Justice on a Coin Flip?

Lady Justice | Credit: http://www.flickr.com/photos/essjay

Lady Justice | Credit: http://www.flickr.com/photos/essjay

It is bad enough that lawyers get so much negative press these days; we now have the Chief Justice (CJ) mocking us as suggested in this news report. Originally a comment made on the lawyerstalk e-group, it is now reproduced and edited.

I am not sure what the CJ, a former practicing lawyer was trying to get at but surely this case of a lawyer with 93 cases a day is almost unheard of and is extremely rare. Yet the impact on the minds of the public is great enough to warrant some form of odium, distaste and ridicule for lawyers.

Quite the challenge for many honest-to-God lawyers who just want to put in a hard day’s work.

The CJ tries to take the “sting” away from his bloodthirsty quest for statistics and the “Key Performance Indicators”. It is very easy for the CJ, in his exalted position, to twist and dishonestly justify his reasoning to suit his desires. Play to the gallery, by all means and use a totally unreasonable example to boost one’s fledgling fortunes. Talk about scandalising the judiciary.

I know of many lawyers who are generally happy with the system, how it functions and serves the public. At the end of the day, the public interest is paramount. Most of these, as life often dictates, sometimes find themselves in a spot of bother not of their own doing. They simply have two or three cases for the day. There is nothing wrong nor is it illegal to have two or three cases a day!

The truth of the matter is that almost all the lawyers I have spoken to, make it a point to try and accommodate the courts by adjourning their matters to the afternoon, next day or at the very latest, the following week. They do their best to balance thei diaries, expectations of the courts and that of the public. A lot of respect and leeway is shown by these lawyers.

So my 13 million ringgit question is that why can’t the CJ highlight this and credit lawyers who do their best to work with and within the system?

Why only highlight the negative aspects of lawyering and in the process make lawyers look like villains? I know so many lawyers who make sacrifices just to please the client, judge and this system. The burden faced by lawyers is matched by none other than the glee on the face of the exalted ones when they announce how many cases have been summarily disposed. Of course it is carefully engineered to look as if justice was served. Cold, raw dish indeed.

The CJ has always basked in praise and often demands that lawyers praise him for his novelty in solving the back-log of cases. I will admit that he deserves some praise and recognition but that’s not the point. Praise must be earned and no praise will be gained by rubbishing all lawyers in one broad stroke.

The examples offered by the CJ are, to my mind, an insult. I have nothing against the CJ moving cases along quickly with his new system but it must be tempered with reason, common sense and logic. It cannot be to satisfy statistics. Making a system work requires all pistons to be firing equally, lest you want your machinery to stall. And stall it will soon, if you do not ensure all parts are working well.

Seeking Justice | Credit: http://www.flickr.com/photos/liz_lineback

Seeking Justice | Credit: http://www.flickr.com/photos/liz_lineback

All this talk by the CJ about KPIs and statistics remind me of the popular phrase “lies, damned lies and statistics” by Disraeli and Twain. It serves to highlight an attempt by one party to bolster its own weak position by quoting meaningless statistics and I can see the parallels in the CJ’s latest comment. The CJ then conveniently rationalizes the cost of such adjournments (13 million a year) to justify why lawyers should be taken to task for asking for adjournments.

Really? Thats just taking the piss at lawyers. Justice is now measured by ringgit and sen. Clap! Clap! Clap! Someone give the CJ a gold medal, please.

What is next? Banks offering personal loans so that you can embark of a journey of litigous joy?

What bothered me was the wanton accusation that lawyers use MCs to seek postponements and thereby sully the rest of us who do our best to comply and ensure that justice is served.

I wonder if the Bar Council (BC) will let its good compadre get away with this or will they issue a statement rebuking the CJ in very strong terms. I am all for a good Bar-Bench relationship as I feel it lays the foundation for good cooperation.

But all the same, I feel that the BC cannot let this one go and allow the CJ to make and get away with reckless statements. The BC should, in my view, defend the Bar and respond to the CJ.

Since the BC regularly issues Press Statements, I am sure they can do one more (for the road). The BC can use the example of many lawyers who do their best to accommodate the courts, clients, opponents selflessly and sometimes to their own detriment to counter that not all lawyers are what the CJ portrays. The BC must state that the courts should not sensationalise trivial issues so as to curry favour with the public and must at all times, remain impartial and circumspect.

Speaking of detriment, and slightly off the main issue at hand, I wonder if it is time that a study be commissioned to evaluate and assess the impact of the new “KPI” system on the health of the lawyers. Many lawyers have trials after trials, hearings after hearings either at the lower, higher or appellate courts on a regular basis. There is very little rest in between to sufficiently re-charge and take stock of the situation. I am sure it will take a toll on one’s health and mental well being.

