News
Similar, But Much Different
August 6, 2021
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<p style="text-align: justify;">I recently had the pleasure of watching, via video link, a civil proceeding in China. Pre-Covid, I tried to visit the Beijing civil court but was turned away with the explanation that only people having official business before the court were allowed in.</p>
<p style="text-align: justify;">The hearing was conducted via a video link. At issue was the ownership of a car. The parties were in agreement; but for bureaucratic purposes, they needed a court order establishing ownership.</p>
<p style="text-align: justify;">Unlike in the United States, the judge and court clerk shared the bench and, while the judge was in charge, the judge and clerk worked more as a team. Sitting behind them was an official citizen observer (a nice touch since the courthouse is not open to the public). Off screen was a transcriptionist and a judicial assistant who dealt with the documents, administrative tasks, etc.</p>
<p style="text-align: justify;">Unlike in the U.S., the witness was not asked to take an “oath,” instead, she was required to state that she would be honest and tell the truth.</p>
<p style="text-align: justify;">The attorney did not “present her case” as we would do. She explained the relief sought, the judge then asked questions, and the lawyer or witness answered as required. When the attorney spoke on behalf of her client, she seemed stifled, deferential and was not forceful in manner or presentation. If this is the norm, a lot of American lawyers would have a serious contempt problem in China!</p>
<p style="text-align: justify;">The judge was both fact finder and arbiter of the law; there was no jury option. The court also advocated the interests of the state when several issues came up.</p>
<p style="text-align: justify;">It appears that the attorney did not know in advance what documentation was needed to make her case, or help the judge reach her decision. This may have been a strategy, wait to see what the judge wanted and then provided it, but it made her presentation appear timid. Interestingly, the lack of documents did not slow things down – when the judge or clerk ask for documentary proof, the attorney or party provided it via screen share or email, and the court then asked that hard copies be delivered by overnight mail. The judge then continued the hearing for two days to allow for delivery of the original documents and to follow up as necessary.</p>
<p style="text-align: justify;">At the end of the hearing, the parties were required to certify the accuracy of the transcript by electronically signing it (which was interesting because the transcript was not offed for reading). Finally, the judge reserved ruling, and the parties await her decision.</p>
<p style="text-align: justify;">While similar in many ways, it the U.S. court system is much different from that in China. Our lawyers are proactive, they are in control of their case; we have juries; our judges are neutral; and our legal system is open for all to observe. Given my druthers, I’ll take our system any day!</p>
<p style="text-align: justify;">Please contact <a href="mailto:cgeorge@wcmlaw.com">Chip George</a> with any questions.</p>