Professional competence is the cornerstone of criminal defense—a fundamental consensus within the legal profession. The depth of a defense attorney’s mastery of legal provisions, while perhaps not surpassing that of prosecutors and judges, should at least be on par with theirs. Only by establishing oneself through professional expertise can one advance compelling arguments in defense, forcing the opposing side to take them seriously.
 

As judicial functions become increasingly specialized, public security, procuratorial, and judicial organs have over the years established well-defined, professionally divided working mechanisms in the criminal justice field—this trend is particularly evident within the procuratorate. Currently, the procuratorates are undergoing reforms to reorganize their internal structures, with each department focusing on specific types of cases. For instance, the prosecution division specializing in financial crimes has long been handling a large volume of such cases; its accumulated legal expertise and familiarity with relevant statutes often surpass those of most defense attorneys—a professional advantage conferred by the institutional framework. However, defense attorneys also possess unique strengths: they can devote far greater effort and attention to individual cases. Given the sheer number of cases handled by the prosecution authorities, it is simply impossible for them to achieve the same level of depth and thoroughness in every single case. By contrast, defense attorneys can concentrate their time and intellectual resources on specific cases, focusing intensively on complex legal issues involving multiple areas of law as well as intricate evidentiary details, thereby uncovering more effective arguments and perspectives. Thus, professional competence remains the cornerstone of any lawyer’s practice. In individual cases, once a contentious legal or evidentiary issue is identified, lawyers should make every effort to thoroughly analyze and fully develop it, ensuring that such issues wield decisive influence over the outcome of the case and significantly narrow the opposing party’s room for maneuver.

Moreover, the choice of strategy and the mode of communication are also critically important. Take Beijing-based lawyers as an example: they are often labeled by outsiders as relying solely on “three standard tactics”—namely, procedural defenses involving objections to jurisdiction, requests for recusal, and motions to exclude illegally obtained evidence. In judicial practice, as judicial authorities become increasingly sophisticated in handling these three types of procedural defenses, it has become ever more challenging for defense attorneys to successfully employ them. Nevertheless, these strategies still retain significant tactical value. For instance, in the context of jurisdictional objections, for certain “long-distance fishing” cases that remain unresolved, successfully challenging jurisdiction can often bring about a dramatic turnaround in the case’s outcome. In a case we at Xinglai Law Firm are representing—a suspected gambling operation involving a gaming company—the case has already entered the court trial stage; however, the jurisdictional objection is likely to succeed. If, during the negotiation process over jurisdiction, we can persuade the court to transfer the case to the location where the company is registered, this could effectively alter the litigation landscape. As for requests for recusal, with revisions to relevant laws and judicial interpretations, the scope of application of the recusal system has been significantly narrowed, making it considerably harder to secure a successful recusal motion. In current judicial practice, when defense attorneys file recusal motions against investigators, prosecutors, or judges, the ultimate goal is often not merely to achieve a personnel change. Rather, when the involved personnel have engaged in procedural violations or failed to act appropriately, filing a recusal motion serves more as a procedural check-and-balance mechanism aimed at drawing the attention of the trial court and higher judicial authorities to these issues, thereby prompting a review and correction of procedural legality—much like the saying, “The old man’s intention lies not in the wine itself.” Similarly, the procedure for excluding illegally obtained evidence faces comparable practical challenges. The proportion of exclusion motions ultimately upheld by courts has been steadily declining. Yet, when defense attorneys raise such exclusion motions, their aim is often not simply to exclude specific pieces of evidence; instead, by exposing the illegality of the evidence-gathering process, they indirectly influence the judge, thus creating opportunities for the defendant to obtain a lighter or reduced sentence.

Prioritizing professionalism also requires broadening one’s horizons, staying attuned to public sentiment and social conditions, precisely understanding and effectively applying criminal policies, and fully leveraging the “momentum” at hand—this is precisely what it means to demonstrate true professionalism. Don’t seek self-promotion or stray from your professional focus; instead, place the client’s interests unequivocally—and indisputably—at the forefront.

