Civil lawyer in Almaty — we gather evidence, which you do not yet have

Useful information

Civil lawyer: when you need one and how the defence is built

Most often people come with a question about a lawyer in three situations: a person is about to file a claim and does not understand how to properly draft the claims and evidence; has received a statement of claim and does not know what to answer and within what time limits; has learned that the court issued a default judgment without his participation, or lost at first instance and wants to appeal. In each of these situations the scope of work is different, and it determines whether a representative is needed at all.

From the article you will learn what civil cases a lawyer handles, how his procedural rights differ from those of a legal consultant, what a lawyer's request is for, when a pre-trial claim is mandatory and when it is useless, how the defence of a defendant is built, what to do about a default judgment and how an appeal proceeds. We will separately look at free legal aid and at how the cost of services is formed.

Do you need a civil lawyer in court

A civil case at first instance does not require the mandatory participation of a representative: the parties may conduct the proceedings in person, file documents through the court's registry or the "Judicial Cabinet" service. A simple dispute — recovery of a debt under a receipt, termination of a contract without property claims — a person handles himself: drafts the claim, collects the attachments, takes part in the hearings. But when it comes to assessing evidence, a counterclaim, an expert examination or an appeal, self-representation is risky: an error in the subject of proof or a missed procedural step leads to dismissal of the claim, which is far harder for higher instances to correct.

A civil lawyer in Almaty joins at any stage: before filing a claim, during the proceedings or on review. His task is to build the position: to identify the significant circumstances, the admissible evidence and the way to secure it, and to formulate the claims so that the court can grant them. The representative checks compliance with jurisdiction, time limits for filing and the pre-trial settlement procedure — violations here often become grounds for returning the statement of claim.

• the subject of proof is formed before the first hearing, not in the course of the dispute;
• evidence is collected and secured in an admissible procedural form;
• the claims are worded so that the court can issue an enforceable judgment;
• motions and objections are filed in a timely and reasoned manner;
• the appeal and cassation complaints rely on arguments that the court is obliged to examine.

What civil cases a lawyer handles

A civil dispute arises from a contract, infliction of harm, property relations or employment. A civil lawyer works with the conflict before trial and during the proceedings, where the procedure is governed by the Civil Procedure Code of the Republic of Kazakhstan. His task is to collect evidence, determine jurisdiction and build the position in the case.

Contractual disputes concern non-performance of obligations, amendment and termination of transactions, recovery of debt and penalties. A civil lawyer reviews the terms of the contract, the correspondence between the parties and the primary documents, and prepares the claim and the statement of claim. Debt cases require an assessment of the prospects of recovery and a review of the debtor's objections.

Cases on compensation for harm, property disputes and consumer protection require different evidence: expert opinions, extracts from the Legal Cadastre, receipts and reports. The services of a civil lawyer include collecting such materials and working with expert examination. Labour disputes concern dismissals, recovery of payments and reinstatement at work.

• Contractual disputes: non-performance of obligations, amendment and termination of transactions.
• Debts and recovery: arrears under loan, supply and service contracts.
• Compensation for harm: damage from road accidents, damage to property, harm to health.
• Real estate: recognition of ownership, division of property, disputes with a developer.
• Consumer protection: defective goods, works and services.
• Labour disputes: dismissal, wages, reinstatement.

Categories of civil disputes and what determines the outcome

The outcome of a civil dispute is determined by the evidence gathered before the proceedings and how it ties to the subject of proof. Work begins with an inventory of documents: what confirms the right, what confirms its violation, and what merely reflects a party's position. The court assesses evidence according to its inner conviction, so what matters is not volume but coherence and admissibility.

In contractual disputes, the contract with annexes, correspondence, acts and payment documents, and evidence of performance or non-performance of the obligation carry the weight. Mistakes include correspondence without confirmation of authorship and relevance to a term of the transaction; claims based on several grounds at once, which blur the subject of proof.

In consumer protection disputes, the key items are the contract, the receipt or other proof of payment, the claim and the response, and a specialist's report on the defect. A common mistake is a claim without a description of the demand and without proof that it was sent. In tort cases, the fact of harm, wrongfulness, causation and the amount of losses must be proved; most often what suffers is the recording of losses at the time of the violation.

