at your place, all documents were confiscated “in bulk” and after a period of time, “wrong” forms, invoices and other compromising documents were discovered among them, the involvement of which in your company cannot be proven, assume that the documents were confiscated without witnesses and an inventory, but were discovered only later. Maybe they were planted on you on the sly?
• You should not prove the obvious, nor should you prove anything more than necessary. This clutters the speech, makes it drawn out, uninteresting and distracts the audience's attention to already proven facts. The court may be so distracted that it does not hear the most important thing.
• Provide an effective presentation of the main evidence or thesis, prepare the audience for its perception by intensifying emotions.
• Refuse dubious, unreliable arguments, do not try to say a lot, the quality, not the quantity, of arguments is important. Do not give your opponent the opportunity to destroy your unreliable argument, which would not play a special role.
• Agree with your opponent's secondary statements - this will make you fair in the eyes of the judges.
• If your direct evidence is significant, you should carefully analyze each of them, but if they are insignificant, present them in a common connection (the insufficiency is compensated for by a single focus).
• You should start with indirect evidence (if any) and finally strengthen your position with direct evidence.
• Organize your arguments according to their increasing importance. It should be remembered that in a speech you can only refer to the evidence that was examined at the court hearing.
• Never try to explain something that you yourself do not understand well, since weaknesses or inaccuracies, firstly, attract the attention of listeners, and secondly, give the other side the opportunity to accuse you of distorting the facts or lying.

Refuting your opponent

Judicial speech is based not only on the presentation of facts that prove your own case. For your position to become dominant, you will have to smash your opponent's arguments (or at least a significant part of them) to smithereens.

Refuting:

• Look for incorrect generalizations made by your opponent.
• Don't get too stressed when responding to your opponent. Do it lightly and casually.
• To object to your opponent, use his own arguments.
• Contrast his words with facts.
• Deny what your opponent cannot prove.
• Do not leave any weighty argument from your opponent unanswered.
• Do not object to reasonable evidence that is not in your favor, find an explanation for it that would reconcile this evidence with your position.
• Don't bother too much about refuting something that is obvious to everyone as improbable.
• Carefully examine the facts recognized by the enemy, use them for your own purposes.
• If irrefutable evidence is ignored by your opponent, emphasize its irrefutability, but do not stoop to personal attacks.

General rules

To focus the court's attention on details that are important to you, you can use the technique of intensifying repetition. For example: “They seized documents despite the fact that there were no legal grounds for this, they seized documents without drawing up a protocol and inventory, they seized documents that were not even related to the financial and economic activities of the enterprise.”

To ensure that the audience does not get tired or distracted during the speaker’s speech, it is recommended to read less and speak more without paper, emphasizing the most significant words. The speech of a person speaking, in contrast to a person reading from a text written in advance, is more lively, and therefore makes a greater impression on the audience. This does not mean that the speech should not be written in advance. And thought out to the smallest detail, and written down, and, if necessary, memorized.

If you see that the listeners are tired or starting to get distracted, take a short break, just about five seconds. The listeners will have a rest, and you will collect your thoughts.

The speech should be emotionally charged, but not hysterical. In court you must keep yourself within the bounds of decency. Natural emotions, if they overflow, are better contained. A person who tries to restrain his emotions produces much more best experience than hysterics (especially if this storm of emotions is feigned). It is especially unacceptable to interrupt the judge with shouts, threaten your opponent, or insult those present (no matter how much you would like it). After all, in addition to making a negative impression on the audience, you can receive an administrative penalty for contempt of court.

Psychological tricks

You can enhance the impression you make with your performance using simple but reliable psychological techniques.

