This work is not intended to be a manual of procedural practice or theory, but rather to provide some practical advice that, I believe, could help lawyers starting out in litigation Law tutoring. That is why these lines may have little meaning or use for lawyers who have been litigating for some time, since they are intended, as I said, for those new colleagues.
The organization of work
Work organization is key. As a trial lawyer, in general, your days will be divided and counted into 15, 10, 5 and 3 business days, depending on whether it is the answer to the claim in an ordinary process, a summary (province of Buenos Aires and some another province), appeal, and revocation appeals, respectively.
When it comes to a single topic it seems easy to organize, but day to day life will be something else. Deadlines that seem far away when notified can (and will) fly by.
My recommendation is that every time you are notified of something, stop what you are doing and write down the expiration date. After writing down the expiration date, I continued with what I was doing. This way it will already be scheduled and you will not run the risk of forgetting it.
Another suggestion is that you print a list of expirations every day. I do it including the next 30 days. This way I can organize myself by seeing what deadlines I have ahead of me.
The obligations of lawyers in general are of means, but the deadlines are of results. I always say that a trial can be lost for any reason, but never because we missed a deadline.
Those involved in the process
Surely in college you studied that the parties to the process are the plaintiff (who sues) and the defendant (who defends himself). You will also have studied the intervention of third parties in its different variants and even the amicusquriae. The analysis of these figures and how each one acts is obviously important, since otherwise you will not be able to know what role each one plays.
But what is also important for you to know is that this litigation, this dispute will be carried out by the lawyers who represent and sponsor the parties. These lawyers are your “colleagues”, and although it may seem unlikely, the truth is that throughout your professional life you will come across them on more than one occasion. Sometimes they will be at odds and other times, without knowing how, on the same side. You must always keep this in mind so as not to let the “heated” defense of your client’s interests earn you an “enemy” where, in reality, there is a “colleague.” By this I do not mean that you should not exercise each and every one of the corresponding defenses. But when you write or are in a hearing, do not forget that they are all lawyers who deserve the professional respect that corresponds in the exercise of the profession, and obviously, as people.
Other participants in the process are the judges, secretaries, deputy secretaries and, in general, all employees of the Judiciary. They also deserve the same professional and personal respect as your colleagues, as they work to reach the best possible sentence or solution. I can assure you that many times it will be more useful for your client if you have a good relationship with the employees at the ticket table than with the judge. And when I say good relationship I don’t mean anything strange. Just saying hello politely and acknowledging that they do their job seriously is enough for them to occasionally tell you that the file is being studied and will be released in two or three days.
The writings
A key to our profession is writing. If the writing is not understood, the claim or defense is not understood and if they do not understand you, your client will most likely lose, even if he is right.
In my opinion, the most important writings of the process are the complaint and the response; the allegations, and the grievances or their response. Obviously there are also challenges to expertise, witnesses or other types of writings that are important, but focusing on these that I have mentioned, you will notice that they all have a particularity: they all tell a story. Your client’s story.
This story is explained in the “facts” chapter. It is key that the facts are clear, concise, that they have a common thread that begins with an introduction, a development and ends with a conclusion.
You always have to keep in mind that for your client and for you it will be “about the issue”, but for the employees and officials of the judiciary it is one more of the thousands they have to resolve. Obviously they all have their importance and deserve to be treated with the same diligence, but let’s not fool ourselves, think if you had to read hundreds of lawsuits and their responses, which one would you like to read or would you read more carefully? Surely they will be those that do not initially seem too long to you, and also, those that are easy for you to read. And if you are over forty you will like that they have easily legible handwriting (if you are under 30 when you read this, it may seem crazy to you, but if you read it again at 45, I have no doubt that you will understand it).
Something that I usually do and that I recommend to see if the writing passes the “filter” of understanding is to give it to another lawyer who does not know the matter to read. If he understands what is written and does not find it tedious, he passed the test. If he did not understand it or got bored reading it, you have to review the text. In theory this system sounds simple to implement, but I can assure you that, in practice, on a day-to-day basis, it will not be so simple, because you will surely be running with deadlines and achieving this will require that you have worked with enough time and good organization.
The defenses and costs of the process
We all want to defend our clients in the best possible way, but in doing so we have to evaluate the possibilities of success of the defenses we attempt, because if we lose it is most likely that this will happen with costs at our expense. Therefore, when advising a defense or even filing a lawsuit, we have to evaluate with the client the consequences that may arise from doing so, being very clear about what our advice is and what we think may happen.
The hearings
Another central point in every trial is the hearings. In general, you will meet with the opening evidentiary hearing (art. 360 of the CPCCN) where you can also take the confessional test. There are also hearings of witnesses, those that the court may call to attempt a conciliation or those to request explanations from the experts and parties.
For audiences it is important to take into account several things, without trying to exhaust their list, I would tell you to keep the following in mind:
1) yes or yes you have to know the file and the reason why you were called to the hearing;
2) you cannot go to a hearing to “see what happens”;
3) prepare in advance;
4) try to think about what the other party’s lawyer and the court official who will intervene will say;
5) always stay calm: he who gets angry loses;
6) be firm in your position. If you hesitate, the other party or the court official will notice;
7) Never, ever, disrespect the other party’s attorney or court official. Not only because, as we said before, it is the behavior that corresponds to any good man who lives in society, but because in both cases, both they and you are doing their job. The other party’s lawyer defends the interests of his client as you defend yours, and the court’s lawyer tries to ensure that justice is done impartially;
8) If witnesses are going to testify, understand what topic they are going to testify about. Try to anticipate the questions you might ask and the questions the other party might ask;
9) is attentive to what is happening in the audience, to the “climate” that is being generated. The most likely thing is that it will be tense, so it is important that you try to “read” what is happening around you, with the audience member, the judge or the secretary (if they are in the hearing) or with the witness who testifies, to whom Surely you will not be able to look at his face because he will be testifying in front of the audience and you will be sitting behind him, but you will be able to hear his voice;
10) Something that you will learn quickly is that if at the hearing the judge, the secretary or the audience member tell you that they agree (or not) with a question that you are trying to ask a witness, if you raise a formal incident and insist, it will happen. the more likely it is that you will lose it with costs; and
11) If there is an incident and you lose with costs, do not forget to appeal them at the moment.
