On August 27, 2021, the Directorate of Civil Affairs and the Seal (DACS) published proposals for structuring lawyers' writings (see proposals of August 27, 2021 available on the pdf below).
These proposals are aimed above all at the conclusions of the lawyers and aim to impose the drafting of a summary of the grounds invoked in just 1,000 words very precisely.
The DACS introduces its project to reform the structuring of conclusions by agreeing that “the structuring of the conclusions submitted to the judge improves respect for adversarial proceedings and the clarity of debates; Indeed, the better presented and more concise written submissions allow the parties' lawyers to provide a clearer answer to better identified means. This structuring of the written documents leads, as a consequence, to a saving of time for the judge who will more easily understand the facts on which the parties agree and the means to support their claims ".
This project to reform the structuring of conclusions comes down to the sole requirement of synthetism, does not allow for the respect of the adversarial, nor for the clarity of the debates and nor for access to justice.
1) Presentation of the 3 DACS proposals of August 27, 2021 (SDDC / C3)
Always in a desire to constantly renew the regulations governing the profession of lawyers, while they are always having more difficulty in integrating and applying the new provisions, the DACS claims to want to participate in "the prospects for the development of positive law".
It is in this posture that the DACS recalls the requirements of Article 768 of the Code of Civil Procedure:
“For each claim, the conclusions must indicate the documents invoked and their numbering;
The new grounds invoked in reply submissions must be highlighted in the discussion. This materializes in practice by a line in the margins of the paragraphs corresponding to said new means;
The conclusions must be summary; those that present observations chronologically (“responses to XX conclusions”) do not comply;
The court rules only on the claims set out in the operative part. "
The DACS wants to "more strictly regulate the structuring of the records" while nevertheless refraining from imposing an "overly rigid and standardized framework of the conclusions" on the grounds that this would not appear appropriate.
However, the plan "to include in the conclusions a summary of the means before the device recapitulating the claims" so that the "court would only be required to examine the means thus summarized", appears just as inappropriate.
More specifically, the DACS makes three proposals:
- Proposal 1: Require the writing of a summary of the means at the end of the discussion;
- Proposition 2: Specify that the summary of the means cannot exceed 10% of the writings within the limit of 1000 words;
- Proposition 3: The court only examines the means developed in the discussion and mentioned in the summary.
These four proposals would be embodied in this way in article 768 of the CPC as amended:
“The conclusions must expressly formulate the claims of the parties as well as the factual and legal means on which each of these claims is based, with an indication for each claim of the documents invoked and their numbering. A slip listing the documents justifying these claims is annexed to the conclusions.
The conclusions distinctly include a statement of the facts and the procedure, a discussion of the claims and the means, a summary of the discussion, as well as a device recapitulating the claims.
The grounds which would not have been formulated in the preceding conclusions must be presented in a formally distinct manner. The summary of the grounds invoked in support of each claim takes the form of a numbered list of the grounds presented in the order of the claims and specifying for each the documents on which it is based. It cannot exceed 10% of the conclusions within the limit of 1000 words.
The court rules only on the claims set out in the operative part and only examines the means in support of these claims if they are invoked in the discussion and mentioned in the summary.
The parties must include in their last submissions the claims and arguments presented or invoked in their previous submissions. Otherwise, they are deemed to have abandoned them and the court rules only on the latest conclusions filed. "
The publication of the DACS project obviously aroused many reactions from colleagues, who expressed in turn their anger, their irony, their revolt, their exasperation and above all, their unanimous condemnation of this new restriction of the structuring. writing of conclusions.
This reform could initiate robotic justice.
See also Olivia DUFOUR's article: Avocats : the thousand words of anger https://www.actu-juridique.fr/justice/avocats-les-mille-mots-de-la-colere/
In this regard, in a resolution of September 17, 2021, the AG of the CNB:
- estimated that the application of the texts in force allows a sufficient framework of the entries without there being any need to add additional constraints accompanied by penalties unsuited to the variety and the particularity of the files in particular by their sometimes very complex character in fact and in law;
. that the courts of the judicial order do not have the technical means allowing, as they stand, to achieve the result obtained before the courts of the administrative order with regard to the single file of documents and the creation of a single first instance and appeal;
- OPPOSES the excessive increase in methodological constraints assimilated to procedural rules accompanied by irreversible sanctions which generates an increase in procedural incidents, appeals, as well as a heavier and longer trials with the illusory aim of compensating for the chronic absence of resources devolved to the judicial institution; (…)
- RECALLS to this end that the litigant expects good justice to be rendered within a reasonable time, which is strictly the opposite of such a proposal which hinders access to the judge and protects the right to a fair trial;
- DENOUNCES the serious attack on the independence of the legal profession and a new attack on the rights of the defense constituted by the imperative methodological framework for the formulation of legal and factual means, including the 1000-word summary, devoid of interest in view of the current regulatory framework;
- PROPOSES that, finally, an essential reflection be undertaken to reduce the inadmissible delays of judicial processing that successive procedural reforms have only increased in particular the so-called Magendie reform (Decree of December 9, 2009).
Frédéric CHHUM, Avocat à la Cour et Membre du Conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
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