My first ever hearing and trial

Pupils these days seem to have little to no expectations of being called upon to do hearings or trials during their pupilage. Even if they were offered such an opportunity, they are likely to decline it because they think they are not ready. My sense of it is the common pupil appears content to busy himself at the hem of his Master’s garments stroking its tassels instead of convincing the Master he should be robed sooner and not later; I am referring to the work, not the attire.

These pupils see their role as limited to learning while providing support to their Master or other lawyers in the firm instead of doing the cases themselves. They are content for their participation to be limited to mentions, case managements, preparing draft applications or submissions, carrying bags, binding documents or authorities. There is no sense of impatience about being on their hind legs. Most seem content to associate themselves with high net worth disputes or contracts to decorate their CV or social media profiles. The tragedy is how few possess ambitions beyond that station for their pupilage, or even in practice.

Often, when I tell a pupil they will conduct an application hearing or even part of a trial, a look of panic and anxiety flashes across their face quickly followed by a clumsy explanation that they should not do it because they lack the relevant experience or knowledge. I find this attitude baffling because when I pupiled in my father’s firm in 1998-1999, a goal of mine was to impress my boss enough that he trusted me to conduct a hearing or a trial before my call to the Bar.

Whether I won or lost was a separate matter. That I was tasked to handle such a matter whilst a pupil was enough for me. I somehow got it in my head at the time that such an accomplishment would be an impressive feather in my bum in building my legal peafowl tail and something to strive for. And if I am candid about it, I had dreams of winning a David v Goliath fight; I wanted to win against a full grown lawyer whilst I was a mere pupil.

Now just because my father was the senior partner of the firm was no guarantee I would get to work on such cases. Although my father’s firm was nepotistic in orientation, merit still determined the quality and type of work assigned to us by the boss, Izzat, who was in charge of the firm’s day to day management. Back then, if Izzat thought you could not do the work, you would not get the work. It was that simple. It is the same logic I apply to my firm these days: be worried if you do not get work, not if you get work. I had to make a case out to the boss that I was ready for it.

And we did not make our case by oral advocacy with the boss; we proved it by deed: by handing in quality work to the boss timeously, consistently and thoughtfully, by taking the initiative to have something ready before the boss asked for it, and generally making ourselves indispensable to whatever it is the Master is working on. In doing that, we built up our competency and credibility with our Master to the point they trusted us not simply to do a piece of work, but with the work itself.

I didn’t know it at the time but this was the kind of thinking ahead I had that is encapsulated in a pithy saying (I got it from Yap Siew Yee’s LinkedIn Post; she’s a lawyer too and writes thoughtful short posts about her legal experience which I enjoy; so do check her out), which I have stolen and revised as follows:

When you are a law student, think like a pupil.

When you are a pupil, think like a lawyer.

When you are a lawyer, think like a partner.

When you are a partner, think like a managing partner.

When you are the managing partner, think like an entrepreneur, but not entirely like one.

When you are an entrepreneur but not entirely like one, think like an enlightened contributing member of the Bar.

When you’re an enlightened contributing member of the Bar, don’t be a planet Uranus.

Those pithy paragraphs are about thinking beyond our current station in life and to be constantly striving for the next stage of our developmental trajectory. That is important to give us our developmental trajectory and psychology a sense of momentum and progression. To think only within our current station of life stagnates and weighs down our trajectory and development. We progress in the doing not with wishful thinking.

When I compare my attitude then with what seems to be the prevalent thinking today, I think it amusing and a little tragic. Amusing because the present common pupil is a fearful anxious bundle of nerves instead of a budding warrior that does not count fear or favour as his or her close and constant companions. On the contrary, there is as much fear as there are favours. Pupils fear taking responsibility for cases and it is regrettably common for them to ask favours from friends about legal matters they are supposed to comprehend by reading statutes, cases and practitioner’s guides.

Tragic because I see this notion and reticence extend into a fresh lawyer’s early years of practice: the idea they should only conduct a case after obtaining training and experience. Although some learning and training is helpful, understand that we will never be perfectly ready to take on a case. There will always be parts of a case we did not expect or could not know at the start of the case.

But these can be overcome as the case progresses. Each case is a learning experience as much as it is a performance of execution. The longer we put ourselves off from taking responsibility for a case, the longer we postpone our learning and growth. That postponement breeds fear, a lack of confidence, and anxiety in taking on a case. Then voila, we have a well constructed psychological negative feedback loop that inhibits our growth.

At the end of the day, the only way to get better at doing cases is by doing cases. It is not only by studying it, by training for it, by observing it next to your senior, and by hearing senior lawyers tell war stories about it, that you will acquire that ability. All that is useful but none of them come close to getting up on your feet or, nowadays, sitting on your bum in front of a screen, and doing the case. This is an amalgamation of what I usually tell my pupils and interns:

“Standing up and doing the case is a vastly different thing from sitting next to the person doing the case and doing the case. Don’t be fooled by the closeness of your proximity. The one standing up is in on a different planet from the one sitting down. You will never learn what it is like to stand up by sitting down. You want to be getting on your feet [or seated in front of a screen] as quickly as possible.”

