“Unavailable evidence” in civil trials–dilemmas and implications of lawyer investigation orders in China

Lawyer investigation orders play a crucial role in facilitating evidence collection and improving judicial efficiency in civil trials in China. Despite their widespread application in practice, the mechanism governing their implementation remains ambiguous. This article begins by examining regulatory documents from 19 provinces and municipalities that have issued specific provisions on lawyer investigation orders, and traces the evolution of their use. Through interviews with judges and lawyers, the study finds that the lawyer investigation order reflects an incomplete shift toward an adversarial model, and uncovers judges’ persistent tendency to prioritize the pursuit of factual truth over procedural clarity. Since lawyer investigation orders balance public authority and private rights, their issuance should adhere to the principle of proportionality, including a clearer definition of what constitutes “objective reasons” for not obtaining evidence. To operationalize this standard, this article proposes a preliminary review mechanism, supplemented by a negative list that would offer judges clearer and more structured guidance.