Use:

• Bet on stereotypical thinking audience. For example, one of the stereotypical principles says: “If an authoritative person says THIS, then THIS must be true.” Conclusion: use the opinions of experts and specialists more often.
• Use the rule of contrast perception. Remember that a serious requirement appears less serious when compared to a higher requirement. If you want to receive monetary compensation, demand an amount several times higher than desired. And then back down to the desired amount.
• The next technique is the universal rule of mutual exchange. It says that people are obliged to give in to each other and pay for what they receive from others. That is, if I conceded something to you, you already owe me. Give in on something unimportant to you. After this, you will have “more rights” to ask for anything, since you will already be “owed”.
  When concluding a settlement agreement, offer favorable terms and give your opponent time to think. And only after your opponent makes a decision, add a condition that is unpleasant for him. It will be difficult for him to back down, because he has already thought through what benefits he will derive from your proposal. Now he will hold on to the deal, even if its terms have partially changed for the worse.
• Don't fall for such psychological tricks yourself. If you feel that you are being “played”, try to assess the situation from the outside and benefit from it (for example, gratefully accept a concession without offering anything in return).
• And one last thing. When addressing the court, say “dear court”, “dear presiding judge”, and not “Mr. Judge” or “Comrade Judge” (who knows, who the judge considers himself to be - a comrade or a master, it is easy to make a mistake and cause hostility). There is also such an address to the judge as “your honor,” but a person of the old school may not like that either. It is unacceptable to call a judge by his first name or patronymic.

Techniques used in speech must be correct and tactful. Do not stoop to personal, humiliating attacks on the participants in the process.

Approach your presentation creatively and with inspiration. Be confident. Imagine what some great lawyer, for example, Koni or Plevako, said in your place, whose speeches were distinguished by originality, bordering on paradoxicality, and had an unfailing effect on the participants in the process.

Consideration of the case on the merits, as a rule, takes place in a court hearing with the participation of all interested parties. The arbitration process is predominantly “written” (all evidence and arguments are contained in the documents presented to the court). But an oral presentation by a lawyer makes it possible to highlight the most important thing in his position and give it additional persuasiveness. That is why it is important for the plaintiff to know how to behave in a court hearing of the arbitration court, in what order to submit motions, how to participate in debates, etc.

It is almost impossible to describe the algorithm of actions in all possible situations that may arise in a court hearing of an arbitration court. However, the basic rules, tricks and subtleties of behavior at various stages of the trial are outlined below.

Procedure at the court hearing

The first thing the plaintiff needs to pay attention to is the observance of order in the court hearing of the arbitration court.

During the court hearing, the plaintiff must comply with the following basic rules:

• when the judge enters the courtroom, all those present stand up;
• participants in the process address the court “Dear Court” (but not “Your Honor” and not by name and patronymic);
• participants in the process, standing, give their explanations and testimony to the court, ask questions to other persons participating in the case, and give answers to the questions asked of them;
• participants in the process are required to obey the orders of the presiding judge;
• Participants in the process, due to the principle of publicity and openness of the trial, without special permission from the court, can record what is happening at the court hearing in writing (including in social networks and electronic media using their own technical means) or using audio recording means. Filming and photography, video recording, broadcasting a court hearing of an arbitration court on radio, television and on the Internet information and telecommunications network are permitted only with the permission of the judge presiding at the court hearing;
• Everyone in the courtroom listens to the court's decision while standing.

Such rules are established in Part 7 of Article 11 and in Article 154 of the Arbitration Procedure Code of the Russian Federation, as well as in paragraphs 2 and 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 2012 No. 61 “On ensuring transparency in the arbitration process.”

Deviations from the general rules are also permissible only with the consent of the judge. In case of non-compliance with this procedure, the violator may be warned and then removed from the courtroom. This applies to both the party in the case and its representative or any other participant in the process (resolution of the Federal Antimonopoly Service of the Moscow District dated July 21, 2011 in case No. A40-8486/10-64-771). In addition, the court may impose a judicial fine on the plaintiff (his representative), present at the court hearing, for his contempt of court (Part 5 of Article 119 of the Arbitration Procedure Code of the Russian Federation).

In addition to the rules listed above, which are directly enshrined in the Arbitration Procedural Code of the Russian Federation, there are several more rules that are not directly stated in the law:

1. There is no need to disrupt the process.

The fact is that a court hearing has a very definite and logical structure: first, the composition of the court is announced, the attendance of the participants in the process is checked, then petitions are filed and resolved, and only then the case is considered on the merits, judicial debates take place, and a judicial act is issued. The entire course of the process is directed by the judge (or the presiding judge in the collegial composition of the court). And when one of the parties disrupts the process, this most often causes a negative reaction from the judge.

