Indeed, pretrial procedure is one of the most important steps in American civil litigation. Nowadays, pretrial procedure is no longer a prelude to trial in the United States. Instead, it is set as a way to close the case without trial. According to the statistics of the U.S. Court Administration Office, 1999, less than 3% of the cases prosecuted by the federal court system entered the trial procedure, and the rest were settled in the pre-trial stage. In China, it is almost 90% every year.
The purpose of establishing pretrial procedure is simple: to clarify irrelevant matters, to let the parties get information, and to determine whether there is a dispute suitable for trial, all of which lead to efficient trial or informed settlement.
Pre-trial practice in the United States includes several core mechanisms such as pre-trial meeting, motion, discovery and summary judgment.
(1) Pre-trial meeting
The initial pre-trial meeting was set as a meeting for judges and lawyers to prepare for the trial, and later it was expanded to include judicial case management and reconciliation discussion. The idea of determining the pre-trial meeting is that if there is proper pre-trial procedure, only the factual focus of the real dispute will be submitted to the factual judge for trial. Moreover, early judicial intervention can help all participants in the procedure to understand the dispute as clearly as possible, pay attention to its core content, quickly explore the information they need to know, and promote consultation and handling or matters.
The first pre-trial meeting is also called the scheduling meeting, that is, the judge presides over the two parties to reach a timetable for submitting motions, amending pleadings, merging other parties, completing the submission and display of evidence, and determining the date of trial.
Another important issue to be discussed at the pre-trial meeting is of course reconciliation. Reconciliation is usually presided over by the presiding judge, but to what extent should the presiding judge promote case reconciliation? Should the judge share her views on the case with both parties? Does it matter whether the judge contacts the client alone or talks to both parties at the same time? If the judge plays the role of reconciliation, will the parties feel uncomfortable if the case is subsequently tried in front of the judge? And so on have been plaguing the American judicial system.
Recent research shows that although federal judges encourage reconciliation, most judges simply put forward some reasons suitable for reconciliation. Some survey data also show that the judges with the highest settlement rate are often those who simply set strict trial dates to quickly promote the trial of cases, rather than those who actively participate in settlement negotiations or other forms of case management.
When the trial date approaches, if the case has not been settled, the final pre-trial meeting will be held. At the meeting, the two sides will formulate a trial plan, including a plan to promote the admissibility of evidence. The court will order the lawyer or client to make a list of all the evidence expected to be presented at the trial, including witnesses and experts who will testify in court.
(2) Exercise
A motion is an application made by the parties to request the court to issue an order. The scope of the motion can range from a simple request for an extension of time to a complicated request for a sanction order or temporary emergency relief from the court. There are also disposal motions, that is, motions requesting the court to decide the case without trial, including motions to dismiss the case before the defense, motions to make a judgment on the plea, motions to make a summary judgment, and so on.
In the United States, the court usually does not examine the sufficiency of the complaint by itself, and it is the defendant's responsibility to object to any defects in the plaintiff's complaint. Therefore, unless there is a lack of jurisdiction over the subject matter, those indictments with preliminary defects cannot be revoked if the other party raises objections. The defendant can reply to the plaintiff's complaint in two ways. The first is to submit a defense. The second is to propose a pre-litigation motion that advocates a specific defense. These defenses usually claim that the complaint was submitted to the wrong court, the necessary parties did not merge, or the complaint lacked legal value. These defenses can be put forward in the defendant's defense or used as the basis for the defendant's motion before the defense, so that the plaintiff's complaint can be revoked.
If the defendant fails to respond to the complaint in any way within the statutory time limit, he will be sentenced by the court for not responding to the complaint. The judgment of not responding to the lawsuit is the final judgment on the entity of the case, and can only be revoked if the defendant proves that there is an excusable fault or obtains the judgment through fraud, false statement or other improper behavior.
After the submission and conclusion of the defense, either party has another opportunity to request the court to make a judgment on the defense without trial, which is called a motion to make a judgment on the defense. Therefore, if the defendant fails to fully answer the defense to deny the claims in the defense, the plaintiff can file a motion to judge the defense and win the case without trial.
