今回は民事訴訟の話です。
裁判というのは勝負の世界ですから、勝ち負けがあります。
ただし、原告側と被告側は少し事情が違います。
原告というのは、訴えを提起する側です。
例えば、貸した金を返せ、と要求する側です。
原告側から訴え提起の相談を受けた弁護士としては、勝訴の見込みを検討します。
判例等に照らして法律論的に正当な主張ができるか、その主張を基礎づける証拠は十分か、などを検討するわけです。
そして、多くの弁護士は、勝訴の見込みがある場合だけ受任します。
依頼者側としても、弁護士から勝訴の見込みがあるという説明を受けた場合には提訴を依頼しますが、勝訴の見込みがない（または少ない）という説明を受けた場合は訴え提起を断念する場合が多いです。
これは当然のことで、訴訟提起を弁護士に依頼する場合、勝訴敗訴にかかわらず着手金や実費の負担が必要になりますから、勝訴の見込みがない場合は、それらをどぶに捨てるような結果になりかねませんので、訴え提起を躊躇することになるからです。つまり経済的にペイしないことはしないということですね。
これに対して、被告側は、すでに訴えられた立場ですから、それに対してなんにも反論しなければ、原告の主張を認めたことになりますから応訴せざるをえません。
もっとも、弁護士に相談した結果、これはどう転んでも完全に負けるしかありませんと言われれば、弁護士に依頼して無駄な抵抗をしても、この場合も弁護士に対する着手金負担という損失が増えるだけですから弁護士に依頼することはしないと思います。
しかし、何らかの抵抗をすれば、支払額を少なくできるかも知れないというような場合は（最悪時間稼ぎだけでもしたいという場合は）、弁護士に依頼することもあるだろうと思われますし、弁護士から万が一にでも勝てる可能性があると言われれば、それにすがって依頼する場合もあるだろうと思います。特に請求された金額が多額な場合は、はいそうですか、と原告の請求に応じられない場合が多かろうと思われます。
このような事情で、敗訴が予想される被告からの弁護士需要もかなりありますので、弁護士としてその需要に応えることは当然のことです。
つまり、訴訟の結果についての見通しが的確にできる弁護士が受任した原告側の事件は勝訴の確率が相当高いと言えますが、そのような事件の被告側に立った弁護士は、その反面として敗訴率が高くなるのは理の当然です。
ですから、被告側の代理人になった弁護士の敗訴率が高いからといって、当然にその弁護士が無能であることを意味するわけではありません。
被告側の一部敗訴は、実質的には勝訴（大勝利）と見ていい場合も多いと思います。
以上のようなことを踏まえて有能な弁護士とは、ということを考えてみますと、
原告側弁護士については、勝つべき事件をきっちり勝つことができる弁護士
被告側弁護士については、仮に負け筋の事件であったとして、負けるべきは負けるとしても依頼者の損害を最小限度にとどめることができる弁護士、無理筋の訴えに対してはその無理筋たる所以を的確にとがめて勝訴する弁護士
ということになるのではないかと思います。
ところで、弁護士同士の法廷での争いというのは、主張の合理性とその主張を裏付ける立証ができるかどうかによって勝敗が決まります。
刑事事件の場合は、原則として主張立証責任が全て検察官にありますから、弁護人としては検察官の主張と立証を動揺させれば足ります。
しかし、民事事件においては主張責任と立証責任は原告と被告に分配されていますから、原告側も被告側も主張すべきは主張し、立証すべきは立証しなければなりません。
立証責任は原則として主張すべき事実について問題になりますから、まず主張すべきことを主張しなければなりません。
順番としては、まず原告が自分の請求を理由あらしめる主張をして、その主張事実を立証することになります。
原告が自分の主張と立証に成功すると、今度は被告側が自分に有利な主張をするとともにその主張にかかる事実を立証する必要が生じることになります。それに失敗すると負けるということです。