How many of us come home feeling jaded and whacked to the core. How many of us lawyers last read a good book and enjoyed just idling in one’s own company. How many of us have fallen asleep just moments after reaching home and out of sheer exhaustion only to repeat the same cycle over and over again.

Considering that many firms are small (sole proprietors or small partnerships), one must not discount other factors like administration, keeping clients happy and managing one’s practice. I find it very frustrating and downright patronising to hear comments like “don’t take on too much work”, “farm your work out” and “don’t be greedy”, “specialize in lower or higher or appellate courts only”.

Who are the courts to tell us lawyers how to practice and what cases to take? It is most unfair of them to do so.

Perhaps the BC could also work with the Judiciary on a comprehensive practice direction that will spell out how and when adjournments are granted and how to deal with some judges’ quest to satisfy their KPIs. Perhaps this will go a long way in ensuring that no judge acts overzealously or makes arbitrary decisions under a false pretense.

Perhaps the BC should also be firmer when dealing with the Judiciary in such matters. I am not, for a moment, suggesting a revolution of sorts but in looking after lawyers’ concerns, the BC sometimes need to take a stronger stand. The BC must push its weight around the table and tell it like it is.

No need to mollycoddle the CJ and his merry band. It may sound unpleasant but the BC owes its members that much. I know the BC always tries its best but at the same time, I feel that the BC’s quiet engagement of the Judiciary only serves as fodder for the Judiciary to take advantage of the BC.

We can start by telling the CJ that his comments herein only tell half the story and is dishonest. The CJ should be above all impartial, objective and circumspect. At the same time, we must not allow ourselves to be bullied!

Otherwise, we all carry a 50 sen coin to court.

Heads, an order in terms for the Plaintiff. Tails, claim dismissed!

Dipendra Harshad Rai fits the LoyarBurok description to a T: self obsessed, constantly pontificating and always dressed in a jacket, he occasionally manages to string a few words sensibly together (like the article above). His only redeeming quality is that he is a firm supporter of the greatest team in English football – You’ll Never Walk Alone!

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Posted on 19 February 2011. You can follow any responses to this entry through the RSS 2.0.

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20 Responses to Justice on a Coin Flip?

  1. Justice is not depend on the coin flip. I disagree it.

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  5. Some mediaeval coins, called bracteates, were so thin they were struck on only one side.

  6. The way the KPI measures have been implemented is more for show than anything else. But what puzzles me is why the Bar has taken so long to take action in only recently passing a motion of no-confidence against the KPI introduced by the CJ as being not in the interests of justice and litigants? Are you sure that what the CJ boasts to the effect that because of the KPI measures the courts have been able to dispose many cases so that now there is no backlog? What is meant by disposal of a case? If an honest audit is carried out, I am certain that many of the cases said to have been disposed have not been genuinely disposed. Check out my blog at http://lifeasanordinarymalaysian.blogspot.com and search for the posts "Justice Is Not A Production Line", "Legal Fees Increase-What Is The Fuzz All About" and "Finally The Malaysian Bar Has Acted".

  7. Jack neo

    Bc too busy with politic..wake up from ur slumber

  8. Vincent Yap

    Where is the BC when we need them the most ??? Are we lawyers going to just sit around and take all these insults without responding with a balance view of the situation at hand ? Not only lawyers are making every efforts to adhere and comply with this KPI system, to the detriment of their personal health and welfare but even clients are finding it rather difficult to cope with the shorter interval of billings due to the now shorter or faster time period in completing a litigation matter in Court. Not to mention the escalated cost of litigation. The present system may seems to do very well on the surface based on KPI ratings but in many cases, it was at the expense of justice. Our judicial and justice system has now turned into an ATM system (an Automated Teller Machine system) where "numbers" is the priority rather than judicial wisdom and discretion. Are we humans or machines ? Is our judicial and justice system runs by humans or by machines ??? Nowadays, I am feeling more like a robot lawyer than a human lawyer…lol.

  9. Richard Wee

    Marcus,

    This is the ideal time if ever, to issue a press statement against the many incorrect & silly reports in the Star & the Sun; but BC has not done so.

    The issue of potential increment of fees; is the inevitable consequence of the current KPI system, but unfortunately the timing of the statement was bad.

    The CJ on the other hand seems hell bent to leave a legacy as the fastest CJ in town.

  10. Richard,

    The opinions/perceptions that the public has of this whole CJ-KPI-BC-lawyers issue will be shaped in the mainstream media, not behind closed doors. As you know Ric, I'm not a litigator, so my opinions of this are also shaped in some way by what I read in the media.

    I agree with you, the ideal solution would be for the CJ & BC to find a resolution face-to-face. However, it does not take a genius to see that the CJ is not interested in this.