On the basis of professional expertise, lawyers should maintain goodwill throughout their practice, regarding staff members of judicial authorities as a community of professionals acting in good faith. They should communicate with respect and in a manner that avoids unnecessary confrontational attitudes.

Young lawyers sometimes tend to display excessive aggressiveness in communication—especially during court hearings. When a judge, in the course of a hearing, inadvertently overlooks a particular step and fails to proactively invite the lawyer’s input, these young lawyers immediately raise objections in a highly confrontational manner. In reality, in most cases, the judicial personnel are not acting intentionally; rather, their oversight stems from being overwhelmed by their heavy workload. If lawyers can communicate with a calm and composed attitude—while safeguarding their clients’ rights and respecting courtroom order—they will often achieve better outcomes.

Last week, during a business trip when I was communicating with the prosecution authorities, I found that they had received the case several days ago but had yet to review the case files. They assigned a young assistant—recently graduated and not yet holding the title of prosecutor—to serve as my point of contact. Faced with this situation, I made it clear that our lawyers were there precisely to act as helpful assistants to the prosecution, assisting in clarifying the facts of the case and sorting out relevant legal issues. We assured them that we would fully support their efforts whenever needed. This approach set a positive tone for subsequent communications with the prosecution. In my view, lawyers should first convey respect and a willingness to collaborate. Even if the other side initially adopts a rather cautious attitude, we should still maintain professional goodwill and advance our communication in a rational and courteous manner. Not only does this reflect our professional integrity, but from a strategic perspective, it also better safeguards the long-term interests of our clients.

If a conflict with the other party is truly unavoidable, even if you temporarily gain the upper hand during the confrontation, you should know when to stop and leave room for the other party. Remember that the litigation process remains under the control of the judicial authorities. If the relentless pressure exerted by your defense attorney prompts the opposing party to adopt an even more aggressive stance, it will ultimately be the defendant himself who bears the adverse consequences. While a tough and confrontational demeanor might win applause from the client and his family, it could end up costing the client his rights—much like “giving up the watermelon to pick up the sesame seeds.”

At the strategic level, I advocate avoiding unnecessary surprise attacks on evidence or arguments. Although some people believe that such surprise moves can create pressure during trial proceedings, in reality, courts can easily respond by simply adjourning the hearing, among other measures. Rather than resorting to surprise tactics, it’s far more effective to engage with the prosecutor early on, sharing key arguments and evidence, and striving to influence their decision-making even at the pre-trial stage. Even if the opposing side might take advantage of our goodwill and openness by launching supplementary investigations to fill gaps in evidence and arguments, truly fatal flaws in the evidence are difficult to rectify, and genuine gaps in the chain of evidence are nearly impossible to close completely. Therefore, we should remain steadfast in pursuing our defense in a professional and transparent manner. We must recognize that the likelihood of achieving success through surprise tactics is exceedingly low.

In the course of handling a case, defense attorneys should fully play their role as “assistants” to the judicial authorities. In practice, I have repeatedly encountered some rather special circumstances. For example, just a few days ago, I handled an insider trading case that had been transferred to the procuratorate nearly a month ago. Although the opposing party indicated they were willing to receive and discuss the case, they also made it clear that, due to the ongoing special rectification campaign in the financial sector—which has resulted in an extremely heavy workload—the investigators had still not been able to review the case files more than twenty days after the case was transferred. Under these circumstances, the opposing party hoped that when we came to communicate with them, we could assist the investigating authorities in sorting out the details of the case, highlighting key pieces of evidence, and providing expert opinions on specialized issues. Given that this case involves securities-related crimes, which are highly technical and involve legal relationships governed by other branches of law—such as civil guarantee contracts—it has unique characteristics. The opposing party also requested that we conduct a search for similar cases as reference materials. We believe that this is not merely a matter of “helping out”; rather, it is our responsibility to assist judicial personnel in efficiently familiarizing themselves with the case details and accurately interpreting the applicable laws, thereby reaching sound judicial conclusions. To this end, we have carried out extensive preparatory work: we have extracted key materials from the investigation files and compiled them into a detailed index; conducted extensive case searches to identify typical precedents and provided accompanying explanatory notes; and also included excerpts from relevant legal provisions. Now, the investigators have begun to refer to the materials we provided in their analysis—and their current focus has shifted beyond just the original case files to include the materials we have organized, enabling them to further assess the completeness and comprehensiveness of the evidence.

