Fahri Azzat meditates upon one of the most misunderstood questions posed during a hearing with oral submissions.
Time, is one, if not the, most important possessions of our lives. And as a litigating lawyer, we waste an awful lot of it in our practise waiting. We’re always waiting for something to happen, even if it is just an adjournment. So you will find most litigators are creative with our time between hearings. We read, meet new friends, chat, know most of the stalls in the canteen, smoke or not smoke, and if the matter is really terribly pressing, we will give the file a once over reverting to the latter activities.
This creativity does not end when our case is finally called up for hearing. In fact, this is when we have to be even more creative because of the inevitable question that we are asked:
How long will you take, counsel?
Like an exam essay question, it appears deceivingly simple at first. But when you attempt to actually answer the question, you will be confronted by its complexity; especially if you want to answer the question honestly. Do not be like those arseholes who say ‘5 minutes’ and then unapologetically spend the next 3 hours submitting just their case.
To comprehend the complexity, let’s take a simple case. I’m thinking of an Order 14 hearing with maybe about three or four substantial affidavits (like 4 200-250 page volumers), with maybe 2 serious issues to be argued out, with maybe a shade in the Plaintiff’s favour on the application. These are some of the obvious factors:
One. Has the judicial officer/Judge read the file? If they have then they would have been apprised of the facts and would not need to rely so hard on counsels’ summary of the facts. Things would go much, much faster. I would hope that the issues or lack of would have become vaguely apparent by them. Sadly it is not a common practice amongst Registrars or Judges to be familiar with the facts or the issues of law involved. So I would tend to factor in appraising them of the material facts of the case before moving into my submissions.
Two. Just how firm a grasp does the judicial officer/Judge have of the areas of law or authorities cited before them? A Judge who has a firm grasp of the applicable law does not need to be apprised of the law. A citation of a case would suffice because he would know it. An excellent example of such a Judge is Dato’ Gopal Sri Ram JCA. Time is not wasted explaining the law. Sadly it is not common for Registrars or Judges to have a firm grasp of either. So I would usually factor in time for explaining the facts of the authorities, the proposition of law that it decided and why it applies to the present case.
Three. How intelligent and experienced is the judicial officer or Judge? Just as not all lawyers are equal, neither are Judges. There are some irredeemably stupid ones on the Bench, but some terribly bright ones too. Stupider and ignorant judges slow down a hearing considerably because they are not able to grasp even the simplest concepts. A clever and experienced one speeds things up to the point it becomes a pleasure. The current Kuala Lumpur High Court of the Appellate and Special Powers Division has excellent examples of both ends of the spectrum. Half an hour of seeing the Judges in their respective courts at work will give you a terrifying clear example of who should be there and who shouldn’t.
Four. Will this judicial officer or Judge ask questions and probe further into our submissions? If the Judge asks questions and directs the course of submissions, then any estimation of time is useless because the course of submissions are out of our hands. Of course, things would move swiftly before a Judge that asks nothing. I am tempted to assert that any time estimates by counsel should be disregarded if a Judge takes substantial control of the course of submissions.
Five. Is it strategically advantageous to answer your opponent’s case during the course of your initial submissions, or just allow them to raise it during their submission and take them out on reply? This is a judgment call and depends very much on who is listening to the case. Some judicial officers or Judges react better to the former sometimes and you can persuade them to your side before the other side has submitted. This may weaken the potency of the other side’s submissions when it eventually is submitted.
Six. How many cases does the judicial officer or Judge have before or after yours? Are they heavy applications or hearings? If there were a few heavy applications or hearings before my hearing, the Judge would be mentally tired and in some cases irritable. In these cases, I would try to shorten and lighten my submissions so it is more easier digested/accepted. And this can only be factored in once my case has been called up.
Seven. Sometimes, it depends on the submission by the Respondent counsel. They may raise a host of issues in their submission that I may have to spend considerable time clearing misunderstandings of the facts, of the law and whatever else the Respondent counsel has improperly submitted on and then putting forward my reply submissions.