For myself, I did the work given as well as I could, bade my time and made sure to leave a strong impression with my boss. That was how I proved to my boss I was competent enough to take on a hearing. I was not shy about it. I reminded him every now and again how if he had a simple contested application he did not want to do, he was most welcome to give it to me. It did not matter whether it was an application with no hope of success, I wanted it. Here’s a tip: be careful for what you wish for, and if at first you succeed, remember, defeat is always lurking around the corner.

Sometime in my fourth or fifth month of pupilage, my hearing day in court arrived. I was assigned a case in which our Malaysian client was sued for a tortious claim by a Singaporean citizen. After considering the case, I suggested to my boss we advise the client to file an application for security for costs against the Singaporean Plaintiff after filing our defence.

An application for security for costs is an application usually filed by a local defendant against a foreign plaintiff. Costs are what the court orders a losing party to pay a winning party. The purpose of the application is to secure costs that may be payable to the defendant by the foreign plaintiff if it loses its case. A security for cost order ensures a foreign plaintiff cannot run away from paying the defendant’s costs if they lose their claim. In such a situation, the court may order the foreign plaintiff to pay a sum of money as ‘security for costs’ and disallow the foreign plaintiff from proceeding with its case until the security is settled.

A security for cost application is also a strategic tool. It can be used to dissuade a foreign plaintiff from pursuing their claim. If security for costs is ordered against a foreign plaintiff they have to deposit a sum of money, often significant, before they can proceed with their case. A recent example of this can be seen in the recent High Court decision of Wei Her Pte Ltd v Ooi Teik Seng & Anor [2020] 1 LNS 101 where Justice Mohd Radzi Harun ordered the foreign Plaintiff to deposit security for cost of RM 80,000 before it could proceed with its claim. Such an application may be defeated if a foreign plaintiff can show significant financial, assets, or physical presence in Malaysia or when the court thinks ordering security for costs would be oppressive to the Plaintiff’s claim.

My boss liked the idea and agreed. Even better, he left the entire application to me. I need only check with him if I was unsure about something. I reveled in the freedom given to me. I worked on the application as if it was the only case I had and my life depended on it. I read every local case (there were not many at the time) relating to Order 23 r 1(1)(a) Rules of the High Court 1980. That was the provision one used to apply for security for costs order against a foreign plaintiff. I read up English and Singapore authorities; prepared the application and all the affidavits as well as the submissions. Best of all I was arguing it alone before the Senior Assistant Registrar! My wish also came true; I was pitched against a four to five year old lawyer, which was just nice; not junior to me and not too senior as to inspire dread.

The hearing itself was uneventful. We submitted our written submissions and oral submission on the hearing day. Being my first hearing, I read out my submission as I did later in my first few hearings with my heart pounding away in my chest. I would be fooling you if I said I was calm, cool and collected. If I did give that impression, that’s a pat on the back for me. But inside I was a boiling, seething cauldron of anxiousness and nervousness. The Registrar reserved her decision to another date and adjourned the hearing.

To my surprise and elation, we won the application.

I was proud and pleased with that decision. My first win with my first ever application. I felt confident and clever and had a bit of a swagger. After all, I, a mere pupil, won against a full on five year old lawyer! I flew high for a few weeks.

But as all good things, they must come to an end, and soon. And give way to the inevitable difficult horrible things.

A month or so later, my boss, impressed with my win, assigned me a trial that was coming up. It was a ‘running down’ matter i.e. a road accident claim. At the time we acted for a bus company. I had my fair share of running down cases. So I know how to stare at sketch plans and play with toy cars in court.

It was a claim in the Magistrates court. The claim for damage to our client’s bus due to a road accident on the Federal highway. The office file, when I received it, was old, tattered and had passed down several reluctant and casual hands. It was three or four years old. After years of waiting, the case was up for trial. Back then there were no witness statements, etc. Just a bundle of pleadings and bundle of documents and we were off to the races. I miss the simplicity of those days.

I interviewed the driver on the morning of the trial. We had a statement in our file but we needed to pin down his narrative. Outside court, before trial began, he talked a good game. He boasted how careful he was. He declaimed the accident was all the defendant driver’s fault. The more he talked and resolute he sounded, the more confident I grew about the prospects of our claim. When the case was called up I took him through his evidence and sat down pleased with myself. This trial thing doesn’t seem so difficult, I thought to myself.

I have now learned that when I have such thoughts, I should not utter them or think them. I should immediately annihilate such thoughts from existence. They bring ill fortune.