Examples of attempts to disrupt the process are varied: a party may file motions prematurely; during the consideration of the case, challenge her for reasons known to her even before the start of the process; interrupt a representative of the other side during his speech; present evidence during court arguments, etc.

To eliminate such violations on your part, you need to remember at what point in the process you can perform certain actions, and also learn to listen carefully to the judge and other participants in the process, even if for some reason they want to object.

2. There is no need to engage in emotional altercations with procedural opponents during a court hearing.

The fact is that representatives of the opposing party often commit various provocative actions towards their procedural opponents. Such actions can not only disrupt the course of the process, but also damage your authority in the eyes of the judge. In such cases, you need to remain calm and not react to the negative and inappropriate attacks of your opponents. Judges always welcome such correct behavior. In addition, during the court hearing, the party or its representative will be given time to express their objections.

What to do if the defendant behaves aggressively, is clearly trying to provoke or hurt

3. It is necessary to record what is happening at each court hearing using audio recording devices (except for cases when the hearing of the case takes place not in an open court, but in a closed court session). It is worth recording a court hearing with your own voice recorder even though during each meeting the court takes notes using its own audio recording devices (Part 1 of Article 155 of the Arbitration Procedure Code of the Russian Federation).

This is due to several reasons:

1) the plaintiff will not have to waste time getting a copy of the audio recording of the court hearing from the arbitration court;

2) it often happens that when listening to an audio recording made by the arbitration court itself, nothing is heard except the words of the judge;

3) there is a risk that a technical failure will occur during the court hearing in the arbitration court. This may result in the loss of the audio recording of the court hearing.

Therefore, it is advisable for the organization to introduce a rule according to which representatives of cases in court conduct an audio recording of each open court hearing in each court case. Then, depending on the outcome of the court hearing, the records are deleted or stored on a separate medium. Subsequently, such records can be used to defend their interests in higher courts or when considering other cases involving the same parties.

Due to the principle of publicity of court proceedings, the judge does not have the right to prohibit the use of a voice recorder or other sound recording device to record the progress of an open court hearing on the grounds that the arbitration court already records each court session using audio recording means. According to the clarifications of the Supreme Arbitration Court of the Russian Federation, mandatory recording during each court session of the arbitration court of the first instance using audio recording means does not prevent the exercise of the right of persons present at the court hearing to record the progress of the court session using their own audio recording means (paragraph 3, clause 3 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 2012 No. 61 “On ensuring transparency in the arbitration process”).

Confirmation of your authority to participate in the case

The parties, other persons participating in the case and their representatives are required to confirm their authority to participate in the court hearing. The authority is verified by the arbitration court at the beginning of each court session (Part 1 of Article 63 of the Arbitration Procedure Code of the Russian Federation). At the same time, the arbitration court decides on the issue of admission to participation in the court session of persons participating in the case and their representatives on the basis of an examination of the documents presented to the court ( Part 2 of Article 63 of the Arbitration Procedure Code of the Russian Federation).

In order for the plaintiff (his representative) to take part in the trial, he needs to confirm his authority in the arbitration court (Article 63 of the Arbitration Procedure Code of the Russian Federation). This means that it is necessary to present to the court documents that confirm the procedural status of both the plaintiff himself and his representative.

The arbitration court refuses to recognize the authority of the relevant person to participate in the case (and indicates this in the minutes of the court session) if this person has not presented Required documents in confirmation of authority or submitted documents that do not meet the requirements established by the Arbitration Procedural Code of the Russian Federation and others federal laws(Part 4 of Article 63 of the Arbitration Procedure Code of the Russian Federation). For example, an arbitration court may refuse to recognize the powers of a representative by proxy if:

• the power of attorney has expired;
• the date of issue of the power of attorney is not indicated;
• the power of attorney contains unspecified corrections;
• the power of attorney was issued to another person;
• the power of attorney does not contain the authority to conduct business in an arbitration court (for example, if the power of attorney expressly states that the represented person instructs the representative to represent his interests only in courts of general jurisdiction);
• The arbitration court received information about the revocation (cancellation) of the power of attorney.