All the above factors, and maybe even more, have to be reduced to one all absolute encompassing exact number that would reflect these multitude of factors it is supposed to account for. This is understandably impossible and bound to meet with failure and mutual recriminations from both the Bench and the Bar. What often happens is that Judges and judicial officers are left with the mistaken impression that lawyers lie about the length they require to submit (okay, I admit some do lie) and lawyers feel the Judges to be unfair and insensitive to their predicament.
What can be done? Some honesty on both sides, a willingness to understand each other and communication about the issues. Addressing this issue I feel would be a positive step towards the long and winding road of improving relations between the Bar and the Bench especially where oral submissions are concerned.
In my response I take each point you have made and provide a brief comment of my own below.
How long will you take, counsel?
Like an exam essay question, it appears deceivingly simple at first. But when you attempt to actually answer the question, you will be confronted by its complexity; especially if you want to answer the question honestly. Do not be like those arseholes who say ‘five minutes’ and then unapologetically spend the next 3 hours submitting just their case.
Ans: There is a skill a good lawyer is required to acquire during the course of their career. Time management, strategic thinking and planning and a thorough understanding of all the facts and the law applicable to a matter at hand.
To comprehend the complexity, let’s take a simple case. I’m thinking of an Order 14 hearing with maybe about three or four substantial affidavits (like 4 200-250 page volumers), with maybe 2 serious issues to be argued out, with maybe a shade in the Plaintiff’s favour on the application. These are some of the obvious factors:
Ans: Affidavits should be brief, as close to the points it seeks to support as possible and not an extension of the Encyclopedia Britannica. If it is a 200 page document one would have to assume it contains annexures in the form of diagrams and maps or medical and other specialist reports to go with it.
As a general rule, an affidavit is kept to its barest minimum is to avoid an examination of the statements in it that may unearth what we may not want unearthed that may go against our clients in the first place.
A good rule in litigation is this: Do not plead more than you have to, lest you are called to defend that which you may not be able or willing to. And the logic behind that statement is universally accepted.
After a cursory read through the ‘ statutory declaration’ by Bala the security guard to the now acquitted Baginda Razak, a document ably assisted by his lawyer, one wonders what a less experienced lawyer in a case without the profile of the Baginda/ Altantuya matter would have produced.
Well written and thoughtfully crafted, an Affidavit like the summary of a case may be given to the judge to ‘read’. If no objection to its substantive content is raised to an extent an amendment is required it will be entered into evidence or “read”. The judge would have had the pleasure or the benefit of having then independently read the document without having to struggle through the embarrassment of pronouncement of difficult words and other distractions.
Keep it brief and keep it to the point as far as is practicably possible.
One. Has the judicial officer/judge read the file? If they have then they would have been appraised of the facts and would not need to rely so hard on counsels summary of the facts. Things would go much, much faster. I would hope that the issues or lack of would have become vaguely apparent by them. Sadly it is not a common practise amongst Registrars or Judges to be familiar with the facts or the issues of law involved. So I would tend to factor in apprising them of the material facts of the case before moving into my submissions.
Ans: My opening remarks and comments addresses this particular issue. The alternative to this is to get some elocution lessons and make an impressive presentation to get the attention of the judge. They must be drawn to your presentation. It is a fundamental rule to good litigation. They have a large case load. One larger often than your own and more complex to deal with. Lighten their load and you will draw them onside.
Judicial officers need to hear the material facts and submissions from you directly as the ‘pleader or advocate’. They may have seen or read the material. But in order that it be admitted into evidence on the record, it is your call to put it before them whether they are presumed to be familiar with the material or not. Things could have changed. A client may wish to alter a plea or fact which they may not be aware of. It changes the complexion of the proceedings as soon as that happens. It is not up to them to second guess on a static document before them. The dynamics of that document is your job to bring into life compete with changes that may have occurred.
The other fundamental difference is this. A litigation lawyer is compensated from the quantity and perhaps also the quality of his workload. A judicial officer is on a fixed remuneration package regardless of the volume of his workload. It’s a human driver.
