A personal sketch of what a pleasant hearing could comprise of. Feel free to tell what you think of what you think it could be. And the importance of the the court providing an explanation of its decision.
Ideally, of course, you would like the argument to go either way. The chances of success of the case and the issues in argument should be so finely balanced like that of a feather standing vertically. Then it would be more telling who has the stronger gust of advocacy. The success would not be coloured by the inherent favourableness to a given set of facts or the state of law. That is where fun is to be had.
What excitement is there in a sure win or sure lose case? You expect it, anyway. For example, most credit card and hire purchase agreements debt claims are sure wins. It lacks the tension and excitement of not knowing, which is the fun part. I’m not saying this area is not important, just not much fun. At all.
And of course, there is your learned opponent for the other side. You would want him to be formidable, fair and experienced. Never mind if he trashes you at the end of it. What you should learn from that is how he did it and what you should have done. Shake his hand. Bugger off. Then apply your learning to your next case.
You are, of course, fully prepared. Inside, out, upside, down. Bundle of documents or records all marked out, highlighted and tabbed. Your notes scribbled in the pages of your copy of the bundle/records. Well versed with you and your opponent’s arguments in equal measure. You have the legal side issues at your fingertips. You know their submissions well. You have an idea how some of the judges may react and worked out your plan of action or replies. It would be helpful though if you knew whom your opponent was. And you have had a run through their bundle of authorities/documents.
The judge or panel of judges are somewhat familiar with the case and have a grasp of the real issues. They are courteous, considerate, fair and tell counsels what the bench is thinking or going. The latter is especially helpful to counsels to keep focused and spend their energies addressing the issues of the bench’s concern. If a judge is alive to the case and its issues, they can cut down a lot of time by focusing on the two or three issues that the case ultimately boils down to. Sometimes a quiet judge who takes no control of the proceedings causes a hearing to lengthen unnecessarily.
There was one morning when all this came together throughout a whole morning session at the Court of Appeal earlier this year. I wanted to applaud the judges’ performance at the break because it reminded me again for a brief moment that judging when done properly is truly a performance art – and a joy to behold when done properly and earnestly.
I still remember that masterful performance – the chairing judge kicked off the hearing by quickly sketching the case then summed up the issues briefly to the agreement of both counsel. The chairing judge then invited counsel to submit on those issues that went to the heart of the case. It often is not more than two or three at most. Both counsels were given adequate space and time to develop their argument. The judges that morning were alive to the proceedings. They were unobtrusive and yet somehow managed to reasonably reign the arguments with appropriate and intelligent interjections. When the issues demanded it, they appeared to actually grapple with the issues instead of looking for an easy way out. And gave their grounds – one or two reasons – for their decisions in all the cases I watched that day.
That last bit – the reasons for the decision – is especially important for an acceptable conclusion to the hearing. This is because the court’s explanation serves as closure for the parties involved who has to live with it.
It is sad that some judges forget that the most important parties to the hearing are not the ones before them. They are in the gallery sometimes or in their office the waiting. The person that wants to hear those reasons most is the losing party. They most need to understand why they lost because they have to live with their version of reality denied to them. They want and need to try and make sense of it. The winner always knew he was going to win, so why bother with the details? The court therefore does an injustice when it fails to explain its decision. An absence of sound reasons for a decision is also a fertile source for ill-founded rumours.
At the end of the day, as a litigator, it should not matter a whole lot whether you win or lose – because somebody has to. Litigation is a zero sum game. What is important out of the hearing is that you managed to put your client’s case as best as you could, that the judges understood the arguments and came to a just and reasonable decision which is explained.
Fahri Azzat has been in the field of litigation practise (of all sorts) since he began practise with the odd bits of corporate and conveyancing work here and there. He should have moved in to the corporate realm by now but he enjoys litigation in comparison despite all the crap that he has to put up with. Now he thinks that if he moves out of litigation it would probably be to an entirely different job – like selling nasi lemak or opening up a gerai downstairs from the LoyarBurok Rakyat Centre and call it LoyarBurger.