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Having an ace up your sleeve is better at cards than in court

Having an ace up your sleeve is better at cards than in court

12.07.2012 10:38
Autor: Jan Najman, KSB

Procedural tactics play a major role in commercial litigation. One must thoroughly consider what arguments and evidence to present and when to do so. One party may wish to use certain evidence to surprise the other, while some evidence may be a double-edged sword and thus be withheld until it is clear that presenting it is in one’s best interests.

However, parties to a dispute cannot employ such tactics forever as the Civil Procedure Code states that facts must be stated (subject to certain exemptions) and evidence must be presented during the first stage of the proceedings only. The court will not accept materials delivered subsequently. This means that the parties to a dispute cannot withhold important facts during appellate proceedings or even during the later stages of first instance proceedings.

Less is not more

Lawyers refer to this as the principle of concentration, which is still relatively new and has yet to become routine in judicial proceedings. As such, caution should be exercised. Facts and evidence should be presented at the beginning of the proceedings instead of as a response to arguments made by the other party. As the court does not have to accept evidence which is submitted later, argumentation that could otherwise help a party to win the dispute could be rendered useless.
For example, a claimant demands payment from another party (the defendant) based on a contract which they entered into. The defendant believes the contract is invalid and that the court should dismiss the claim. However, in an attempt to take the claimant by surprise, the defendant withholds certain evidence until the very end of the first instance proceedings. By then, however, it is too late and the defendant will be sorely out of luck.

Lastly, it is also important to remember that courts will only weigh the evidence that is presented by the parties to the dispute. Subject to certain exceptions, the court does not compile any evidence itself. Even this has a kind of logic: a business dispute usually results from a commercial relationship which has developed over some time. The businesses have been involved in the dispute from the very beginning and are aware of all relevant facts, such as the contents of any negotiations, correspondence, telephone calls, etc. The court possesses no such knowledge. As such, the parties themselves are expected to inform the court in a due and timely manner about matters which they consider relevant and to present evidence in support of their arguments.

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