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Ruth A. van der Pol

Ruth A. van der Pol

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[1] 6 сентября 2012 г. в Санкт-Петербургском институте права имени Принца П.Г.Ольденбургского в рамках программы «Окно в Нидерланды» прошла публичная лекция судьи Рута ван дер Пола (Нидерланды) «Что ожидает хороший судья от хороших юристов?» (“The good civil litigator”) с последующей дискуссией и презентацией Студенческого конкурса судебных юристов “AMICUS CURIAE”.

Контакт оргкомитета конкурса: Аркадий Гутников, ректор Санкт-Петербургского института права имени Принца П.Г.Ольденбургского, (программа «Право и общество»). Здесь публикуются тезисы лекции на английском языке. Полная видеозапись лекции доступна на

1. Arkady has asked me to share with you today some ideas of what is to be expected of a professional litigator in civil/commercial law cases. I gladly accepted in the context of the (third) Amicus Curiae Moot Court competition we hope to organize for the year 2013. Contrary to my 2008 lecture, todays views from a Dutch civil law judge will be mainly practical. I will, first of all, speak a few words about the role of Dutch lawyers in our democratic, rule of law based society in general. Secondly I will pay attention to the importance of the facts in a civil law suit. From there on i will focus on the lawyers task regarding the composition of court documents. An example from every day court practise will hopefully clarify the point i make. Finally i will share with you a few thoughts about the significance of the advocates plea in which context i will give some practical do’s and dont’s.

The lawyers position and the rule of law: ‘officer of the court’ or not?

2. The rechtsstaat or the ‘rule of law’ is meant to protect our freedom and human dignity, by the fact that everyone is bound by the law. Living together presupposes infringements on that freedom by others and by the authorities. The rule of law makes sure that only infringements take place that are properly legitimized, and that no ‘unbalance’ exists between the power of the one above the other, between the state and its citizens. Living together requires from all of us tolerance, moderateness. Listening to others, taking into account the interests and values of others, weighing these interests are important notions in this respect. I think that the value of these notions is still of great importance.

To cut corners: it is against this background that in the Dutch Bar a discussion has developed on the question whether lawyers are ‘officers of the court’ for whom a core value of their profession is ‘public responsibility’ that stretches beyond the interests of the lawyer/client relation. It is generally accepted that in the Netherlands the lawyer is not such an ‘officer’. I mention in this respect that in the international context no choice in ‘favour’ or ‘against’ the role of lawyers as ‘ officers of the court’ has been made either. In the Basic Principles on the role of the lawyer, adopted by the UN-congress in 1990, the lawyer is called ‘an essential agent of the administration of justice’.

However, it goes without saying that a rule of law based society can only exist thanks to the existence of an independent judiciary and thanks to an independent Bar. Each of them responsible for himself, but at the same time responsible for the quality of the administration of justice in. In this context i would like to quote the former general Dean of the DBA, Willem Bekkers;

The Bar has a civilizing effect to the proper administration of justice. Advocates facilitate others, do not enlarge conflicts and take into account third-party interests as far as this is reasonable. They stimulate reasonableness of all persons concerned, they encourage and support.’

Although this idea of a ‘Troika responsibility’ is not shared by all members of the Bar, (and as a result no equivalent core-value is included in the Advocatenwet) it has made an important contribution to the ongoing exchange of thought about the core-values of the legal profession.

Principle of Dutch civil procedure law:

Although Dutch civil procedure law contains the principle of the autonomy of the parties, this autonomy is limited. The law explicitly obliges the (lawyers of both) parties to bring forward the relevant facts of the case, complete and according to the truth. In practise this means that the parties may not withhold facts, and may not bring forward facts that are not according to the real state of affairs. I will speak about the importance of the facts shortly.

This underlines my point that in civil law procedures lawyers have a responsibility beyond the interests of the lawyer/client relation.

The importance of the facts in a civil law suit:

In this respect i should quote from Charles Dickens:

now what i want is facts. In this life we want nothing but facts, sir, nothing but facts’ (Charles Dickens in: Hard Times).

And civil law judges would say after him:

‘Da mihi facta dabo tibi ius’ : give me the facts, i’ll give you the law

3. Now what is it that i am aiming at? In short this:

Collecting and establishing the facts is the starting-point of judicial decisionmaking. It is clear that the application of the law can only take place when the judge has established the relevant facts. Therefore the task of any judge starts with getting a clear view of the facts, or the ‘story’ of the parties, because they form the ‘basis’ of the judicial decision.