This “assistant” role isn’t about one party subordinating itself to another; rather, it inherently carries a certain degree of initiative. Just as in drafting regulations or charters within law firms or social organizations, or during the formulation of international treaties and corporate standards, the drafting party often holds the initiative and the power of discourse. The standards set by the drafter will be integrated into the entire drafting process, and the drafter’s perspectives can play a guiding role. The same principle applies to interactions with public prosecution, judicial, and law enforcement agencies: whoever takes the lead in providing systematic and professional materials will gain an advantageous position in professional dialogue.

Moreover, in judicial practice, even some experienced case handlers, despite their considerable seniority, may still lack a deep understanding of fundamental legal concepts due to their limited practical experience in handling certain types of cases. For example, during a recent exchange with the prosecutor, we pointed out—based on statutory provisions—that the case should be classified as a corporate crime. We had assumed this was basic legal knowledge, but it turned out that the prosecutor, having encountered few such cases, was not familiar with the relevant legal principles. The prosecutor mistakenly believed that a corporate act could only reflect the will of the organization if it were decided upon through collective deliberations by the management team, and was unaware of the applicable regulations as well as the current realities of managing private enterprises. Therefore, in court or in any communication setting, we should adopt a “legal education” mindset: Even when we assume that certain legal common sense is universally known, we must still explicitly cite specific statutory provisions. Only in this way can we enhance the authority and persuasiveness of our arguments and ensure that our views are not misinterpreted as mere casual remarks.

In addition to providing professional assistance, during the trial proceedings we should also actively help maintain order in the courtroom, thereby achieving the goal of rational persuasion. For example, when a defendant, overwhelmed by emotion, delivers lengthy and repetitive statements—or even resists and disrupts the proceedings—lawyers, with the presiding judge’s permission, may step in at an appropriate time to offer guidance and persuade the defendant to regain composure and rationality. This approach helps ensure that the trial proceeds efficiently and in an orderly manner, and—crucially—it makes the defendant more receptive, less resistant, and less likely to become confrontational. However, if the judge improperly restricts or denies the defendant’s right to speak, lawyers must, in accordance with the law and on the basis of sound reasoning, firmly advocate for the full and strict protection of all litigants’ rights—even if this leads to some conflict during the trial.

In short, an outstanding defense lawyer should strike the right balance between firmness and flexibility. I once participated in a high-profile case heard by the Provincial High People’s Court. During the trial, the defendant displayed an intense desire to speak at length, and the proceedings were frequently hampered by his protracted and repetitive remarks. The presiding judge asked me to help communicate with the defendant. I explained to him that repeated statements were not helpful to the trial process; on the contrary, they could weaken the impact of his arguments. He was reminded that the exercise of his rights should avoid abuse and should genuinely aim at persuading others. As a result, we effectively guided the defendant in terms of the trial’s pace, thereby facilitating the smooth progress of the proceedings. However, when it came to procedural disputes, we firmly filed motions—such as requests for exclusion of illegally obtained evidence—in strict accordance with the law, making no concessions whatsoever regarding the legitimate rights and interests of our client. This led the court to summon several police officers and witnesses to testify in person. We pushed our advocacy to its absolute limit, yet simultaneously knew exactly when to make appropriate compromises. Ultimately, the outcome of the case won widespread recognition from multiple stakeholders—including the defendant and his family, the prosecution, the judicial authorities, and even the spectators. Such professional conduct leaves a lasting positive impression. Later, in another case I handled, when procedural injustices arose, I refused to cooperate in compliance with the law. Remarkably, the presiding judge of that earlier case had since been transferred to another position—but precisely because of our previous collaboration, this judge understood very well that I am a lawyer who excels at working collaboratively, engaging in rational confrontation, and respecting the law. Consequently, he carefully listened to and fully supported my procedural demands. Thus, assisting the judicial authorities does not mean abandoning one’s principles. In highly adversarial criminal defense cases, cooperation is a mutual requirement for both sides. Only through a balanced, courteous, and disciplined approach to confrontation can a lawyer earn genuine respect.

