The Strategy Choice and Application of Trial Debate

Author | Zhang Nannan Attorney Team

Many people say that courtroomDebate is the most exciting and most impressive part of a trial. Because in this stage, not only can it demonstrate the meticulous preparation a lawyer has undertaken during the initial review of the case files, but it also reflects the lawyer’s ability to adapt and perform effectively on the spot, serving as a comprehensive test of the lawyer’s overall capabilities. It not only tests a lawyer’s eloquence and psychological resilience, but also their ability to comprehensively apply legal knowledge and logical reasoning.

To understand the importance of courtroom debate, one must first clarify its purpose and role, which requires returning to Article 37 of the Criminal Procedure Law regarding the duties of defense counsel. Article 37 of the Criminal Procedure Law stipulates that the duty of a defense counsel is, based on facts and law, to present materials and opinions demonstrating the suspect’s or defendant’s innocence, lesser culpability, or mitigation or exemption from criminal liability, and to safeguard the procedural rights and other lawful rights and interests of the suspect or defendant.

This principle teaches us that the tools of a defense attorney in courtroom debate are “facts” and “law.” Our role should be that of a defender—engaging in debate with the prosecution to help the court ascertain the facts and safeguard the legitimate rights and interests of our client. The ultimate goal is to persuade the judge, not to engage in a personal confrontation between the lawyer and the prosecutor, nor to stage a performance.

The foundation of a debate lies in meticulous pre-trial preparation. To be fully prepared, thorough preparation in the early stages is essential. In my view, there are at least two key things you must do:

First, it is essential to thoroughly understand the case and establish a defense strategy.Whether it is structured as a syllogism or based on the four elements, there is no fixed format for presenting a defense argument. Some lawyers may be accustomed to using the syllogistic model of starting with a major premise, then a minor premise, and finally arriving at a conclusion; others may analyze the elements of the crime; and still others may directly reconstruct the facts of the case based on the trial proceedings.

Therefore, there is no fixed format for a defense argument, but there is a consistent objective: to ensure that the judges on the bench and the members of the public in the gallery can clearly understand your points. Above all, avoid speaking only to yourself in a way that leaves others completely baffled.

Additionally, whether and when to submit written defense arguments depends on the specifics of each case. If the case is very straightforward, it may even be decided on the spot in court. Alternatively, if a plea agreement has already been reached with the prosecution prior to the hearing and a written statement of commitment has been signed, a judgment can be rendered promptly after the hearing. In such circumstances, written defense submissions may be filed in advance.

In most cases, I do not submit my written defense brief prior to the trial; moreover, I may need to revise and refine it after the trial, in light of developments that occur during the proceedings. Of course, not submitting a defense brief prior to the trial does not mean we do not communicate with the judge beforehand. Particularly in cases where the actual facts differ significantly from the allegations set forth in the prosecutor’s indictment—especially when we intend to mount a not‑Innocent Defense—it is essential to engage with the judge in advance, explain the case in detail, and draw the judge’s attention to specific issues and details that require particular scrutiny during the trial.

Second, we must anticipate potential confrontations, prepare contingency plans, remain calm under pressure, and respond with composure.. When preparing our defense arguments, we need to anticipate the second and third rounds of debate; we must not fight unprepared battles. We must anticipate in advance: for each of our defense arguments, we should consider how the prosecutor is likely to respond, and, in turn, how we intend to counter the prosecutor’s response.

Just like in chess, you need to anticipate your opponent’s next move in advance so that you can remain calm under pressure.

If the initial review of exam papers is conducted thoroughly, the objections raised during cross-examination will naturally follow. Once the challenges to the evidence are clearly articulated, our defense arguments are essentially finalized. This process is, in fact, intricately interconnected and consistently coherent.

Furthermore, meticulous courtroom preparation must be complemented by flexible and adaptable litigation strategies. An excellent courtroom debate must address a variety of conflicts and relationships.

First, let us examine the relationship between the defense counsel and the prosecutor.During courtroom debates, is it necessary to adopt a confrontational stance—slamming the table and glaring—attracting attention in order to be considered a genuine contest of arguments? I do not believe so. On the contrary, most courtroom debates should be calm and rational. I believe that only in this way can the efforts of the legal community to achieve the optimal outcome in a case be fully demonstrated.