    The only ones who are foolish enough to think that the BC's stand that they are doing something because they have attended god-knows-how-many meetings and "dialogues" is laudable are the BC themselves. Let's be honest, how many lawyers have said all along that the BC are being made to look like fools, and being strung along by the CJ?

    I don't see why it is too much to ask that the BC respond publicly. When a serious issue like this crops up, suddenly the BC is publicity-shy? Has the famed "press release machine" broken down? The BC must surely realise that this is the most pressing issue for the majority of lawyers. The continued inaction speaks volumes.

  11. Richard Wee

    To have a quick moving case in Court, is always welcomed. But to have the case moving on break neck speed & the entire process is focussed on speed only (& not Justice), is not right.

    The continued attack of our profession by people from the Press, suggest a short memory or ignorance on their part. They have completely and/or willfully ignored the fact that the Malaysian Bar has a self funded Legal Aid scheme for over 30 years. Thousands of lawyers have provided pro bono work at the Legal Aid Centre for the last 30 years.

    Also, the Country has forgotten that before March 8 2008 happened, 2000 lawyers took the risk and marched at Putrajaya, fed-up with what they saw in a video of a man who sounded and looked like he was organising a promotion.

    The Country forgot the amount of time the Malaysian Bar has lawyers who (outside the Legal Aid Centre) form their own network to defend the people. Groups like Loyarburok, Lawyers for Liberty, No White Flag, TANGKAP etc, all did work on voluntary basis and on pro bono.

    Dipen is spot on where he mentioned above that the CJ chose to refer to examples of lawyers who were found wanting; completely ignoring the thousands others who comply, adapt & adopt to his KPI system.

    If the CJ wish to be involved in a PR exercise, then join a PR company and not be a Judge. If the CJ only wishes to have things fast fast fast; then join the Formula One as a Manager. If the CJ is only keen to bad mouth the lawyers in papers, then join UMNO (opps, he already is part of UMNO).

    But if CJ wants to be CJ, then be dignified, and fight the Bar as a gentleman; face-to-face, not this coward attacks on the paper.

  12. Actually, Marcus, I don't blame the public. I do think however that such a senior journalist / columnist would have taken the trouble to think this through a bit more before writing his widely read column.

    As you say, it is a PR game, and there is no question that our Machiavellian Judiciary has had the upper hand thus far. It does look churlish of lawyers to complain about matters being disposed of faster, and when we say that justice is being compromised no one seems to be taking us seriously.

    Gunasegaram has done a very simplistic "market" comparison, and I must admit that for the sake of sensationalism my comment may also have reduced matters to simplistics as well. But there are many factors not considered.

    The inordinate haste in which matters are done must inevitably result in higher legal fees for each file. You cannot say that I must charge the same fee for something I had 6 months to do before, but must now do in 6 weeks.

    There is also an assumption that most lawyers charge each time they go to Court. Most of us in the trenches did not have clients who could afford that. More often that not you have a lump sum fee negotiated per file.

    Another basic premise is that we have time to take on more clients since our matters finish faster. But how does he know we will have new clients? Will all those clients we had to say no to, or whose files we had to give up because we had no time, going to come back to us in the future? Would you go back to a lawyer who had to give away your file to someone else previously (as the Judiciary is forcing us to do).

    Essentially, the judiciary is railroading these reforms through and if you were to go regularly to court, you will find that the mindset is now speed over all else.

    Or at least, stupid lawyer that I am, that is the impression I come away with. But hey, I don't understand either the market nor how a proper and efficient judiciary functions, apparently, so what do I know?

  13. BTW Dipendra, thanks for a very well-expressed opinion. I feel the following, in particular, resonate:

    "The examples offered by the CJ are, to my mind, an insult. I have nothing against the CJ moving cases along quickly with his new system but it must be tempered with reason, common sense and logic. It cannot be to satisfy statistics."

    "I wonder if the Bar Council (BC) will let its good compadre get away with this or will they issue a statement rebuking the CJ in very strong terms. I am all for a good Bar-Bench relationship as I feel it lays the foundation for good cooperation. But all the same, I feel that the BC cannot let this one go and allow the CJ to make and get away with reckless statements. The BC should, in my view, defend the Bar and respond to the CJ. Since the BC regularly issues Press Statements, I am sure they can do one more (for the road)."

    "Perhaps the BC should also be firmer when dealing with the Judiciary in such matters. I am not, for a moment, suggesting a revolution of sorts but in looking after lawyers’ concerns, the BC sometimes need to take a stronger stand. The BC must push its weight around the table and tell it like it is."