In summary, during the course of case handling, defense attorneys should act as “assistants” to the judicial authorities. For matters in which they are unfamiliar with the case details or have failed to pay sufficient attention to key evidence, they should provide a catalog and abstract of crucial evidence, data organization tables, and comparative charts of conflicting evidence. For issues involving unfamiliarity with legal provisions and their meanings—for example, those who do not understand corporate crime, those who are unaware that lawyers in guilty-plea cases can still mount a defense of innocence, those who lack knowledge of the distinctions between administrative and criminal evidentiary rules, or those who do not grasp the differences between wager contracts and ordinary contracts—they should promptly engage in “legal education,” providing relevant statutory texts, interpretative documents, academic papers, case precedents—especially local regulations and cases from this region—as well as opinions from legal experts. For areas requiring specialized expertise—such as electronic data, virtual currencies, or trade secrets—defense attorneys should furnish expert opinions from specialists in these fields. Moreover, if the trial is disrupted due to reasons attributable to the defendant, the defense attorney should promptly mediate, either in court or outside of court, to help the parties calm down and stabilize their emotions. By serving effectively as “assistants,” we can ensure that judicial personnel are more receptive to defense arguments and thus better safeguard the legitimate rights and interests of our clients.

During the defense phase of a case, defense attorneys should adopt a strategy of “fighting without breaking.” We must adhere to the principle of confrontation rather than antagonism. While we may challenge the improper conduct of judicial personnel—such as illegal acts, omissions, or misinterpretations of the law—we must refrain from attacking their personal character. We should recognize the limits of conflict, boldly stand our ground when necessary, respond with flexibility, know when to stop, and strike a balance between firmness and moderation. Above all, our fundamental goal should be to ensure that judicial personnel genuinely listen to and internalize our defense arguments.

I once represented a case in which my client’s right to an initial meeting was initially obstructed. In response, I promptly resorted to legal remedies and lodged a formal objection with the leadership of the relevant authority. Following this action, the investigating agency promptly arranged the meeting in accordance with the law. Coincidentally, a state-run media outlet conducted an interview on how the procuratorial organs safeguard lawyers’ rights and interests. Although I had expressed some dissatisfaction with the initial obstruction, I nevertheless maintained an objective stance when evaluating their subsequent corrective actions, fully endorsing their practice of upholding lawyers’ right to meet with clients in strict compliance with the law and expressing hope that such protection of lawyers’ rights would continue unabated. After the publication of this report, a smoother communication atmosphere was established for the subsequent proceedings of the case.

Another case I was involved in was a major organized-crime case in Yunnan, in which the president of the court himself served as the presiding judge. Because we adopted firm measures to protect our client’s rights, the trial was temporarily interrupted. At a standstill in the proceedings, we took the initiative to ease the tension and made it clear to the court: As long as subsequent hearings fully respect and take into account the lawyers’ defense arguments, we are willing to actively cooperate with the procedure and work together to ensure that the trial proceeds smoothly and in an orderly manner. This strategy successfully reversed the adversarial dynamic; thereafter, whenever issues arose, the presiding judge tended to consult first with the legal team. Based on this communication founded on mutual respect, we succeeded in having the “organized-crime” label removed from our client in the first-instance verdict. Through a strategic approach of “fighting without breaking,” we achieved our phased defense objectives.