The plaintiff's representative is obliged to present a true power of attorney to the arbitration court at the court hearing. It is attached to the case materials or returned to the representative in exchange for the copy presented by him. In this case, the copy must be properly certified. A duly certified copy of the power of attorney is, in particular, a copy of the power of attorney, the accuracy of which is certified by a notary or the arbitration court hearing the case. Such clarifications are contained in paragraph 7 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 99 “On certain issues in the practice of applying the Arbitration Procedural Code of the Russian Federation.”

In practice, the power of attorney is presented to the arbitration court for the first time in the original and in a copy. The original power of attorney is returned to the representative, and its copy is certified by the court and stored in the case file. Subsequently, only the original power of attorney is presented to the court with an explanation that a copy is already available in the case materials. If during the trial the representative was issued a new power of attorney to replace the old one, then a copy of it must also be attached to the case materials.

Applications and petitions

In order for the plaintiff to exercise any of the rights provided for by the Arbitration Procedural Code of the Russian Federation, it is necessary to submit a corresponding petition or make a corresponding statement during the process.

Here you need to keep the following in mind.

1. It is necessary to take into account the time frame when the relevant petition or application can be made.

The fact is that individual motions must be filed before the start of the trial. For example, a request to consider a case with the participation of arbitration assessors must be submitted no later than one month before the start of the trial (paragraph 1, part 2, article 19 of the Arbitration Procedure Code of the Russian Federation).

Other requests must be made at a court hearing. And if the plaintiff makes a premature request or misses the deadline for filing an application, then in this case the arbitration court will not consider it on the merits.

For example, an application to challenge a judge or court panel for general rule must be done before the start of the consideration of the case on the merits, that is, before the arbitration court proceeds to hearing the parties’ explanations and examining other evidence (paragraph 1, part 2, article 24 of the Arbitration Procedure Code of the Russian Federation).

On the other hand, during the court session itself, petitions cannot be submitted before the arbitration court checks the attendance of the participants in the process at the court session and clarifies the question of the possibility of hearing the case.

2. In order for the court to grant such a request, it must be motivated. In other words, you need to make appropriate arguments and, if possible, justify them with relevant evidence.

The Arbitration Procedural Code of the Russian Federation, as a rule, directly states how exactly one or another petition or statement should be motivated. For example, in order for the court to take measures to secure the claim, the plaintiff needs to prove that failure to take such measures may complicate or make impossible the subsequent execution of the judicial act or cause significant damage to the applicant (Part 2 of Article 90 of the Arbitration Procedure Code of the Russian Federation). In order for the court to grant the plaintiff’s request for evidence, it is necessary to indicate exactly what circumstances significant for the case it can confirm, as well as the reasons why the plaintiff cannot obtain such evidence on his own (paragraph 2, part 4, article 66 of the Arbitration Procedure Code of the Russian Federation).

At the same time, since the process takes place in the form of a competition between opposing parties, the judge resolves all received petitions and statements, taking into account the opinions of all interested participants in the process. Therefore, other persons participating in the case have the right to present arguments and evidence against the satisfaction of the stated petition or received application. In this regard, one must be prepared for the fact that even to a reasoned request, the plaintiff may receive a reasoned objection from the defendant, and as a result, the court may not grant this request.

3. If the plaintiff or his representative intends to file a particular petition in advance, then it is advisable to prepare it in writing, setting out, if necessary, the reasons for such a petition.

Proving the circumstances of the case

In the modern arbitration process, the court itself cannot collect evidence in the case. As a general rule, the obligation to prove the circumstances that the plaintiff refers to in support of his position in the case rests entirely with the plaintiff himself (Part 1 of Article 65 of the Arbitration Procedure Code of the Russian Federation). That's why trial occurs in the form of a competition between the parties in proving those circumstances to which they refer to justify their claims and objections.

In this case, the plaintiff must actively participate in proving the circumstances of the case. This is due to the fact that it is he who is the initiator of the trial, and therefore it is he who needs to prove all the facts that are included in the subject of proof in the case. Otherwise, the following may occur for him: Negative consequences.

A. If the circumstances referred to by the defendant are not challenged by the plaintiff or do not provide evidence to refute them, then such circumstances will be considered established (Part 3.1 of Article 70 of the Arbitration Procedure Code of the Russian Federation).

