Special Declaration: This article is an original work by Attorney Shao Shiwei. It represents only the personal views of the author and does not constitute legal consultation or legal advice on specific matters. For article reprints, legal consultations, or professional exchanges, please add contact: sswls66.
Although my primary practice area is criminal law, I frequently receive inquiries from friends regarding civil legal issues. In reality, the various disciplines of law are closely interconnected, and many case-handling techniques and modes of thinking are common to both criminal and civil practice. Moreover, I have previously handled numerous civil cases.
I have always believed thatan important quality lawyers should possess is the ability to solve problems and the capacity for rapid learning when confronted with unfamiliar fields. To some extent, this capability should not be confined by whether the problem at hand pertains to civil matters, criminal matters, or non-litigation services.
In daily practice, clients often ask during legal consultations, “If we engage you to represent us in this case, how will you proceed with the work?” While lawyers are thoroughly familiar with their own daily workflows, most clients may be engaging a lawyer for the first time and lack relevant conceptual understanding. Therefore, as lawyers, we can certainly understand such questions, though they are difficult to summarize briefly in just a few words.
Furthermore, clients may ask, “Do you have prior experience representing similar cases to mine?” We can understand this perspective; from a client’s viewpoint, having represented similar cases implies greater experience. However, in reality, even judges cannot be familiar with the specific industry behind every case they adjudicate. The adjudication of litigation cases relies more on deducing the underlying legal principles based on the facts of the case.
Several months ago, a civil case I represented finally reached its final judgment. From the emergence of the dispute to the first-instance and second-instance judgments, the case spanned four years and involved seven court hearings. Handling this case required considerable effort from myself and our team of attorneys.
Therefore, today I will use this case to demonstrate the lawyer’s workflow through litigation visualization, illustrating: How do lawyers prepare for a civil trial when facing an unfamiliar field? (Case information has been anonymized to protect client privacy.)
Author | Attorney Shao Shiwei
01
Litigation Visualization: How to Prepare for a Civil Trial?
Regarding the question clients often ask about what work lawyers perform when representing civil litigation cases, today I will illustrate this using a civil sales contract dispute case handled by our team as an example.
The diagram below outlines the framework for preparing for a civil trial. Before the hearing, lawyers must organize their representation arguments based on the facts and evidence available in the case file.
However, the prerequisite for such preparation is that the lawyer has engaged in multiple rounds of meetings and discussions with our client regarding the full facts of the case and the evidence already provided or potentially providable by the opposing party. To use a vivid analogy, the representation arguments presented at trial are akin to a completed exam paper. Yet, the content of this “exam paper” requires the lawyer to constantly reflect, continuously posing questions to both themselves and the client. The preparatory work for litigation is itself a process of repeatedly formulating and solving problems.
For instance, in this case, our work steps were as follows:
First, we requested the client to provide all evidence materials related to the case to the greatest extent possible, including chat records, contract texts, audio recordings of communications, etc. After collecting and organizing these materials, the lawyer held telephone conferences or face-to-face meetings with the client to analyze and discuss our strengths and weaknesses based on the existing materials, and to determine whether any additional materials needed to be supplemented.
Regarding the multiple rounds of evidence provided by both parties, after verifying with the client, we submitted our representation opinions and cross-examination opinions.
Based on the overall circumstances of the case, we organized a timeline of events.
We also created mind maps listing our strengths and weaknesses, the potential strengths and weaknesses of the opposing party, potential questions from our side, the opposing side, and the judge, as well as arguments regarding the focal points of dispute in this case, among other items.
(Excerpt from the Case Mind Map)
We provided explanatory “popular science” presentations to the judge regarding the technical issues in this case.
Finally, combining the evidence and argumentation presented by both parties during previous hearings, we formulated our final legal opinions and submitted a representation brief of nearly ten thousand words to the court.
(Excerpt from Representation Opinions)
Ultimately, this case concluded with our client prevailing in both the first and second instances. The judge not only adopted our viewpoints but also showed an overlap of over 80% between the reasoning section of the judgment and our representation opinions. This demonstrated the judge’s significant recognition of the lawyer’s work.
(Excerpt from the Second-Instance Judgment)
02
Case Background Introduction—A Story About Sewing Machines and Robots
The background of the aforementioned case is as follows:
Mr. A, the head of Company A, desired a robot capable of automated, bulk sewing in a factory setting. However, market research revealed that there were no manufacturers with similar production experience currently available on the market (that could meet his specifications).
Although Company W specialized in the production and sale of robotic equipment, its main products were industrial and automated devices. It had no prior production experience with the automated sewing robot proposed by Mr. A.
Following negotiations, Company A and Company W signed a procurement contract for the robot-equipped sewing machine project.