Of course, if the judge displays a very obvious bias during the trial, or if the prosecutor simply adopts a passive, laissez-faire approach, the defense counsel will have no choice but to adopt a more aggressive litigation strategy. However, regardless of which debating strategy or tone is chosen, the ultimate goal is always to secure the best possible outcome for the case.

Second, it is necessary to properly manage the relationship between the defense counsel and the judge.I believe that the most fundamental principle in managing the relationship between defense counsel and judges is to respect the court. If one believes that the judge is genuinely unable to conduct a fair trial, then the request for recusal should be granted. In short, effective communication lies in asserting one’s position in a lawful and compliant manner; be sure to avoid turning the exchange into a heated verbal confrontation between counsel and the judge.

Additionally, as another lawyer just mentioned, in many criminal cases today, judges often do not proactively summarize the key issues in dispute during the trial. At this stage, the defense counsel can assist the judge in summarizing the key issues, guide the pace of the trial, and proactively focus the proceedings on the central points of our defense.

Third, it is necessary to properly manage the relationship between the defense counsel and the defendant.The defendant has the right to defend himself in court; therefore, how the defendant’s self‑defense and the defense counsel’s advocacy can be coordinated during the trial to create a synergistic defense and achieve the best possible outcome involves the issue of division of labor.

This requires the defense counsel to conduct thorough pre-trial preparation, especially when the defendant has pleaded guilty and accepted the proposed penalty; in such cases, where the lawyer intends to mount an independent defense of innocence, it is even more crucial for both parties to reach a prior consensus.

Fourth, it is necessary to properly manage the relationship between the defense counsel and the client’s family.. Nowadays, the families of parties involved in many criminal cases learn about the procedural steps through online channels, which means they may receive a great deal of information that they believe to be accurate or that they perceive as being central to their case.

If the defense attorney fails to raise these so‑called points of defense in court, the family will perceive the attorney as being negligent in their duties. Therefore, I advise the defense counsel to thoroughly explain this situation to the family before the trial and to inform them that, from a professional standpoint, these matters are neither the central issues in this case nor relevant to it. If I were to raise them in court, the judge would likely interrupt my remarks. During the trial, if it becomes necessary to mention them, there is no need for a detailed discussion—simply address them briefly.

Fifth, it is necessary to properly manage the relationship with the defense counsel of other co-defendants in the same case.Prior to the commencement of the trial, the defense counsel for co-defendants should communicate in advance. If they can agree on a unified defense strategy—such as jointly pleading not guilty or arguing for a lighter sentence—thereby pooling their efforts, that would, of course, be ideal. However, when the issue involves principal and accessory offenders, opinions should be expressed rationally based on the facts and evidence; it is imperative to avoid shifting responsibility onto another defendant in a separate case without regard for the facts and evidence.

Sixth, it is necessary to properly manage the relationship with the other defense counsel representing the client.This is, in essence, a matter of internal division of labor. According to the law, a defendant may appoint no more than two defense counsel. Some defendants also appoint two defense attorneys who work in tandem, which then raises the issue of how the two attorneys should divide their roles during the trial.

Before the trial begins, the two parties should clearly allocate responsibilities: who will handle the cross‑examination, who will present the opening arguments in the first round of closing statements, and who will respond during the second round of courtroom debate. As long as they coordinate effectively, the collaboration between the two lawyers can be highly complementary.

In summary, a lawyer’s courtroom advocacy is a comprehensive skill that integrates legal expertise, logical reasoning, psychological resilience, and even the art of public speaking. There is no such thing as an “optimal” debate; the truly optimal debate is always yet to come, born in the crucible of the next courtroom confrontation.

Author

Introduction

Zhang Nannan

Member of the Management Committee and Director of the Criminal Law Center at

Deputy Director of the Commercial Crime Defense Legal Professional Committee of the Shenzhen Lawyers Association

Member of the Committee on Defense of Official Crime, Guangdong Lawyers Association

Outstanding Female Lawyer of Shenzhen City

Attorney Zhang Nannan specializes in criminal defense, criminal compliance, and criminal risk prevention and control. She has led numerous cases resulting in decisions not to prosecute, withdrawal of cases at the public security stage, release on bail pending trial, and suspended sentences.

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Zhiheng · Introduction