Two. Just how firm a grasp does the judicial officer/Judge have of the areas of law or authorities cited before them? A Judge who has a firm grasp of the applicable law does not need to be apprised of the law. A citation of a case would suffice because he would know it. An excellent example of such a Judge is Dato’ Gopal Sri Ram JCA. Time is not wasted explaining the law. Sadly it is not common for Registrars or Judges to have a firm grasp of either. So I would usually factor in time for explaining the facts of the authorities, the proposition of law that it decided and why it applies to the present case.
Ans: This is a dangerous assumption to make. Any Judge giving the impression he is fully appraised of the law is being presumptious. The court is made up of you, the judges and other officers of the court, all of whom are there to assist each other with matters of the law in dispensing justice at the end of the day.
Judges must hear arguments that are novel. Even where similar facts in similar matters relating to a particular aspect of a particular law are concerned, a lawyer may have a different approach or different take to it. Again dynamic versus static established precedents is always preferred and should be the rule of the courts. Novelty arguments within reason should also be entertained providing they make sense. Without this approach, we may as well be without judges or advocates.
A citation of a case alone is not sufficient if one is making a point on the reasons for judgement and attempting to sway the court to one’s line of thinking. A full reading of the relevant passage complete with any legal commentary in later cases an cases from other influential authorities that could influence your desired outcome is more important than the citing of a particular case.
Three. How intelligent and experienced is the judicial officer or Judge? Just as not all lawyers are equal, neither are Judges. There are some irreedemably stupid ones on the bench, but some terribly bright ones too. Stupider and ignorant judges slow down a hearing considerably because they are not able to grasp even the simplest concepts. A clever and experienced one speeds things up to the point it becomes a pleasure. The current Kuala Lumpur High Courts of the Appellate and Special Powers Division has excellent examples of both ends of the spectrum. Half an hour of seeing the Judges in their respective courts at work will give you a terrifying clear example of who should be there and who shouldn’t.
Ans: This is a personal and very subjective judgement. Again, you should be able to demonstrate your mettle and your own legal prowess by swaying the court to your arguments instead of away from it. At the end of the day the legal system of common law countries recognizes the fallibility of human nature and judges are human. It is for this reason that we have appellate jurisdictions to redress, correct and review the decisions of judges and inferior courts.
Judges who act in haste and move forward are not always people who are intelligent. Impulsive and impatient maybe but certainly not intelligent. Such conduct in itself, whilst appearing to be the work of a well informed genius is seen in a different light by others. Arrogance, self righteousness and perhaps even an intolerance and bias could be another perspective which in itself could afford grounds for an appeal where particular facts or issues would have been denied a proper and uninterrupted airing.
A good judge will work with two sides. Not impose himself to direct the trajectory of a matter. Perhaps a good judge will assist in giving a good argument traction by his inquiry into pertinent aspects of it to bring clarity to the argument and the issues it deals with.
Again these matters are subjective.
It is up to the lawyer to convince the court and study the direction it is taking in his matter then to sway it to his course.
It is this subjectivity that renders courts the subject of ‘judge shopping’. This is a highly contentious subject which brings disharmony to the court room and opens the way for corruption.
Four. Will this judicial officer or Judge ask questions and probe further into our submissions? If the Judge asks questions and directs the course of submissions, then any estimation of time is useless because the course of submissions are out of our hands. Of course, things would move swiftly before a Judge that asks nothing. I am tempted to assert that any time estimates by counsel should be disregaded if a Judge that takes substantial control of the course of submissions.
Ans: You have hit on a highly controversial and contentious subject of judicial intervention. It takes a good practitioner out of his orbit immediately because it distracts from his focus which is the submission.
Unless there is good reason to do so judges should not intervene.
In the west it is common practice for judges to make that cursory and customary intervention not at the end of the sentence or statement but in between. They are often found nit picking and being facetious. Testing a lawyer to the extent it becomes a test of the lawyer rather than the facts, issues and law of his case.