• Procedural documents must rely on evidence, not on a retelling of events.
• Written evidence is submitted in originals or certified copies.
• Electronic correspondence requires confirmation of the identity of the addressee and the communication channel.
• A specialist's report is prepared for a specific question put by the court, not "in general".
• The calculation of losses and penalties is kept separate from the principal amount of the claim.
• Each claim should be supported by a separate evidential block.

The list is not exhaustive; the body of evidence is determined by the subject matter of the dispute.

Civil lawyer and advocate: rights in the process

Not only an advocate may represent interests in civil proceedings. The Civil Procedure Code of the Republic of Kazakhstan names as representatives advocates, legal consultants, employees of an organisation in matters of that organisation, and other persons admitted by the court. But paid representation on a professional basis outside the bar requires the status of a legal consultant and membership in the chamber of legal consultants — this is required by the Law of 5 July 2018. The court checks the documents confirming the identity and status of the representative and removes anyone not entitled to participate in the case.

Powers are divided into general and special. General powers are confirmed by a power of attorney and give the right to review the case file, file motions, present evidence, and take part in pleadings. Special powers — signing a claim, waiving claims, admitting a claim, changing the subject matter or grounds, concluding a settlement agreement, appealing a decision, receiving the awarded sum — must be expressly named in the power of attorney, otherwise the court will not accept such actions.

• the representative's status: an advocate, a legal consultant of the chamber, or another authorised person
• the existence of a warrant (order) or a power of attorney listing special powers
• experience in the category of the dispute, not just overall length of service
• the procedure for agreeing a position and exchanging documents
• the conditions for maintaining the confidentiality of the information provided

Advocate's request: how evidence is gathered

In civil proceedings an advocate is not limited to representing the client in court. The law grants him the right to send an advocate's request to state bodies, organisations and officials who hold information on the circumstances of the case. The request makes it possible to obtain written documents and explanations before the court hearing, without waiting for a court order to produce evidence. Information constituting a secret protected by law — banking, medical, communications secrecy — is not disclosed in response to an advocate's request: it is obtained by the court.

The organisation is obliged to respond in the established manner; a refusal or an incomplete response may be appealed or brought to the court's attention. If the information is not provided voluntarily, the advocate files a motion to obtain evidence: the court issues a ruling and addresses it to the body or organisation. Failure to comply with a court requirement entails liability provided for by law.

An important practical rule: if a law or a contract provides for a pre-trial settlement procedure, the court will return a claim filed without it. Therefore, evidence is gathered through an advocate's request in parallel with preparing the pre-action letter, so that the mandatory procedure is complied with by the time the claim is filed.

Gathering evidence by an advocate in a civil case usually includes the following steps:

• Identifying the bodies and organisations that hold the necessary documents
• Preparing and sending advocate's requests with a clear statement of the information required
• Recording the responses received and adding them to the case file
• Filing a motion with the court to obtain evidence where the information is refused
• Checking the evidence for relevance and admissibility before presenting it to the court
• Agreeing a position on the case in light of the materials gathered

The outcome of a civil case is more often decided by evidence and procedural steps taken on time than by eloquence at the hearing. It is therefore sensible to bring in a representative before the body of evidence is formed, not on the eve of the pleadings.

Pre-trial claim: when it is mandatory and when it is useful

A pre-trial claim is a written demand by a creditor to a debtor to perform an obligation voluntarily, before going to court. Under the Civil Procedure Code of the Republic of Kazakhstan, the court leaves a claim without consideration if the claimant has not complied with the mandatory pre-trial procedure established by law or by contract. It is mandatory where the law expressly says so for certain categories of disputes, or where the parties have included such a condition in the contract. Compliance is confirmed by evidence of sending: a postal receipt, an inventory of the contents, a delivery note or the addressee's acknowledgement of receipt.

If the procedure is not complied with, the court does not consider the claim on the merits but returns it or leaves it without consideration. The claimant may remedy the breach and apply again, but loses time and, for certain claims, risks missing the limitation period. The general limitation period in Kazakhstan is three years, and the court applies it only on a party's application. Sending a claim does not suspend the running of the period.