In the course of my practice, I’ve come to deeply appreciate that establishing a professional relationship with the investigating authorities—one that is both adversarial yet cooperative—is crucial for effectively safeguarding the legitimate rights and interests of my clients. Such a relationship requires us to uphold our principles and boldly defend our clients’ rights, while also knowing when to ease off, maintain open communication, and strike a balance between criticism and recognition. Criminal defense—especially in cases involving organized crime and evil forces—is a tremendous test of a lawyer’s endurance, wisdom, and art of struggle. We must be adept at pacing ourselves: daring to “draw our swords” on matters of principle, yet also knowing how to defuse deadlocks at critical moments and earn the respect—and even the heartfelt appreciation—of our opponents.

In the current rule-of-law environment, relying solely on defenses presented during court proceedings sometimes proves insufficient to effectively advance the legal process and correct deviations. Therefore, while firmly upholding the legal bottom line, strategically seeking external oversight and internal institutional feedback—what is commonly referred to as “filing a complaint”—has become an essential supplementary tool for lawyers to safeguard their clients’ legitimate rights and interests and promote judicial fairness. Without sunlight, darkness will inevitably prevail everywhere.

With regard to the party being “reported,” accountability should be precisely directed at the individual concerned. When an illegal act is committed by a specific individual, the focus should be squarely on that individual rather than vaguely targeting collective bodies such as the Public Security Bureau, the Procuratorate, or the Collegial Panel. Current judicial practice emphasizes collective decision-making in order to dilute individual responsibility—for instance, by submitting cases to the Judicial Committee or the Procuratorial Committee. However, both in internal regulations and in judicial practice, the core responsibility ultimately rests with the designated prosecutors and judges. Therefore, only by precisely identifying the specific individuals responsible can we effectively break the deadlock caused by the blurring of accountability.

Second, when filing a complaint, it’s crucial to identify the source of pressure on the person responsible. Sometimes, those responsible for handling the case themselves are subjected to improper interference from both internal and external sources. In such cases, the defense lawyer should simultaneously report the situation to both the originator of the improper instructions and the judicial authority handling the case. The defense lawyer’s appeal can precisely provide the person responsible—who may be reluctant to blindly follow orders—with a legitimate reason to explain the situation to their superiors or relevant authorities and resist undue pressure, thus creating a win-win outcome. For mass-involved economic cases (such as illegal acceptance of public deposits), unless there’s an immediate crisis or “explosion” of problems, public security organs rarely intervene proactively. However, once they do intervene, if the lawyer believes that no crime has been committed, then the complaint should be directed to the appropriate authority—such as the department responsible for GDP growth or social stability—to address the root causes of the issue.

Regarding the approach to “filing complaints,” in addition to reporting through official channels, defense lawyers can also seek public oversight. While individuals freely expressing their views on social media carries relatively high risks, I personally prefer collaborating with formal, authoritative media organizations. Such media outlets conduct rigorous investigations and verifications before publishing their reports; their investigative methods and linguistic precision are no less thorough than those of lawyers. Moreover, they possess strong self-protection awareness and mechanisms, ensuring both the accuracy and effectiveness of public oversight.

Many of my colleagues have concerns, believing that only outsiders can effectively handle matters. They worry that after “complaining” or “filing a grievance,” they’ll face negative repercussions locally, offend others, and find it harder to practice their profession in the future. But based on my experience, there’s no difference between working within Beijing and outside Beijing. By focusing on the issue rather than personal attacks and by filing complaints strictly according to law and regulations, we can actually earn greater respect from both our opponents and fellow professionals—whether it’s in shaping the outcome of a case or in our daily professional interactions and exchanges. This approach will always have a positive impact.