Let me give a simple example:

Claimant (A) demands in his claim performance of defendants (B) obligation to pay the purchase price for sold and delivered stones: The writ of claim sums up the following ‘bare’ facts:

- A and B concluded an purchase agreement for the sale of stones;

- A delivered the agreed amount of stones to B;

- B has not paid the purchase prices.

These facts are by themselves relevant and necessary, but they do not suffice. The judge needs to know what this case in reality is about? In short: why did B not pay the purchase price: is it because he has problems paying his debts, does he have complaints about the quality of the stones delivered or is it for some other reason?

It is the task of the parties’ lawyers to bring up these facts in their court documents, to explain to the judge what the story is all about, supported with all sorts of evidence, because the ‘facts’ are the lawyers territory. It is the judges task to establish facts that have taken place in reality. Back to the given example: if B claims that the delivered stones are of inferior quality, the judge wants to find out whether this is true, or just an escape to avoid payment!

Why is it so important that a judge aims as much a possible at establishing facts according to the real state of affairs?

The reason is this: a fair judicial decision must as much as possible have its foundation in correctly established facts. ‘Truth’ and ‘justice’ go hand in hand. I would say that it is as unjust to apply the ‘right’ rule to the wrong facts, as to apply the ‘wrong’ rule to the ‘right’ facts. It is for this reason that it is a judges task to strive to collect the ‘right’ facts for a proper assessment of the case. Administration of justice is not fiction.

For this reason lawyers should not underestimate the importance of the facts. More, they should pay extreme attention to the facts: the backgrounds of a an agreement, who exactly are the contracting parties, what is their business about, what went wrong, for what reason etc? Usually a judge is ignorant of a these backgrounds – e.g. what is your clients enterprise all about? – so why not inform him properly to enlarge his understanding of the case and its backgrounds?

The interaction between the ‘facts’ and the ‘rules’

4. Now let me focus on the lawyers task regarding the composition of the ‘statement of claim’ and the ‘statement of defence’ .

First of all: a good lawyer realizes ‘how judges think’. How do civil judges think? In short their analyses is based on the following structure:

- what is the exact claim? (what does the claimant want from the court?)

- what is the legal basis (the ‘rules’) for his claim?

- what are the underlying, relevant, facts brought forward: can they justify the reward of the claim on this legal basis?

- If this is not the case: the claim must be rejected

- if this is the case, the judge askes himself: are these facts properly challenged by the defence? Two possibilities:

- (a) if they are not properly challenged: the judge establishes these facts as undisputed.

- (b) if these facts are indeed properly challenged: they will need evidence.

- has the defendant supported these facts with sufficient evidence? If not, does he propose to give additional evidence, e.g. by hearing witnesses?

Second: let us have a look how this abstract works out for the lawyer.

The case: A, who is an entrepreneur, sells to B, a natural person, 100.000 stones for his garden for the price of 10.000 Rrbls. A delivers the stones, but B. refuses to pay the purchase price. A. starts a lawsuit against B. He wants the court to order B to pay the 10.000 Rubls plus interest.

statement of claim:

· must contain a very precise formulation of what exactly you want from the court. Q: Why is this so important?

· try to realize: what is the legal basis for your claim? (here: (non)performance of B’s contractual obligation to pay the purchase price. art. 307/309 CCRF)

· then: bring forward all the relevant facts that support the claim on the legal basis; what are these facts?

· if possible: challenge B’s argument that the stones delivered are of an inferior quality.

statement of defence

Let us assume that B acknowledges his contractual obligation, the fact that the price has remained unpaid, but that he argues: the stones are of an inferior quality.

· how can you substantiate this argument?

· try to realize: what is my goal? Is it that my client, B, does not have to pay, so that A’s claim must be rejected?

· How would you then legally qualify B’s argument that the delivered stones are of inferior quality? (breach of of A’s contractual obligation to deliver stones of a higher quality)

· Does this argument by itself release B from his obligation to pay the purchase price? Why not?

· What possible remedies do you see to release your client, B, of his obligation to pay?

- termination of the contract by the court? (art. 450 CCRF)

- amendment of the contract by the court (to have the purchase price reduced

- compensation of damages (art. 393 CCRF)

- order performance of A’s obligation to deliver stones of average quality/combined with a right of suspension of B’s obligation to pay until the moment A has performed properly?

