Easy Guide to be Well-Organized for the Trial
The guide is a useful guide to trial in all levels of Thailand court legal system, focus on pre-trial and trial, whether enforcing side or defense side, provides basic information and 5 simple steps in which the disputing parties should understand and take into account when preparing for trial. It helps you to be well-organized and to become more confident, fluent and accurate.
The knowledge provide by this guide are applicable to all types of trial whether civil, commercial and criminal. Also arbitration, although, a number of difference between those do not make a real effect to the outcome, such as arbitration trial the disputes parties may agree to choose languages and governing law for the proceedings. That is because the fundamental principle of the trials are mostly the same ‘give an unambiguous proof without a doubt to everyone’
In addition this guide gives you basic understand about Thai Legal system and things you have to deal with such as time frame and costs. Let’s go step by step to be well-organized for the trial.
Step 1 Perfect Timeline with Facts and Evidences
A perfect timeline is always the best to guide you and every lawyer whether litigation lawyer or trial lawyer, it not only helps those to have a better understanding about the case but also leading to the appropriate strategy and very well actions plan of the whole proceedings. It also ensuring that you and your trial lawyer do understand the case very well, the perfect one must come together with the full lists of facts and evidences, at this stage, no matter how good they are!
A perfect timeline means ‘all facts and supporting evidence are identified and located’ such as what happened? who does what, when, where and how… Importantly, how many pieces of evidence can you provide to support those matters of fact? During the preparation, you may be surprised that you just realized that there are so much information and evidences are missing and ambiguous!
Particularly, for every trail lawyers, understand the case exceeded all other proceeding in importance. Keep this fact in mind, the timeline easily gives everyone include a trail lawyer the bullet point of the case both questions of fact and questions of law. It makes them be confident to give the clients an accurate advice includes major factors and possible risks, finally the best outcome.
So, prepare a timeline before pre-meeting with a lawyer. After meeting with the lawyer and sharing questions to each other, you will have an opportunity to improve your timeline, up-to-date and make it to be a perfect from time to time. Keep trying to make a perfect one and get your best results for your case.
Step 2 Express the Facts and Opinions at the Right Time
Everyone is entitled to their opinion but the trials are very strict by the rules of burden of proof and the standard of proof. Keep this fact in mind, the judge is not binding to take the opinion into account when delivers a judgment to a case, but the judge is binding to take and evidence into account when judgment accordingly to burden of proof.
Particularly, the court trail, the judgment will be delivered by the existing law, facts and evidences. Don’t wait too much time making an opinion when hearing. It does’t help, the trial needs matter of facts and evidence support, an accurate argument with accurately evidence. Thailand uses the Civil Law System or Codified law, not the Common Law System or Judge made law. When a statute is plain and unambiguous, the Thai court must give effect to the intention of the legislature as expressed.
Therefor, you opinion whether about what the law should or should not be, why something happened or why somebody does somethings, don’t helpful at trial stage or hearing stage. However, your opinions will be well worth to the case when the situations become;
Ambiguous of Evidence
Sometime, after trial lawyer of both side examining evidences and witness from the other side, the case become ambiguous, the outcome can be in favor for both parties. At this moment, your opinions will be work well, good opinions are always convincing the judge to deliver the judgment in favor of the side which express a sharp point of view. It don’t need to be an extremely sharp, but need to be better than another side.
In one hand when the statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed or of the spirit of provisions. In other hand when the statute is unclear the judge is always looking for a good reasons which probably forming a fairness judgement under his signature.
Express Opinion Through Closing Statement
When the hearing is done, the disputing parties have the rights to file the closing statement motion to express the opinion in both matters of fact and matters of law, to convince the judge that why the judge should to deliver the judgement in your favor, the closing statement will be attached to the file, a higher court will always see your closing statement. You have a right to file the closing statement at all levels of Thailand court.
Step 3 Understand Keys Proceedings
Prescription should be an early question to your litigation lawyer.3 All types of cases have the prescription which limited period of time to take legal action, it means you have to take some legal requirement actions within the deadline. Mostly, the prescriptions of civil and commercial cases are between 3 months to 10 years. The compoundable criminal case, the prescription is only 3 months. non compoundable criminal 20 years prescription maximum etc. 4
The Civil and commercial trials, the defendant may present the court a clear proof of prescription matters which the case will be dismissed on the judgment date (not on the date of the proof). The Criminal trial, the case can be immediately dismissed when the court see this matter himself that without the accused’s presentation about the case prescription.
Another deadline of each trial proceedings will be requirement motion of each stage, it will be handled by your representative such as when to filing the list of evidence, written testimony.
3.2 Burden of Proof and Standard of Proof
This is the golden key for every legal trial. particularly, the trail by court and Arbitration, the proceeding from the hearing date till the decides the outcome date are strict about these golden rules!! You should give these questions to your trial lawyer and make sure you have a clear understand about these.
