The two stories are very similar. In terms of content, they are all claims. The first one involves the leukemia patient claiming compensation from the insurance company, and the second one involves the victim of a medical malpractice claiming compensation from the hospital and the responsible doctor. From a procedural point of view, both parties have negotiated and settled with the court. Presided over mediation and jury trials; from the perspective of the film, they are all laid out from the profession of lawyers. The main line is the lawsuit, and the deputy line is the lawyer himself.
As a lawyer, the feeling of watching these two films is of course different from others. To be honest, I am very emotional:
1. I used to think that, as foreign friends told me, insurance companies in the United States and other countries are very civilized and humane, and claim settlements are quick and there are few refusals. On the other hand, Chinese insurance companies are not only stingy, but also often refuse to make claims when making claims, making insurance a trap. I have always thought that there are no cases of personal injury compensation disputes in road traffic accidents in the United States, but in China, countless judicial resources have been wasted with their huge numbers.
After watching the two movies, I realized: Obviously, in the 1980s, many young lawyers in the United States also had to survive on traffic accident cases, and for this reason they went to the hospital to directly look for the injured. At that time, American insurance companies were also extremely treacherous and vicious, and even rejected all claims first, causing many claimants to retreat. It can be seen that both the settlement of traffic accidents and insurance accidents have experienced a stage of passive settlement and litigation settlement in the United States. It is through this stage that the current active and efficient settlement system has been developed. Therefore, rights are born, but they must be obtained through struggle.
Presumably, if China develops fast and well enough, within ten or more than ten years, a large number of traffic accident lawsuits should also be able to withdraw from court and be directly settled by insurance companies.
2. The rule of law in the United States is better than that in China. The key lies in the design of the system.
The first element of the rule of law is the law itself (complete, reasonable or not). From my current understanding, American law is indeed developed. A large number of cases have accumulated detailed facts, evidence, procedures, etc. in various cases since the trial history. In terms of legal technology, the settlement transaction system strives to strike a balance between efficiency and fairness, while the jury system combines the knowledge of judicial elites with ordinary people to achieve a certain degree of democratic trial. Each of these items is far less than the Chinese trial.
For example, in this movie, after nurse KC, the most important witness, appeared in court to testify, the defendant cited the case and pointed out that the copy of the document held by him has the advantage of modification as a photocopy than the original, and therefore cannot be used as evidence. The witness submitted before the court There is no such nurse on the list, and she can only serve as a surprise witness, and her testimony can only be used as direct evidence against the other party. As a result, the judge declared it invalid and the testimony should be deleted from the record.
In China, witnesses who appear in court to testify should be submitted 10 days before the expiration of the proof period (the summary procedure is before the expiration of the proof period). Although this provision has been criticized by many judges, like other content in the Supreme People’s Court, "Some Provisions on Evidence in Civil Litigation" Even in many courts, it is not used explicitly or implicitly, but in most courts, it is applicable. Therefore, if in China, the most important witness in this film is not qualified to testify in court at all.
Regarding this plot, it also reflects the restriction of the jury system on the power of judges. In contrast, in China, the judge has the power to decide the judgment. Although he is influenced by the leaders of the court and the administrative agency, we may as well regard all the influencers as a group. The influence of these groups on the judgment is not only non-transparent. It is non-immediate, profit-oriented, and it is non-civilian and minority people. Therefore, although the jury only appears in a few cases in the United States, as the implementer of ultimate fairness, it not only provides remedies for the parties, but also has great influence. Well, after writing this, I can't help thinking of the petition system, which is undoubtedly a satire and ridicule of justice...