Similarly, if the plaintiff's complaint is flawed, or the defendant makes a positive defense, and the plaintiff does not reply, the defendant may file a motion for judgment on the pleading and win the case.
In short, the court will look at the indictment and the defense to determine whether the indictment is sufficient and whether the facts stated in the defense constitute an absolute obstacle to the plaintiff's request on the surface. If these initial objections cannot be established, the case will enter the next stage of litigation: evidence discovery.
(3) Discovery of evidence
Discovery of evidence is a procedure for litigants to display and exchange information related to disputes. It can eliminate the evidence surprise in the trial. It is convenient for litigants to evaluate their strengths and weaknesses in the case in advance through the pre-trial evidence display, which often makes the trial unnecessary because the parties choose to settle.
Formal evidence will be presented in the following ways: written inquiry, oral record of testimony, request for approval, request for identification and physical and mental examination.
Interrogation is a written letter that the parties send more than 25 questions to each other on the specific matters of the case, and the interrogated party must answer truthfully.
Generally speaking, written testimony is conducted in the lawyer's office, and the lawyer orally questions the witnesses and parties, and the court clerk records it (the average written testimony fee is $4 per page). Although written testimony itself will not be accepted in the trial (according to American evidence rules, witnesses usually have to testify in person in the trial), it can be used to criticize those witnesses who later change their testimony in the trial. In addition, written testimony provided to the other party is usually admissible in the trial.
In some cases, one party may also request a mental and physical examination of one party, but the court will not easily agree to this request for the sake of protecting physical integrity.
Finally, one party will ask the other party to admit something. If you don't admit the indisputable facts, the party will be punished.
Because the formal request for discovery of evidence has a negative impact on the expenditure of time and expenses, and it will also disclose the relevant information of the requester's own case to the other party, before serving the formal request for discovery of evidence, lawyers should ask their clients whether they can tolerate the delay and expenses caused by this.
In order to limit the abuse of evidence discovery procedure, the federal court has formulated the mandatory first disclosure rule, which stipulates that the parties are obliged to disclose some basic information without waiting for a formal request for evidence discovery. These basic information are limited to the information that the parties "will use to support their request or defense", including information necessary for preparing for the trial and making an informed settlement decision, such as information about potential witnesses, written evidence, damages and insurance.
At the same time, evidence discovery needs a large group of lawyers to be effective. At present, there are about 1 lawyers in the United States, that is, there are 1 lawyers among 265 people. In China, the total number of lawyers is less than 1, and there are only 1 lawyers for every 13333 people. Therefore, the formal evidence discovery procedure will not become a civil case in China.
(4) summary judgment
At any time in the process of discovery of evidence, any party can also make a motion for summary judgment based on the superior evidence, so that the court can make a judgment on all or part of the case without entering a comprehensive trial. The policy consideration of determining summary judgment is that ending the lawsuit for creditor's rights without substantive factual disputes can save taxpayers and litigants time and money.
When making a decision on the motion of summary judgment, the court must look at and analyze the evidence from the angle that is most conducive to not filing a motion. Theoretically, if a case is handed over to a jury, the court should not weigh the evidence and decide which side may win the case. The basis is that summary judgment cannot replace the trial of disputed facts, but because there is no factual dispute that needs to be solved by the fact finder, the case is allowed to be solved without trial.
The advantage of summary judgment is that it will not only eliminate meaningless litigation, but also encourage more reconciliation. Its purpose is to ensure that every case is decided fairly, quickly and economically.
Today, when deciding whether there is a trial dispute, the court must evaluate the evidence according to the burden of proof in the trial and who bears the burden of proof. This means that in order to defeat the defendant's motion for summary judgment, the plaintiff must prove to the court that she has enough evidence to fulfill her burden of proof. That is to say, according to the standard of "evidence advantage", the plaintiff must prove that she has enough evidence to support every element of her request. Therefore, a reasonable jury can decide in her favor, so the case should be tried. The defendant generally bears less responsibility, because the defendant usually does not bear the burden of proof for the litigation request. Even as a party to the motion, the defendant only pointed out that the plaintiff did not provide evidence to make any basic elements of the burden of proof established in the trial, thus winning a summary judgment.