Burden of proof guides you to the key points of presentation and argumentation which is definitely needed to prepare accurately. It helps you to prepare accurate witness and evidence to support your case. Standard of proof guides you to the quality and quantity of witness and evidence which is the best one to prove the key point of the case.
“In civil cases, the standard of proof is met if the party with the burden of proof can adduce evidence to support that his claim is more probable than not, or there is greater than 50 percent chance that the claim is true” 5
“In a criminal case, when court hearing, the prosecutor must prove without reasonable doubt that the accused committed the charge”.6 Read more about criminal prosecution
Importantly, if the litigation concerning the officer either judge or not, sounds of third parties and documents are always louder than the sounds of the disputing parties.
3.3 Rights of Appeal
In Thailand, there are 3 levels of Court of justice. First the Court of first instance like Phuket Court and other provincial and district Court around Thailand, second, the Court of Appeal and finally the Supreme Court. Generally, after the first judgment you have the right to appeal to a higher court both questions of law and questions of fact within 15 days or 1 month from the judgment date (extendable by the court order).
Check this out with your lawyer, there will be some exceptions! For example, in civil and commercial case; when the amount in dispute doesn’t exceed THB50,000, no appeal shall lie on questions of fact, unless a judge of the Court of first instance gave a dissenting opinion or has certified that there are reasonable grounds for appeal etc. Also, to appeal to the Supreme court, you must have the supreme court approval after reviewing the motion to appeal.7
Important note; theoretically, the High Courts both the Court of Appeal and Supreme Court may issue an order for extra hearing during the trials but it is never seen in reality practice. Therefor, the best evidence should be super perfect and filed at the first court of instance!
For the Arbitration, generally, the arbitral decision is final, except some serious reason such as dishonest trial, wrong procedure.8
3.4 Awards Enforcement
If any, an example for civil and commercial cases, where a judgment has not been complied with in whole or in part by the losing party. Within 10 years from the date of pronouncement of the judgment, the winning party is entitled to the enforcement.9 The enforcement of the award of the arbitral will be proceeded under the same rules through the court procedure. Read more about enforcement of the awards
Step 4 Costs and Time Frame
A number of costs for legal trial, court fee, lawyer fee, and other such as translation fee. Criminal trials do not have Court fee. But other court trials are always come with fees. For example, in civil and commercial cases in which the claim amount does not exceed THB 300,000, court fee is 2% of the claim amount, THB 1,000 in maximum. The case in which the claim amount exceeds THB 300,000, court fee is 2% of the claim amount, THB 200,000 in maximum, plus 0.1% of the claim excess of THB 50,000,000. On top of the court fee, there will be lawyer fee and relevant expenses such as translation and translators fee when hearing etc. Fees of Thai Arbitration trial are more expensive than the Court but you pay for more services quality about document support.
There are so many factors effect on the time frame of litigation. The time frame in which you should take into account when prepare for trail may be classify by pre-trial, mediation for settlement, first court trial, higher court trial and enforcement proceeding, if any.
Good news, since the 1997 Constitution became effective, the Thai Court has been trying to apply to the principle of slow trial not justice. Now, the trial of each level of the Thai Court, whether in Phuket or not, go fastest I have ever seen, each trial may take about 6 months to 1 year depending on so many factors.
Step 5 Being Open for Settlement
Whether before or during trail, whether you are a claimant or a defendant, try to have a settlement to resolve the dispute, that even if you and your trial lawyer feel very confidence of the case. The settlement is always the best resolution to all legal disputes. It not only save your energy and make the legal proceeding quicker but also give you the acceptable results.
Keep this fact in mind, there are a number of factors beyond your control, some major factors badly impact on the outcome! For example, the other side, witness etc. Even if your side and the duty judge!! Most importantly, the judgment may not be in your favor. You can not decide whatever you want but you can decide whatever you can accept!
Additionally, for some criminal cases, settlement is possible and the case can be closed without punishment or serious punishment.
All the legal trails are needed to be well-organized for the best results, it is something everyone can do. A good preparation and organizing save time, money and energy. Be well-organized and good luck with your case. If you are in need of a litigation lawyer, a trial lawyer or for more information about Thailand litigation, just visit dispute resolutions page or feel free to contact us at anytime, our trail lawyer handling the cases in Phuket and the whole Thailand.
1 the Thailand Civil and Commercial Code, Section 4
2 the Thailand Arbitration Act B.E. 2545, Section 28 and 34
3 the Thailand Civil and Commercial Code, Section 193/9 to 193/35
4 the Thailand Criminal Code, Section 95 to 101
5 Dr. Suthathip Joonlamon: Thai Judge Examination 15 June B.E. 2556
6 the Thailand Criminal Procedure Code, Section 227, Supreme Court Judgment no. 7404/2560
7 the Thailand Civil and Commercial Procedure Code, Section 247
8 the Thailand Arbitration Act B.E. 2545, Section 40, the Thailand Civil and Commercial Procedure Code, Section 222
9 the Thailand Civil and Commercial Procedure Code, Section 271