3. In the United States, it is not easy for lawyers.
It is difficult for a lawyer to gain the trust of the client and accept the case. Speaking of the vast population of people, who knows your character and legal level, it is usually your relatives and friends who introduce the case. Therefore, lawyers must spread interpersonal relationships and give people a good impression. However, the next case is only the beginning. How to fight for the best interests of the parties and obtain their support is the biggest difficulty. Just like in this case, when the other party offers a settlement amount of 210,000, in accordance with professional ethics, the client should first be notified and asked for his opinion, instead of being directly rejected by the lawyer. You must know that the realization of justice is risky, and the parties should have the opportunity to choose. If the lawyer feels that the chance of winning is great, he should explain to the client and remind the risk, and then the client should decide.
In the movie, the client did not act excessively, and he still sent the lawyer to court. Well, if in China, the client is likely to bypass the lawyer and reach a settlement directly with the other party, or even complain to the lawyer that he took the risk of rejecting the settlement for a higher share. Lawyers cannot take all the decision-making powers just because the client hands the affairs to you, although sometimes it is painful for the lawyers to return the rights to the client, and it is a waste of all previous efforts.
There is a dilemma for lawyers to obtain the support of the judge or a fair trial. There are three judges in the two films, two of which are partial to the defendant. The reason is that they both believe that these two cases should be settled and not go to the trial court. I think this is very interesting. In China, many judges are also willing to mediate and are not willing to hold courts and make judgments, because the courts will increase the workload of the judges. But obviously the inertia of American judges is stronger. This is because in the United States, cases have been diverted, and most cases will not enter the trial stage and will be settled through various forms. This is commonly known as the Adr non-litigation dispute resolution mechanism. In China, the vast majority of cases must be tried, and even settlements are often after the court session, so judges often put mediation work behind the court.
By the way, in the movie, the judges even coaxed and deceived when they did mediation work, and they gave them big sticks to turnips. This is very similar to China, hahaha.
4. In the United States, lawyers have more room for play than China.
Despite the above dilemma (clients, judges), there is still a lot of room for American lawyers.
Judging from the movie, the first is that obtaining evidence is much easier than in China. In "Rainmaker", not only did the judge go to the plaintiff’s home to collect evidence, but the judge also set a time for the plaintiff and the defendant to collect evidence from each other. Even though the defendant did not cooperate, the plaintiff could clearly understand the status of the staff when the defendant refused to settle the claim. Name and position, the plaintiff finally obtained key witnesses based on this, and won the lawsuit. Similarly, in the "Grand Trial", the plaintiff easily knew the names of all the staff in the delivery room at that time, thus making a breakthrough with the nurses. Hmph, if this is changed in China, even if you and the judge are very ironic, it is impossible to have this kind of evidence collection method.
The second is that there is a lot of room for play in the court. China's court debate is basically a debate on facts and legal principles, and facts rely on evidence. To be honest, the choice of evidence or the validity of proof is not a problem that can be judged by law. Therefore, the jury system designed in the United States is: the judge is only responsible for the legal technology, he presides over the trial, and the work of the jury is to integrate the IQ, emotion and logic of twelve people to judge the basic facts. In this movie, although the judge ruled that the nurse’s testimony should be deleted and ordered the jury to forget the testimony, the jury still made a verdict in support of the plaintiff based on ordinary people’s knowledge. Therefore, the lawyer's efforts on evidence, especially the witnesses, can play a very important role, and the closing submissions can also have an important impact.
Well, in China, the lawyers of both parties often face each other in court trials, but in the end, the judge makes a judgment based on his own understanding of the legal issues in the judgment of the facts. Therefore, sometimes the lawyers of both parties will feel that some parts of the judgment are "rule raids" when they see the judgment. Some parts are completely unreasonable as "opaque judgments." Therefore, what a lawyer in China has to do is not to argue with the other party, but to understand the judge's thoughts and persuade the judge. From this point of view, what lawyers do is not legal work, but human work. This not only allows a large number of lawyers to focus on public relations, but also allows the law to be quantified freely. People are used to replace the law. Everyone is different and every law is different. If this situation becomes inertial and expanded, the foundation of justice will eventually be hollowed out, and it will be replaced by administrative agencies or administrative agencies called courts.
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