The defendant’s lawyer stood up. I didn’t know it then but that marked the end of my case. He was an Indian ten year old lawyer, the kind that had a natural aggression built into his cross-examination that unnerved my big-talking-in-truth-timid witness. It was no help to me he was also a cross-examiner of some competence.

He dismantled my witness. No, that’s too kind as to be imprecise. Actually, he destroyed him.

He damned my witness to either complete forgetfulness or being a thorough liar, neither of which was useful to us. So devastating was his cross and so willing a victim was my witness I was sent into facial and bodily convulsions I advise my pupils and lawyers to avoid when a case is going badly. I ran the gamut of classics such as the face-palm-with-eye-massage gesture, the doubling-over-because-of-a-sudden-sharp-stomach-ache manoeuvre, the I-hit-my-knee-hard-on-a-table-leg-underneath look, the I-can’t-look-this-is-too-scary look away and, of course, the someone-just-smashed-me-in-the-crotch-eyes-tightly-shut pout. You could not accuse me of being opaque about how I felt about my case. My face was on fire for most of the cross.

I am certain the Magistrate noticed my convulsions. As the cross careened towards our fatal end, she stopped the defendant’s lawyer. At that point, if the defendant’s lawyer did not kill my witness in cross, I would have made sure of it after he stepped out of court. For all his fighting talk outside, he crumbled like a million year old fossil thrown at force against an austere looking concrete wall. I was in complete shock at how someone could say one thing and then do a complete about turn within an hour.

“Encik Fahri, it appears your witness is… saying many things. Would you like an adjournment to seek your client’s instructions?”

If you want to know what mercy in court looks like – that’s an example of it. If I could have, I would have climbed up to the Magistrate’s chair and kissed her feet and hands – bum pointing to the sky – out of gratitude; probably her cheeks too but that was because of her beauty, which I had suddenly just took notice of. A Mother Theresa in the form of a Saloma! She saw genuine suffering and took immediate action to alleviate it, and looked beautiful doing it.

“Puan Magistrate, I would be grateful for that. Thank you. Thank you.” Tears almost welled up in my eyes.

She turned to the defendant’s counsel. “Counsel, I don’t think you have any objection to that would you?” she asked so sweetly and yet so authoritatively, my heart melted. If she went on like that I might have fallen deeply and desperately in love with her then and there.

“None at all, Puan Magistrate. I just ask that the next trial date is fixed not too far away,” the defendant’s counsel replied benignly, if not sweetly, which took me by surprise. After how he tore up my witness, I did not think him capable of such delicacy.

“Encik Fahri? Would a month be enough for your client?”

“Yes, Puan. Thank you. Thank you, so much, Puan.”

“Very well. Come back in a month. We are adjourned for today.”

The moment we got out of the court room the bus driver got an earful from me. He offered no resistance, listened meekly and apologized profusely. He was scared in court. He didn’t know how to behave or talk. The room was cold and intimidating. The lawyer was fierce and scared him. So he just agreed.

It struck me then as I was fuming at his explanation that this legal practice thing was nothing like the movies or TV. On TV and in the movies, when you bring a witness they say what they are supposed to say, unless they are lying, and then victory was supposed to follow. But this, this was nothing like TV or the movies; this was the real deal. That was my first bite of the apple from the legal tree of knowledge.

As soon as I got back to the office I briefed my boss about the bus crash of a trial and apologized for how it went.

“Don’t be too hard on yourself. Their witness messed it up. All we can do is present the case. If their witness says something else in the box, what to do? You can try to repair in re, but there’s only so much you can do. Some of these fellas talk big outside of court. But when they get in. Kecut. Anyway, go write to client and explain why they have to withdraw their case.”

The client took our advice and withdrew the case.

And with that I achieved my goal of conducting a hearing and a trial during my pupilage.

Throughout my pupilage, although I was acutely aware of my status as a pupil and was happy to do pupil work, I saw myself as a lawyer-in-waiting-in-training and desired to do lawyer’s work if I deserved it.

Though I succeeded beyond my expectations for the application hearing, I crashed and burned spectacularly for the trial. Litigation, Law, and Life I soon came to learn are like that. We won’t win all the time, but we won’t lose all the time either. In practice as in life, we will suffer both losses and wins, the question is how we behave after our win or loss. That is when our true character reveals itself; and so too our client’s.

The important bit is not getting big headed with the wins and to remain humble and to learn from our losses. Practice is not just about winning or losing, but like a sport, the most important part is how we perform our part. If we do so with camaraderie, mutual respect, candidness and a desire to play the game within the rules provided, everybody wins; but if we do so otherwise, then it becomes a gladiatorial contest, in which there is a winner but everyone, including the law, end up bruised and battered.

Whatever the case, we must first reach beyond our present station; for if we do not, it becomes harder to find our way to the next station of our developmental trajectory.

One thought on “My first ever hearing and trial

  1. Well written, it tells ALL. It is of today’s junior lawyers, happy to be a typist but not an advocate.

    Like

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