この段階では、原告の主張（と立証）が成功している場合、被告は原告の主張に対応する主張（と立証）をしなければいけません。
つまり、被告としては原告の主張にかみ合った反論をする必要があります。
かみ合ってない反論をしても、原告の主張（と立証）の効果を失わしめることはできません。
裁判の勝敗について不確定要素がある事件、つまりどちらも敗訴の可能性がある事件というのは、双方ともに強みもあれば弱点もあるということです。
原告としては、当然のことながら、被告の弱点を突いてきます。
被告としては、その攻撃に対していかに効果的な防御を行うことができるかが問題になります。
弱点を突かれているわけですから当然苦しいわけですが、そこをなんとかするのが弁護士の腕の見せ所でもあります。
どのようにして「なんとかする」かと言いますと、普通は、相手の攻撃の論理的な欠陥や隙を探してそこを突いたり、相手の論理を上回る説得力のある論理を考えたりするという、言わば正攻法の考え方です。（ここでは主張の問題に絞ってます。立証における攻撃防御も大事であることは言うまでもありあません。）
この正攻法による反撃を行うためには、相手の主張する論理を正確に理解する必要があります。
正確に理解して初めて的確な反論、かみ合った反論、説得力のある反論が可能になります。
しかし、次に述べるような弁護士もいるかも知れません。
原告代理人から弱点を攻められた被告代理人は、反論したいけど論理的な反論ができない。
そこで、原告代理人の主張を自分が反論しやすい主張にねじ曲げた上で、それに対する反論を考える。自分が反論しやすいようにねじ曲げているのですから、ねじ曲げた主張に対してはそれなりに有効は反論にはなるのは当たり前です。と言いたいところですが、もともとねじ曲げていますから、それに対する反論も不自然になる場合が多いのではないかと思われます。
これで反論した気になったとしたらどうなるのでしょうか？
実は、こういうタイプの弁護士は、依頼人から見れば、頼もしく見える可能性があります（敗訴判決が確定するまではですが）。
なぜかと言いますと、民事訴訟では、弁護士は自分の主張を準備書面という書面にまとめて相手方と裁判所に提出するわけですが、その前に依頼人にも見せて、こういう主張をします、といって依頼人の了解と納得を得るのが通常です。
で、相手の主張をねじ曲げた準備書面を見せられた依頼者はどう思うかと言いますと、依頼者が法律知識がない場合には、自分の弁護士が相手の主張をねじ曲げているかどうかなどよく分かりません。
ですから、相手方はそういう主張をしているんだろうと思ってしまいます。
そして、そのような相手方の主張に対して、こてんぱんに反論する自分側の主張が書かれているわけですから（繰り返しますが、相手の主張をこてんぱんに反論できるように改変しているわけですから反論できるのは当たり前です）、準備書面の字面だけ見れば、勝訴間違いなしのように見えます。
しかし、そのような準備書面つまり被告側の主張は、裁判官から見ればねじ曲げていることが一目瞭然です。
ねじ曲げた主張に対しては反論になっているとしても、本来の主張に対しては何の反論にもなっていません。
その結果どうなるかというと、被告側の負けになります。
依頼者にとっては、自分が依頼した弁護士に騙されたようなものです。
しかし、そんな弁護士を依頼した当事者の自己責任です。
こういう弁護士にひっかかりますと、勝てる裁判も勝てない、負けなくてもいい裁判も負ける、ということになると思われます。
で、このような相手の主張を（依頼者の利益のためではなく）自分の都合のいいようにねじ曲げて反論した気になっている弁護士が実際にいるかどうかが問題になりますが、訴訟以外の場で論争相手の主張をねじ曲げて反論した気になっている弁護士は、私が知る限り一人います。
言うまでもなく小倉秀夫弁護士です。
小倉弁護士が、自分が受任した訴訟においてどんな準備書面を書いているのか知りませんので、小倉弁護士が負けなくてもいい訴訟に負けているかどうかは分かりません。