Advocates plea

5. Last but not least: let me give a few do’s and dont's of the advocates plea.

My definition of an advocates plea is a court hearing in which as a rule the parties’ lawyers take turns in explaining their clients’ view in front of a judge. In this context i should mention that according to article 6 ECHR the parties have a right to an oral hearing in front of a court of law.

first of all this: it is important that you realize and try to give an answer to the following question: what is the reason to have an advocates plea in this particular case? Is it because i want to inform the judge about recent developments concerning this case that can be of importance for a judicial decision? Are there any (new) facts or facts that have so far remained undisclosed, or are there legal developments such as new jurisprudence by a higher court, concerning the question at stake?

It is my personal experience that the oral court hearing is most of all beneficial to a clarification of the facts of the case. As i said earlier: the facts are the lawyers domain; they give the judge much room for asking questions, and they have as advantage that the parties’ lawyers can react immediately. Apart from that, a judge is in general quite interested in seeing and talking to the parties’ in person. It usually adds a different ‘flavour’ than merely judging on the basis of the ‘paper file’ .

second: realize that as a rule the judge has carefully studied the case file prior to the advocates plea, and has prepared questions. Therefore: do not repeateverything that has already been written down in the court documents. It is one of the greatest annoyances of judges to be forced to listen to arguments that are already in the court documents. You completely lose the courts’ attention, and that is the least thing you want!

However: if the judges’ behaviour gives you the impression that he does not listen to you then stop and ask politely and with persistence for his attention. If his questions give you the impression that he has not understood the facts, or the essence of the case, correctly, try to explain him again, politely and with persistence.

As i have said earlier: a judge should have an open mind, and the will to try to understand the real ‘story’ of both parties, in order to decide the true conflict on the ‘right’ facts, not some fictitious case.

Third: a good lawyers limits himself to new facts or undisclosed facts, or new legal developments of importance. If you manage to do do that, it is a sign of professionalism, it is effective and it is convincing.

Fourth: do not teach a judge on legal issues. This is patronizing and annoying. Besides, the judge usually knows the law.

Fifth: avoid the use of exaggerated language and ‘big words’. Bringing forward your arguments in all modesty, is so much more effective than to carry your point in a loud voice. The strenght of a good lawyer, rests in the way in which he is able to present the facts in a quiet and convincing manner, and places them in a for his client favourable light.

sixth: fluency helps, but more important is a modest, quiet presentation, good preparation, thorough knowledge of the case file, relevant legal literature and jurisprudence of higher courts.

seventh: be yourself. That is so much more convincing that trying to imitate someone else. Develop your own style and pay attention in that respect to your voice,(clear and quiet)attitude (don’t stand there like a private in the army) and eye contact. Don’t stare, but keep eye contact with the judge. By doing so, you appear self confident and convincing. That is important particularly when you find yourself in the situation in which you have to defend a point of view that you do not believe to be correct personally. It is of great importance that you appear to believe in the case you are defending. In short:

The better you prepare, the more you can keep eye contact and the more convincing your attitude will be.

Eight: the best method to keep your nerves in control is to prepare a good note. Doing so, forces you to prepare your speech properly. If you are convinced of the fact that you have prepared a good speech with convincing arguments and a clear phrasing, not much can go wrong. That certainty gives you self confidence. If you prepare a note, try not to be too attached to the written text.

nineth: Preferably, try to learn the text of your written note by heart. It is so boring to have to listen to a lawyer who literally reads out loud his written text!

Speak quiet and use clear language. Avoid monotony in your voice. Do not rush, do not be afraid to introduce a short break (if you do that, it helps to keep ‘tension’ in the things you say).

Tenth: last but not least: unexpected events may happen. The other parties’ lawyer suddenly brings up new evidence, new facts are presented by the other party, the judge askes nasty questions or your client gives the ‘wrong’ answers etc etc. Stay – as the English expression goes – as cool as a cucumber. Think, don’t panic. If necessary, do not be afraid to ask the judge for a short break to be able to discuss these new facts or pieces of evidence with your client, or simply to assess the new situation for a moment.

Apart from this: any good lawyer knows that in the real life of a civil lawsuit there is always another side of the medal. He will be prepared for the ‘unexpected’ which enables him to react in a way that is most favourable for his client.

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