The skills
It is very important that you tell your clients about the possibility of having technical consultants specialized in the expertise that will be offered. This is because, as lawyers, it is very likely that we do not know the sciences that may involve these expertise, and without the help of these specialists it will be very difficult for us to offer points of expertise adequately, or, where appropriate, observe or challenge the answers. of the experts.
Furthermore, technical consultants, when they have experience in carrying out expertise, usually have very good management of the meetings where information is verified, which can be key in the report that the experts finally present.
The allegations
It is the opportunity you have to synthesize in a harmonious and clear way what it was that you managed to prove and what it was that the other party failed to prove.
Don’t waste it on cumbersome writing that doesn’t say anything concrete or useful. A good pleading can help you win if you can show the judge in a simple and concrete way that you proved what you said when suing or answering the lawsuit.
There are as many techniques for making allegations as there are lawyers, but I find it useful to remember what was said in the lawsuit and then credit it with the evidence produced. For example, if your client complained about collection of invoices, you can say that it was proven that the invoices are unpaid with the XXX response of the accounting expert on pages XXX, which was not challenged by the opposing party.
Indicating the pages on which something was stated and where it is proven is very useful so that the judge can use your argument as a kind of “index” that tells him where he has to go to look for that information or evidence. That is why it is very important that you be precise with the indication of the pages and that they are easily located in the pleading. It works for me to write the pages in bold so that they are easy to read (for example: page 535 ).
The resources
In these writings you have to be able to show that what was resolved is incorrect from the point of view of the facts proven in the file or the law that applies. It is no use reiterating what you already said or writing the same thing in another way. What you have to do is analyze the resolution or sentence, break it down and attack it at all the points that cause offense.
When doing this you must be precise, showing where the judge made a mistake, either in the assessment of the facts (for example, in the sentence it is said that the traffic light was red, but the expert evidence and the security cameras added to pages XXX show that it was green) or the law (for example, the judge maintains that law XXX applies, but that law does not apply because the situation analyzed is contemplated in law ZZZ).
If what you are doing is answering the grievances of the other party, what you would have to do is support the judge’s ruling with greater and better arguments, in such a way that you complement or deepen it, and thus the Chamber has a very complete picture of the factual and legal reasons why the sentence must be confirmed.
Teamwork
Try to work as a team. If you have the opportunity to work in a firm with several lawyers, take advantage of them and, at the same time, be generous with your colleagues. If you work alone, it doesn’t matter, you surely know other lawyers, colleagues or faculty friends who you can consult in case of doubts. You will be surprised to see how other lawyers have different points of view on the same topic or have already gone through similar situations. Listen to them, you may not agree, but it doesn’t matter, the point of view or advice will surely be useful to you, even if it is to dismiss it or to confirm that you were on the right path.
In my experience it is incredible how major procedural calamities or doctrinal discussions are resolved – or at least a good consensus is reached on what course of action to take – by chatting informally with other members of the study.
The clients
Clients call the litigator when they have a problem that they cannot resolve in any other way. If you litigate, you will not be on scene when the contract is signed and everyone is happy, but you will be called when the contract is not fulfilled and the joy has ended and turned into anger.
It is important that you always go prepared to meetings with clients, whether in person, by video conference or by telephone. The client expects from lawyers in general, and from litigants in particular, that they receive security and tranquility. They want and need to trust you. At one point “you are his legal doctor.” Therefore, if you go to a meeting without being prepared and the client feels that you are doubtful or that you are generating doubts, they will not remain calm and it is very likely that they will seek advice from another colleague.
During your professional life, on more than one occasion it will happen that a client calls you or requests an emergency meeting that cannot wait. In this type of situation, try to ask questions that allow you to know, even superficially, what topic they are going to talk about. For example, if they tell you that it will be about a debtor who filed for bankruptcy and it has been a while since you have seen the bankruptcy and bankruptcy law, read it before going to the meeting, even if it is in the taxi. You learned the law in college and surely with one reading you will remember the necessary concepts to face the meeting safely. Then, once you know what the topic is about, you can – and surely should – deepen the analysis to be able to define the strategy, but you will have managed to generate the necessary trust and security in your client in that first meeting so that they continue hiring you.
Another important issue is to always be honest with the client. Study the problem well and explain to him what, to the best of your knowledge and understanding, is his situation and what chances of success or defeat you consider he has in his case. With this I do not mean that you have to assert without a doubt that you will win or lose, but I do mean that, after analyzing the matter in depth, and recommending possible courses of action, you explain what the consequences of the different alternatives are. and which one do you consider to be the best for your case?
As a summary
I hope these suggestions help you litigate, it occurred to me to write them because I would have liked to know them from my first trial; However, I learned them like the vast majority of us: over time; some by trial and error – which is usually the most painful method, but also the most effective, because you will never forget that mistake – and others through several more experienced lawyers who, generously, taught me over the years. exercise and I must say that, thank God, many of them still do it today.