A lawyer should be allowed to complete his presentation complete with faults, failings and bad delivery. It is only then that a complete picture is obtained and the right to criticize arises. Otherwise it is an exercise in egotism, power setting and bullying. Apart from which it is plainly bad manners.
I live and work in Australia. I am older than many of you. I speak and I write reasonably well. But my delivery is always a little more than average as I plan how to deliver my material and research my work.
On one occasion at least I did tell the bench respectfully that I intended to and should be allowed to read from my submission without interruption from the bench. I was at pains to state that there was nothing in my brief submission which could not be dealt with after it was read, then understood completely and then taken in context before an explanation would be necessary.
To ask for an explanation in between would be to deny the court the full meaning and substance of my delivery.
There was a deafening silence from all present. The judge said nothing. The other lawyers present all of whom had this cap in hand mentality sat frozen waiting for an uproar.
The response was simply this “okay Mr…… you may read your entire material, I already have a copy handed up which I will follow from. Is it the same material?” “Yes your honour came my reply”.
On another occasion a young woman lawyer on my opposite in another hearing was being interrupted. I could see she was having difficulty with the interruptions and loosing her train of thought.
I stood up and asked respectfully of the judge if the interruptions and questioning could wait till the material had been fully read. I explained the reason and said “I could not understand the jist of the material with the interruptions as they were confusing the material as it was intended and therefore interfere with my observations and any objections I may seek to make.
The judge starred at me briefly and allowed the woman to continue. The point is this. Unless a lawyer is so weak he relies on mistakes of others to win his case, lawyers should also stand up for each other in courts as they do for judges and their clients. It provides for a more just outcome and better court practices.
Five. Is it strategically advantageous to answer your opponents case during the course of your initial submissions, or just allow them to raise it during their submission and take them out on reply? This is a judgment call and depends very much on whom is listening to the case.
Some judicial officers or Judges react better to the former sometimes and you can persuade them to your side before the other side has submitted. This may weaken the potency of the other side’s submissions when it eventually is submitted.
Ans: Good point but presentation is critical. A smart judge will cut you down where you make this a critical part of your submission pre judging what the other party will rely on or say. What has to be done is to weave the other sides argument (it requires a skill) into your material. That’s more subtle and believable.
Six. How many cases does the judicial officer or Judge have before or after yours? Are they heavy applications or hearings? If there were a few heavy applications or hearings before my hearing, the Judge would be mentally tired and in some cases irritable. In these cases, I would try to shorten and lighten my submissions so it is more easier digested/accepted. And this can only be factored in once my case has been called up.
Ans: This is an administrative issue and should be taken up by the Bar association with the appropriate administrative officer whom I believe would be the Attorney General.
Seven. Sometimes, it depends on the submission by the Respondent counsel. They may raise a host of issues in their submission that I may have to spend considerable time clearing misunderstandings of the facts, of the law and whatever else the Respondent counsel has improperly submitted on and then putting forward my reply submissions.
All the above factors, and maybe even more, have to be reduced to one all absolute encompassing exact number that would reflect these multitude of factors it is supposed to account for. This is understandably impossible and bound to meet with failure and mutual recriminations from both the Bench and the Bar. What often happens is that Judges and judicial officers are left with the mistaken impression that lawyers lie about the length they require to submit (okay, I admit some do lie) and lawyers feel the Judges to be unfair and insensitive to their predicament.
What can be done? Some honesty on both sides, a willingness to understand each other and communication about the issues. Addressing this issue I feel would be a positive step towards the long and winding road of improving relations between the Bar and the Bench especially where oral submissions are concerned.
Ans :Again I refer to my previous comments in this regard.
Gopal Raj Kumar
Dear Fahri,
If I have a chance, I would appoint you sit as Chief Justice/Lord President (if only they make up their minds —– its designation again… hehehe)..
Respectfully Yours,
Janetlee
Ya, lah. But to what good? Everyone wants written submissions nowadays. No fun whatsoever.
Time, being used to measure the interval between events, surely cannot be possessed in the way you suggest in your opening sentence.