1996, 42% of the civil cases in the District Court of the District of Columbia were dismissed, 22% were ended by summary judgment, 19% were settled before trial, 3% were ended by trial, and 7% were transferred to other courts. These statistics show that summary judgment is a more commonly used way to deal with the entity of a case, and its utilization rate is higher than that of other courts.
At present, China generally implements the "debating" trial mode, advocates "one-step appearance in court" and requires all cases to enter the trial procedure directly after completing the filing procedure, which determines that the pretrial procedure in China is essentially the filing procedure.
However, according to the Civil Procedure Law, there is no independent civil filing procedure in China, and the filing review and pre-trial preparation covered by the filing procedure are included in the trial procedure. In practice, the filing review is completed by the filing court, while the pre-trial preparation is completed by the filing court and the trial court respectively. For example, the trial court is responsible for investigation and evidence collection, necessary merger of the parties, sending a notice of responding to the lawsuit to the defendant and serving a copy of the complaint, property preservation, first execution, etc. The essence of this pretrial procedure is that the trial court is responsible for the establishment.
At the same time, China advocates authoritarianism. From pre-trial to post-trial, all activities from procedure to entity are carried out under the guidance of judges, and the parties only passively participate. After the reform, the "debating" trial mode absorbed partisan disputes, emphasizing the burden of proof of the parties and the position of the judge as an intermediate referee. However, the one-sided pursuit of "one-step arrival in court" and the neglect of pre-trial procedures led to the failure of both parties to obtain information from each other before the trial. It is impossible to collect and submit all the evidence in time and completely, which leads to frequent evidence raids and repeated court trials, which invisibly increases the litigation cost and delays the realization of justice. Due to the lack of proper pre-trial procedures, all disputes, whether they are valuable or not, are brought to trial, and all evidence, whether it is related to the case or not, is submitted during the trial, which leads to complicated and protracted court trials, low efficiency and lack of appreciation.
Therefore, according to the current trial practice in China, drawing lessons from the advanced pretrial procedure in the United States and combining with the upcoming reform of the judge system, it is necessary to improve the pretrial procedure in China, that is, the filing procedure.
First of all, establish a filing procedure with independent disposal right corresponding to the trial procedure and execution procedure.
Due to the need of justice and efficiency, in recent years, China has vigorously advocated the separation of legislation, trial and execution, and put forward the slogan of "filing a case, trial and execution". So, how to establish a "case"? It is far from enough to do some work such as filing a case for review and serving documents in accordance with the provisions of the Civil Procedure Law. In recent years, some courts have expanded the functions of the filing court from four to eight, namely, adding four functions: pre-trial mediation, pre-trial evidence exchange, trial process management and clerk management. This is obviously a major breakthrough in the original filing procedure, but if the filing procedure is to be set as a gateway to clear the obstacles for the trial and a way to close the case without trial,
As mentioned above, the pre-trial meeting has been expanded to include judicial case management and reconciliation discussion. In China, the pre-trial meeting should include the setting of timetable, exchange of evidence, mediation and consultation under the call of the filing judge. At the same time, the parties should be given the right to reject the case without trial or demand a summary judgment on the grounds of unqualified plea, failure to respond to the lawsuit, inability to provide evidence or superior evidence.
Two, there are trial judges and executive judges.
With the separation of legislation, trial and execution and the reconstruction of filing procedure, it is inevitable to set up a filing judge. The proposal of establishing three series of judges, namely, filing judge, trial judge and execution judge, is not in contradiction with the establishment of elite judge and judge assistant system proposed by the Supreme Court at present, because filing judge, trial judge and execution judge are all included in the list of judges, and each series of judges can set up judge assistants.
The filing judge should not only be responsible for filing a case and managing the trial process, but also organize the parties to exchange and mediate evidence before the trial. At the same time, he has the right to make a summary judgment on the defective complaint, non-responding behavior and superior evidence according to the application of the parties before the trial. This can not only simplify the procedure and shorten the litigation cycle, but also avoid the prejudice and preconceived ideas of the trial judge because of his premature contact with the parties and cases. At the same time, because all matters unrelated to litigation have been clarified in the filing procedure, the parties concerned only pay attention to the core content because they have a full understanding of the case before the trial, and the trial procedure is concise and clear.