Subsequently, Mr. A discovered that the robot produced by Company W could not smoothly match the sewing machine he had purchased; specifically, the robot failed to coordinate properly with the sewing machine to perform sewing tasks. Consequently, Company A proposed terminating the contract and filed a lawsuit with the court, demanding that Company W refund the equipment costs and pay liquidated damages amounting to nearly one million yuan.
Upon receiving the court summons, Company W engaged Attorney Shao to represent them in this case.
03
Difficulties in the Case
Company A argued that, as an outsider to the industry, it was only responsible for conveying its concepts to Company W, and that Company W should have completed all aspects of the project. Therefore, all issues should be attributed to Company W.
Company W argued that it lacked prior R&D experience with similar projects, a fact known to Company A. Therefore, the equipment in question should be considered a prototype. Additionally, to save costs, the sewing machine was provided by Company A. Thus, the coordination between the sewing machine and the robot was Company A’s responsibility.
At first glance, both sides seemed to have valid arguments.However, the greatest difficulty in this case lay inthe focal point of the dispute: What was the cause of the failure of the sewing machine and the robot to coordinate smoothly for sewing? And, was this cause the responsibility of Company A or Company W?No one truly understood。
Regarding the technical issues central to the dispute, Company A was an industry outsider, while Company W was producing such equipment for the first time, making it an experimental product. Therefore,neither party could clearly explain the problematic aspects of the case.。
Furthermore, there was no equipment on the market that exactly matched Company A’s concept and was produced in bulk. (Interestingly, after taking on the representation, we discovered through inquiry that immediately after Company W completed the manufacturing of the equipment, Company A swiftly applied for a patent—a fact of which Company W had remained unaware.) Consequently, wecould not find a suitable third partyto consult for professional technical opinions.
As for the judge, under the pressure of needing to conclude hundreds of cases annually, there was neither the time nor the energy to study the technical issues of this case. Therefore, the explanation of the focal points of dispute fell solely upon the lawyers for both parties.
Why is the title of this article “The Art of Litigation”?The answer lies here. Judges do not tend to support one side based on a naive sense of justice.Lawful rights require active assertion and striving by the parties involved to have any possibility of being supported.
Litigation itself is an art. Facts are important, but the interpretation and reasoning of those facts are even more critical.Especially in this case, where the technical issues related to the focal point of dispute were still in the experimental and conceptual stages, and no authoritative conclusion could be reached on these technical issues, the reasoning regarding the facts played a key role in asserting viewpoints favorable to our client that could gain court support based on the existing evidence.
04
Trial Preparation: A Significant Challenge
The first instance of this case involved six court hearings and six rounds of evidence exchange. After we requested an on-site inspection of the equipment, the plaintiff, defendant, and judge jointly visited Company A (the plaintiff) to inspect the robot equipment located there.
During the year-long first-instance proceedings, in addition to preparing for hearings, we held multiple rounds of meetings with Company W staff to verify the facts of the case. However, much of the time was actually spent by the legal team internally studying knowledge related to robots and automated equipment, and contemplating and arguing how to explain the technical principles to the judge from a perspective favorable to our client, as well as why, although the equipment was manufactured by our client, the liability rested with the opposing party.
Objectively speaking, the plaintiff and their lawyer may have been overly confident, displaying an attitude of inevitable victory in each hearing and failing to give due weight to the viewpoints we articulated and our cross-examination opinions in each round. Furthermore, as the judge in this case could not comprehend the technical issues, he never posed questions to either party regarding the focal points of dispute during any of the hearings. Instead, he routinely inquired only about identity information, the submission of new evidence, and any supplementary opinions.
Therefore, although I have handled hundreds of cases of various types and sizes over my seven years of practice, this case presented a significant challenge to me: first, the need to self-study and rapidly understand the unfamiliar field of mechanical knowledge; and second, the need to independently research and clarify technical principles that even industry insiders, such as Company W’s staff, could not explain, and then clearly explain these to the judge in an effort to gain his support.
05
Concluding Remarks
Unlike the adversarial litigation model seen in Anglo-American countries on television, where factual truth is discovered through intense debate between prosecution and defense, courtroom proceedings in China primarily rely on legal documents and evidence to prove the completeness and accuracy of facts, rather than depending on oral argumentation. Therefore, lawyers are not only legal professionals but also writers. Preparing for a complex trial inevitably involves substantial written output.
As the saying goes, “Ten minutes on stage requires ten years of practice off stage.” This applies equally to lawyers preparing for each litigation case and each trial. Many clients may believe that a lawyer’s work consists merely of appearing in court, but in reality, the “off-stage” work (pre-trial preparation) is the most crucial aspect of a case. The meticulousness of behind-the-scenes preparation is also a standard by which to judge whether a lawyer is conscientious and responsible.
Even in unfamiliar fields, we can conduct in-depth research into industry knowledge, clearly organize the facts of the case, and through detailed legal analysis, strive diligently to actively safeguard the legitimate rights and interests of our clients.