• the pre-trial procedure is established by law or by contract and must be complied with before going to court;
• failure to comply with the procedure leads to the claim being returned or left without consideration;
• a claim records that the debtor is aware and grounds interest for delay;
• evidence of sending a claim is a receipt, an inventory of the contents, a delivery note;
• a claim states the parties, the basis, the calculation of the demand and the deadline for performance;
• a claim often allows the dispute to be settled without court and helps gather evidence.

Securing a claim: how not to be left with a judgment that cannot be enforced

A claim for securing an action is made at the same time as the claim, not after judgment: while the dispute is ongoing, the defendant may sell property, move money out or transfer assets to third parties, and a won case will be left without enforcement. The application is filed in writing together with the claim or later: securing is permitted at any stage of the case until the judgment is enforced.

The law allows the seizure of property or money, a prohibition on the defendant performing certain acts, a prohibition on third parties transferring property to him or performing obligations in his favour, suspension of the sale of property in a dispute over releasing it from seizure, and suspension of enforcement under an enforcement document challenged by the debtor in court. The court determines the set of measures by the nature of the claim and proportionality to it.

The applicant substantiates the risk: confirms that the defendant will make enforcement of the judgment difficult. Evidence is needed — information about the sale of property, attempts to withdraw money, data on assets being registered in relatives' names — not references to bad faith.

Defending a defendant in a civil case

Once a claim has been filed and a copy of the statement of claim received, it is important for the defendant not simply to deny the demands but to build a position that can be verified against the case materials. A lawyer in civil cases analyses the claim and its attachments, identifies the relevant circumstances and prepares a response with objections to each of the claimant's arguments.

The response is filed in writing with evidence and served on the other participants. If the defendant has an independent claim against the claimant connected with the original claim, a counterclaim is filed: the dispute is heard in a single set of proceedings. The limitation period is checked — if it has expired, on the defendant's application this is grounds for dismissing the claim, unless the claimant proves suspension or interruption.

The claimant's evidence is checked for admissibility, whether it confirms the alleged circumstances and whether it contradicts the parties' explanations. The defendant may assert that evidence is forged, apply for an expert examination, call witnesses or request documents. If the case was heard without his participation and a default judgment was issued, an application to set it aside is filed with the court that issued it.

Practical defence of a defendant includes:

• analysing the statement of claim and identifying the circumstances to be proved
• preparing and filing a response with objections and references to the case materials
• filing a counterclaim if the defendant has an independent claim
• checking compliance with the limitation period and other conditions for bringing a claim
• challenging the admissibility and reliability of the claimant's evidence
• preparation of requests for expert examination, summoning witnesses, and production of documents

Default judgment: what to do if the hearing took place without you

If the defendant, having been notified of the time and place of the hearing, fails to appear and does not inform the court of valid reasons for non-appearance, the case may be considered in default proceedings. The judgment enters into force under the general rules, but the defendant has a separate remedy — an application to set aside the default judgment. It is filed with the same court, stating the circumstances that prevented participation in the hearing and the evidence confirming them.

The application must show two things: why the non-appearance was caused by valid reasons of which the court was unaware, and which arguments on the merits of the dispute were not examined as a result. The court verifies both conditions together. If at least one is not confirmed, there may be no grounds for setting the judgment aside.

Once the default judgment is set aside, the case returns to consideration on the merits — with the party's participation and examination of its objections. If the application is refused or the deadline for filing it has been missed, the remaining option is to appeal to higher instances: a first-instance judgment is appealed by way of appeal proceedings, after which cassation is possible.

A civil litigation specialist can step in at any of these stages: helping to establish the reasons for non-appearance, gather supporting documents, build a position on the merits and prepare the appeal. Below is what is checked first.

• Whether the summons was served properly and at the correct address.
• Whether the reason for non-appearance was valid: illness, work necessity, or other confirmed circumstances.
• Whether there is evidence that the court did not examine because the party was absent.
• Arguments on the merits of the dispute capable of affecting the outcome of the case.
• Compliance with the procedure and deadline for filing an application to set aside the default judgment.
• Prospects for appeal and cassation if the default judgment is upheld.