In criminal defense, there’s no one-size-fits-all “magic bullet.” Every lawyer develops their own set of effective methods—what one person finds wise, another may see differently. The following types of conduct, though they might produce short-term effects under certain circumstances, are ones I personally choose to actively avoid, both out of professional ethics and for the sake of long-term career development:

First, regarding secret recordings: Use them with extreme caution and never make them public. Whether in private meetings or formal encounters with judicial officials, secret recordings should be employed with the utmost care and avoided whenever possible. Even if recorded, their use should be strictly limited to private verification or, when absolutely necessary, self-protection. Once made public, such recordings fundamentally and devastatingly erode the foundation of interpersonal trust. Once a lawyer is perceived as habitually resorting to this practice, it will prompt the entire legal profession to become wary and hesitant to engage in any candid professional communication with him or her.

Next is the investigation of personal backgrounds—aimed at warning, rather than threatening. For example, putting pressure on an opposing party by examining past professional and behavioral flaws in its judicial personnel is a high-risk strategy. While such a strategy might serve as a deterrent, prompting the other side to take your professional opinions more seriously, once these details are made public, it effectively corners the opponent, leaving them with no viable escape route. This approach overlooks the powerful underlying factors at play in the case. Even if the judicial system removes the offending personnel, the replacements might well adopt the same stance—effectively closing off any possibility of rational communication for the lawyer themselves.

Finally, there’s the attitude of confrontation: Avoid extremes and maintain professional dignity. Whether it’s starting off with a highly charged, confrontational tone—“frowning and glaring”—or adopting an excessively submissive, “nodding and bowing” approach that sacrifices your principles, I’d advise against both of these extreme attitudes. The former will immediately spark unnecessary antagonism, while the latter will cause your professional value to be dismissed and undervalued.

I have secured numerous acquittals and lenient sentencing outcomes, each of which was made possible by a tailored, strategic approach. When necessary, we employ whatever methods are most effective—without being rigidly bound to any single tactic or technique. We and the judicial authorities are not locked in an adversarial “you die, I live” struggle. On the path toward achieving our clients’ defense objectives, we should communicate with prosecutors, investigators, and judges with high emotional intelligence, leaving room for compromise and understanding that “helping others ultimately benefits ourselves.” In this way, we can achieve win-win results and maximize the interests of our clients.

Beijing Xinglai Law Firm

Honorary Director

Doctor of Law from Peking University. Director of the Chinese Association for Research in Criminal Procedure Law; Special Appointed Supervisor for Lawyers at Detention Centers Nationwide, Ministry of Public Security; Part-time Master’s Supervisor at the School of Law, Peking University; Vice President of the Peking University Alumni Association of Finance; Part-time Professor at the School of Law, China University of Political Science and Law; Off-campus Graduate Supervisor at the School of Law, Beijing Foreign Studies University. Member of the Criminal Law Committee of the All-China Lawyers Association for the 8th and 9th terms; Deputy Director of the Corporate Compliance Law Committee of the All-China Lawyers Association for the 10th term; Legal Expert at the Beijing Municipal Commission of Planning and Natural Resources; Member of the Corporate Compliance Working Committee of the China Enterprise Confederation.

My primary areas of practice include criminal litigation, as well as the prevention and response to corporate criminal legal crises. I have handled numerous high-profile criminal cases in China, with particular expertise in cases involving official misconduct and economic crimes. My book, “The Great Defense—My Story of Criminal Defense,” published in both Chinese and English, has been distributed domestically and internationally. I coined the concept of “The Great Defense,” which is characterized by my ability to adopt a broad perspective and think strategically, looking beyond the specifics of each case to address the bigger picture. I employ a comprehensive approach to representation, drawing on a wide range of tools and techniques. I have extensive experience and refined skills in handling complex and challenging cases involving official misconduct and economic crimes, and I am adept at navigating intricate social and legal relationships.