There is already an example in the practice of the Presidium of the Supreme Arbitration Court of the Russian Federation, when the court decided that a participant in the process, who did not challenge the arguments of the other party, thereby recognized them. True, in this case we were talking about the plaintiff’s arguments, which the defendant did not challenge. However, exactly the same rules will apply to the plaintiff if he does not respond to the defendant’s statements and arguments in a timely manner.

For this reason, the plaintiff needs to respond to all the arguments that the defendant brings in support of his objections, if he does not agree with them, both through oral objections and by presenting other evidence, including written evidence.

B. If the plaintiff cannot prove the facts to which he refers to in support of his position in the case, then the court may issue a judicial act dismissing the claim.

IN. If the plaintiff does not present evidence to the court of first instance, then during a subsequent appeal of the judicial act it will be very difficult or even impossible to do so. The fact is that the parties are obliged to present all the evidence they have to the court of first instance. After the consideration of the case on the merits in the court of first instance, the opportunity to present evidence in the case is either significantly limited (in the court of appeal) or excluded (in the courts of cassation and supervisory instances).

In the process of proving the circumstances of the cases that support the position in the case, the plaintiff also needs to take into account the following rules.

1. There is no need to read procedural documents.

When the court gives the floor, you need to formulate your thoughts as clearly as possible. After all, if everything can be stated on paper in great detail, then it is better to tell it briefly and clearly. For example, when the court gives the plaintiff the floor to give explanations, the plaintiff’s representative should not read out the statement of claim - the judge can read it without outside help. The main thing here is to convey to the court the most important thing that you should pay attention to. To do this, it is useful to write out the abstracts of your speech in advance in order to clearly, clearly and concisely justify your position on the case in court. If the speaker refers to any evidence, then for the convenience of the judge it is better to immediately name the numbers of the sheets of the case where this evidence is located. If the representative of the party begins to read procedural documents, then after some time the judge stops listening and loses concentration. In this case, the main task - to convey to the court your position on the case with the help of explanations - will not be completed.

2. You need to ask provocative questions to the opposite side.

After the opposing side speaks, the judge will certainly provide an opportunity to ask clarifying and specific questions. It is better to prepare them in advance, since not everyone can come up with them promptly. At the same time, some questions may appear during the speech of the procedural opponent if he voices information that is unfavorable for him (for this it is better to immediately make appropriate notes during the speech).

It makes no sense to ask questions just like that, that is, if this cannot in any way confirm the correctness of your position. For example, the question: “Is it true that you entered into a lease agreement for real estate that did not exist at the time the agreement was concluded?” is unlikely to be able to help in any way if the case contains a corresponding lease agreement for a future property, and no one disputes the fact of the conclusion of the agreement. At the same time, if the plaintiff wants to prove that the defendant abused the right to conclude a lease agreement for a future property, since at the time of signing the agreement he knew that the construction of such an object on the disputed land plot was impossible, then the question is: “Which at the time of signing the agreement lease of future real estate, have you made preparations to subsequently fulfill the concluded agreement, and how is this confirmed?” may confuse the opponent and provoke him to confirm the fact needed by the plaintiff.

Judicial debate

Not everyone understands the purpose and purpose of such a stage of consideration of a case in the court of first instance as judicial debate. At the same time, misunderstandings occur both on the part of the arbitration court and from the position of the participants in the arbitration process. In practice, this is expressed in ignoring this stage in principle (in some cases - on the initiative of the presiding officer himself, who either does not announce the transition to judicial debate, or asks the parties whether they need judicial debate, to which he receives a negative answer) or simply reading by the parties of procedural documents ( statement of claim, response to the statement of claim, additional explanations, etc.).

In fact, the importance of judicial debate in the process of considering civil cases can hardly be overestimated. The significance of judicial debates is that they help to better understand the factual circumstances of the case under consideration, to better understand the meaning of such factual circumstances, as well as the evidence that supports them. Moreover, judicial debate is the last opportunity for the parties to eliminate all existing doubts and disagreements in the interpretation and assessment of certain facts, as well as evidence supporting them, that took place at the previous stages of the trial.