Representation before the appellate court

The appellate court reviews the first-instance judgment on a party's appeal or a prosecutor's request. It examines arguments that substantive and procedural law were applied incorrectly. Work begins with a study of the minutes, the audio recording of the hearing and the full text of the judgment: it is necessary to identify where the court assessed the evidence incorrectly or failed to apply a norm the party relied on.

The appeal or the response is drawn up in writing and filed through the court that issued the judgment. The appeal states which circumstances and evidence were assessed incorrectly; the response states why the other party's arguments are unfounded. Conducting the case includes preparing documents, filing them in the prescribed manner and monitoring deadlines so that the appeal is not left without progress.

New evidence is admitted on a limited basis: the party must justify why it could not have been presented at first instance. The lawyer assesses which materials will strengthen the position and which the panel will disregard. At the hearing, the arguments of the appeal or the objections are supported orally and requests are made. The court either leaves the judgment unchanged or sets it aside or amends it.

• study of the judgment, the minutes and the case file
• preparation of an appeal or a response to an appeal
• assessment of the possibility of presenting new evidence and justification of the reasons for not presenting it earlier
• participation in the hearing of the appellate panel, answering the court's questions, making requests
• preparation of an application to recover court costs from the losing party
• explanation of the prospects for further appeal by way of cassation

Instances of civil proceedings

A civil case passes through several instances, each reviewing its own scope of judgments and actions. The first instance is the main one: evidence is examined, circumstances are established, and a judgment or other final act is issued. Civil cases here are considered by district and equivalent courts, while disputes between entrepreneurs are considered by the Specialized Interdistrict Economic Court. Civil cases here are considered by district and equivalent courts, while disputes between entrepreneurs are considered by the Specialized Interdistrict Economic Court. Civil cases here are considered by district and equivalent courts, while disputes between entrepreneurs are considered by the Specialized Interdistrict Economic Court. Here the party states its claims, submits documents, requests and objections, so preparing the position at this stage determines the prospects going forward.

The appellate instance — a regional and equivalent court — reviews the lawfulness and validity of a judgment that has not entered into force, on the arguments of the appeal and the objections, is entitled to examine new evidence if the party has justified why it could not be presented earlier, and may leave the judgment unchanged, amend it, or set it aside and issue a new one. The cassation instance for civil cases is the Supreme Court of the Republic of Kazakhstan: it reviews acts that have entered into force for significant violations of substantive and procedural law, rather than re-assessing evidence.

Understanding the differences between instances allows you to build a defence without unnecessary steps: in some cases it is enough to object to the opponent's arguments, in others consistent appeals are required. In each case, a lawyer from our practice handles the matter, so the client deals with a single specialist and does not pass the materials to third parties.

• First instance: filing claims, gathering and examining evidence, issuing a judgment.
• Appeal: review of a judgment that has not entered into force on the grounds set out in the appeal, with the possibility of presenting new evidence if the reasons are justified.
• Cassation: review of acts that have entered into force for substantial violations of law, without re-assessing the evidence.
• Differences in the subject of review: the factual circumstances, the correct application of legal norms, the uniformity of practice.
• The representative's role: preparing procedural documents, attending hearings, consistent appeals.

The scope of review and the court's powers depend on the instance; evidence and arguments are presented with its tasks in mind.

Cassation: how an appeal is filed with the Supreme Court

A cassation appeal in a civil case is filed with the Supreme Court of the Republic of Kazakhstan after the case has gone through appeal. The procedure for filing, the list of attachments and the content requirements are set by the Civil Procedure Code of the Republic of Kazakhstan. It may be filed by a party to the dispute and other persons whose rights are affected by the judgment. The lawyer checks whether the time limit for appealing has been missed and whether there are grounds for restoring it.

Cassation reviews only the lawfulness of judicial acts: the correct application of substantive and procedural law. It does not re-examine evidence, does not re-assess witness testimony and does not establish new facts — those are the tasks of the first-instance and appellate courts. Representation at this stage is built on analysing the decisions already made and identifying violations that affected the outcome of the case.