しかし、「文は人なり」という言葉もありますので、小倉弁護士が二重人格でもない限り、小倉弁護士のブログ等での発言は、小倉弁護士に事件を依頼する際の判断資料の一つにはなるのだろうと思われます。
私は最近場外乱闘で、「少なくとも、優秀な法務部のある企業からの依頼は来なくなると思われます。 」と書きましたが、それはそういう意味です。
私のブログ等における発言が、私に事件を依頼する際の判断資料の一つになることも同様に当然のことと思っています。ただし、一つ二つのエントリだけで判断して欲しくないな、と思いますし、ちゃんと読んで判断してほしいと切に願っています。
なお、小倉弁護士が他人の意見をねじ曲げているかどうかについてですが、「la_causette」で小倉弁護士が他人を批判している文章とその批判対象とされている相手の文章を比較して読み比べれば通常の読解力のある人ならばすぐに分かると思います。
私もさんざんねじ曲げられていますので、対抗上こういうブログ（モトケンの小倉秀夫ヲッチング）を書かざるを得ませんでした。興味のある方はどうぞ。
書かざるを得ないという意味では、このエントリも同様です。
なんだかなぁー、という記事ですね。あなたがですよ。
というコメントは予想しています。
小倉弁護士が同じことを私に対して繰り返しているわけですが、私はそれを黙って我慢していなければならないのでしょうか？
書かざるを得ないという気持ちもわかりますが、ちょっとやり過ぎではないかなぁと思います。小倉弁護士のやり口をなぞってみたのだと思いますが、このエントリを読んでも小倉弁護士は今更失うものなど無いのに対し、却ってモトケンさん自身を貶めているように感じます。小倉ウォッチャー以外がこの記事を読んだら、もともと同レベルでやりあっていたのだという印象を受けてしまうのではないでしょうか。
同レベルでやりあっていたと思う人は相手にしていません。
＞このエントリを読んでも小倉弁護士は今更失うものなど無いのに対し、
失うものがあることを示すためのエントリです。
小倉弁護士は、刑事司法関連の私のエントリに対して、出鱈目であることもトンデモであることもおかまいなしに、ただただ私の評価を下げるための批判のための批判にとどまらない名誉毀損や中傷エントリを書き続けています。
その姿勢の背後には、どうせ自分は刑事事件をしないのだから、刑事事件についてどのような評価を受けようが関係ないという高をくくった姑息な考えが透けて見えます。
しかし、小倉弁護士がやっていることは、ＩＴであろうがなかろうが分野を問わず弁護士としての基本的な資質にかかわる問題であることを、より多くの人に知ってもらう必要があると考えてのことです。
実は、このエントリの草稿は１０日以上前に書いたもので、小倉弁護士の対応によっては公開しないつもりで寝かせておいたものです。
小倉弁護士には、自分のやっていることをそろそろ自覚してもらいたいと思いますが、自覚しないのなら徹底的にやります。
黙っていても同じですから。
私と小倉弁護士の応酬を、（元）検察対弁護士という図式で捉える人もいるようですので、弁護士全体に対するイメージダウンの恐れも大きくなっています。
たぶん、他の弁護士は誰も小倉弁護士の相手をしないと思いますが、私は乗りかかった船ですから、向こう岸までお付き合いすることもやぶさかではありません。
そうなったら確実に小倉弁護士のほうが失うものが大きいですよ。
現在の年収は私よりずっと多いはずですから（＾＾；
「同業であるが故に看過し得ず」の心境でしょうか？
＞分野を問わず弁護士としての基本的な資質にかかわる問題である
＞弁護士全体に対するイメージダウンの恐れも大きくなっています。
ある職業全体の世間評価を低下させる同業者の存在は、その職業に就いている者が先ず率先して批判し、指導するべきです。そうした同業者同士の相互批判の体質こそが、業界の「自律体質」の現れでしょう。
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