Judicial debates consist of oral presentations by persons participating in the case and their representatives (Part 2 of Article 164 of the Arbitration Procedure Code of the Russian Federation).

The plaintiff speaks first.

In his speech, he substantiates his position on the case. In general, the speech of the plaintiff or his representative during the judicial debate should be such that the court, after hearing it, understands for itself:

• why the case should be resolved in favor of the plaintiff;
• how the court needs to justify its decision in favor of the plaintiff (including with references to the existing practice of arbitration courts);
• why there is no reason to make a decision in favor of the defendant;
• what negative consequences may occur if the court decides in favor of the defendant.

During the judicial debate, there is no need to read out any procedural documents that are already in the case file. When speaking in court debates, you need to concentrate as much as possible on your main arguments, as well as indicate the evidence that supports these arguments, with references to the case materials. In addition, it is necessary to point out the inconsistency of the defendant’s main arguments, show the court why the defendant’s arguments are unfounded, what circumstances of the case and the evidence available in the case they contradict, again with reference to the case materials.

It is very important to keep in mind that during the judicial debate, the speaking party does not have the right to refer to circumstances that the arbitration court did not clarify, as well as to evidence that the arbitration court did not examine at the court hearing or that the arbitration court declared inadmissible. Such rules are established in Part 4 of Article 164 of the Arbitration Procedure Code of the Russian Federation.

After the plaintiff, a third party makes independent claims regarding the subject of the dispute, the defendant and (or) his representative. A third party who does not make independent claims regarding the subject of the dispute acts after the plaintiff or after the defendant, on whose side he is participating in the case. Such rules are established in Part 3 of Article 164 of the Arbitration Procedure Code of the Russian Federation.

After all participants in the judicial debate have spoken, the plaintiff (his representative) has the right to make a statement (Part 5 of Article 164 of the Arbitration Procedure Code of the Russian Federation). A remark is one or two sentences in which the speaking party sums up his speech, makes a final conclusion, etc. As a rule, it makes sense to make a remark if, for some reason, the plaintiff forgot to indicate some important argument, or if one or more of the defendant’s arguments merits a brief objection. But in most cases there is no particular need for replicas.

In this case, the plaintiff must keep in mind that the right of last retort always belongs to the defendant and (or) his representative. This means that you don't have to try to counter every argument the defendant makes. It is more advisable for the plaintiff to focus on his own speech during legal arguments.

Actions after the end of the trial

At the end of the court hearing, you need to act depending on whether the proceedings in the court of first instance are completed or not.

If the proceedings in the court of first instance end, then the arbitration court makes a decision or, in more rare cases, a ruling to terminate the proceedings or to leave the statement of claim without consideration.

In this case, you need to keep in mind that at the stage of announcing the final judicial act, you can also record the progress of the meeting using an audio recording. Therefore, the announcement by the arbitration court of the operative part of the judicial act must be recorded on a sound recording device in order to avoid those rare cases when the announced operative part of the judicial act differs in content from the operative part of the produced judicial act.

In addition, after the announcement of the final judicial act, you must immediately clarify with the judge presiding at the court session or with his assistant (the secretary of the court session):

• when can you get a copy of the protocol and (or) a copy of the audio recording of the court hearing;
• when it is possible to obtain a copy of the final judicial act, and if such a judicial act is subject to immediate execution, then a writ of execution for the forced execution of such a judicial act;
• When can you get acquainted with the materials of the court case?

However, the court hearing does not always end with the issuance of a final judicial act. By various reasons a break may be declared at the court hearing or the trial may be postponed to another calendar date. As a rule, in these cases, the judge names the date and time of the next hearing and asks the parties whether such a date and time suits them or not. This is done to ensure that representatives of the parties do not have the same dates and times of court hearings in different cases. After all, if several trials with the participation of one party are scheduled for one time on one day, then representatives of the parties will not always be able to participate in them at the same time. Therefore, the plaintiff and (or) his representative need to take into account their interests when postponing the court hearing to another date so that the court hearing is postponed to a date when there are either no trials yet, or they exist, but much earlier or later in time. For convenience, it is better to have a diary or register of court cases with you.

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