    "No need to mollycoddle the CJ and his merry band. It may sound unpleasant but the BC owes its members that much. I know the BC always tries its best but at the same time, I feel that the BC’s quiet engagement of the Judiciary only serves as fodder for the Judiciary to take advantage of the BC."

  14. The comments by the CJ were obviously intended to cast lawyers in the worst possible light. It is ridiculous, obviously, but hardly surprising. He is fighting a PR battle on this KPI issue, and fighting it pretty well. In the eyes of the public, he is the best ever, most efficient CJ, fighting to ensure that justice gets done swiftly.

    And on the other hand, we have the Bar Council. As it is, there is already a lot of unrest about the BC's lack of action on the issue. Added to that is the BC's penchant for issuing pointless press statements on issues which members don't deem to be as important. Seriously, what is going through the minds of our Bar Councillors?

    It is saddening to know, as a fact, that several members of the BC read forums like lawyerstalk, and can see the anger and frustration amongst lawyers. Yet they stay silent. Forget making official statements or taking the CJ to task — do these BC members even have an opinion on the matter? It's anyone's guess.

    And as for our President. Well, his statement about the 300-400% increase in fees is stupid in the extreme. All this while we have been waiting for the BC to speak up, and they come up with this. As I said earlier, the CJ is winning the PR battle, but the BC isn't really putting much of a fight, and rather seem to be playing into his hands. Surely there is some collective intelligence in there somewhere. Instead of making calls to ensure that they are voted in at elections, perhaps the BC should put some effort into solving this KPI issue once and for all.

    And yes, before some BC member comes up with a long list of "achievements" and "efforts" that the BC has been making in other areas, I have no doubt that some BC members work very hard. Lawyers know who they are, and what they do. To each of them, thank you. But the KPI matter is a serious one, THE serious one, and it is not unreasonable to hope and expect that the BC do more, much more, to address the issue.

    In his article in The Sun, P Gunasegaram criticises the BC and lawyers. I don't blame him. He also makes a passing mention of the fact that lawyers don't adhere to scale fees (presumably thinking of the SRO) — which is another issue the BC seems to have decided is not worth addressing any longer. Read his piece here: http://www.malaysianbar.org.my/legal/general_news… (I notice LoyarBurokker Shanmuga K has commented on that link. Come on Shan, you can't blame the public to have that perception of lawyers. The tone and timing of the BC President's statement was really just inviting criticism.)

    I would also refer readers to the LoyarBorak Parts 1 & 2 "How Relevant is the Bar Council?" https://www.loyarburok.com/the-system/talking-abou… and https://www.loyarburok.com/the-system/talking-abou… — has anything changed since then? No.

    Much has been said, and much will be said, but will the BC act?

    If you are a BC member and reading this, ask yourself how you can let this pass without comment? Don't give stupid excuses like "emails on lawyerstalk are not an appropriate forum" or "engaging in the comments section of LoyarBurok is not proper". If the BC as a whole does not want to act, fine. But at least, as individuals, have some personal pride and dignity to show that you care for something more than campaigning to be elected and playing your internal political games for personal "status".

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  16. shaikh saleem

    Oh yes, then we have an ex lawyer Federal Court judge and RCI committee member who has the gall to tell us, "merge or die?". He forgot that he was a sole proprietor for the longest time before joining the judiciary?

    The hypocrisy is astounding especially coming from ex Bar members…

  17. Dipendra

    Dear Mian Kuang,

    My fear is this: The current CJ will retire in the near future but he has set a "standard" that will be followed. Suppose his successor decides to "up the standard" and impose more initiatives? That would further make life difficult for lawyers. I hope the BC realises this and starts putting in place measures to influence major decisions by the Judiciary.

    All the best

    Dipendra

  18. Chen Mian Kuang

    I agree with you, Dipendra. Our BC president must rebut the CJ. I'm astonished that he has not done it by now.

    The KPI system has caused a lot of misery. The lawyers are not happy, a lot of judges and judicial officers are also not happy, nor are the clients happy. The only happy person is the CJ, who is able to boast of his statistics.

    Now we have the New Commercial Courts and New Civil Courts with their policy of finishing a case in 9 months come hell or high water. This 9 months deadline is not law; it is probably only the CJ's internal directive. However, it is more strongly enforced than a lot of constitutional rights.

    In all this rush and statistical euphoria, it must be asked – what was the quality of justice meted out?

  19. KL Bar Member

    perhaps if author could write like this for the Publication Committee which he lead at KL Bar.. would be better.. Election campaign I suppose?

  20. Azman Thaiyub Khan

    he has made several more comments in relation to this issue. see bernama news http://www.bernama.com/bernama/v5/newsindex.php?i
    and in berita harian http://www.bharian.com.my/bharian/articles/Kesrog