Free lawyer in civil proceedings

State-guaranteed legal assistance in civil proceedings in Kazakhstan is not available to everyone: the law links the right to it both to the category of the case and to the procedural status of the person and their social position. In such cases, the lawyer's work is paid for by the budget, not by the client. In Almaty, such assistance is organised through the city's bar association and the territorial justice authority. The grounds and procedure for a representative's participation are determined by the Civil Procedure Code of the Republic of Kazakhstan and the Law "On Advocacy and Legal Assistance".

In a civil case, the court appoints a lawyer when the defendant has no representative and their place of residence is unknown, as well as in other cases expressly provided for by law. Separately, the law guarantees a lawyer's assistance in cases of special proceedings that affect a person's personal rights — for example, on compulsory hospitalisation in an organisation providing psychiatric care. The work of an appointed lawyer is paid for from the budget, not by the client.

• cases on recognising a citizen as missing or deceased
• cases on restricting legal capacity and on compulsory hospitalisation
• cases where the defendant's place of residence is unknown and the court appoints a lawyer
• cases where a citizen is exempt from paying for legal assistance on the grounds set out in law
• cases where a lawyer's participation is mandatory by direct operation of law
• other categories set out in the law on advocacy

Consultation with a lawyer on civil cases

A consultation with a lawyer on civil cases begins with a review of the client's documents. For disputes arising from contracts, these are the contract with its annexes and supplementary agreements, correspondence, acts, payment documents and claims. For non-contractual claims — proof of the right (a title document, a certificate of registered rights from the Legal Cadastre, a technical passport), documents on the infliction of harm, specialist reports and correspondence. If the case is already in court — the statement of claim and the response, the rulings on acceptance and preparation, the hearing minutes and previously issued judicial acts. Any written evidence and information about witnesses are useful.

Civil cases are heard under the Civil Procedure Code of the Republic of Kazakhstan, so even at the consultation stage it is clear how to frame the claim and which circumstances must be proved. The lawyer assesses the prospects: whether there is a basis for the claim, whether the limitation period has expired, whether the dispute falls within the court's jurisdiction, and whether there are obstacles such as an arbitration clause or a mandatory pre-trial procedure. It is also checked whether it would be more advantageous to file a counterclaim or to amend the subject of the claim. As a result of the review, the client understands what to rely on in the proceedings and which arguments the court is likely to reject.

• The contract, annexes, supplementary agreements and correspondence between the parties.
• Payment documents, acts, claims and responses to them.
• Title documents and an extract from the Legal Cadastre.
• The statement of claim, response, rulings and minutes, if the case is already in court.
• Specialist reports and information about witnesses.

Cost of a lawyer's services in civil cases

The cost of a lawyer's services in civil cases depends on the nature of the dispute and its complexity: the volume of evidence, the need for expert examinations and the number of parties involved. The number of instances also matters — from first instance to cassation, each requires separate preparation. This also determines the price of a lawyer's services in civil cases where the representative is a legal consultant.

The state fee for filing an application, which is calculated in monthly calculation indices, and the costs of expert examinations ordered by the court are paid separately. These amounts are not included in the cost of the lawyer's services and are paid into the budget or to the expert institution. The court, on the application of the party in whose favour the decision was made, awards that party the costs of paying for the representative's assistance against the other party: for pecuniary claims — not more than ten per cent of the satisfied part of the claim. The final price for the client may therefore be partly offset by the outcome of the proceedings.

Pricing is also affected by the need for travel, the gathering of evidence and work involving several episodes. The initial review of documents and assessment of the dispute's prospects are agreed separately from the conduct of the case. The representative's authority is confirmed by an order, and certain actions require a power of attorney — this affects the list of instructions and the cost of services.

• The amount and complexity of the dispute, the volume of evidence and the number of participants.
• The number of instances in which the representative will have to take part.
• The need for expert examinations and travel outside the location of the court.
• State duty and expert examination costs are paid separately.
• Recovery of representative's costs from the losing party — for pecuniary claims, no more than ten per cent of the satisfied part of the claim.
• The need to issue an order or power of attorney for certain actions.