How long will you take, counsel?

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.

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Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it for him. He has little taste in writing about himself in third person. He feels weird doing it. But the part he finds most tedious is having to pad up the lack of his accomplishments, or share some interesting facts about his rather uneventful life, as if there were some who found that oh-so-interesting; as if he were some famous person, like Michael Jackson. When he writes these biographies, the thought, 'Wei, Jangan Perasaan- ah!' lights up in his head. So he usually just lists what he got involved with, positions he held and blah, blah. But this time. Right here. Right this very moment. Uhuh. This one. This one right here. He's finally telling it like it is.

Posted on 11 March 2009. You can follow any responses to this entry through the RSS 2.0.

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