When I first started the practice of law as a pupil and right into my first year of practice, I wrote down my arguments in full and read it out at the hearing. Every time. Despite all I read, reduced to writing and remembered, I felt I could not do without my script. As long as my script was with me, I felt safe, comfortable and confident. It was a confidence issue; I dared not walk into a hearing without it.
I marveled at the pupils and lawyers that could stand up and start off into their submissions without glancing at something. How the heck did they do that? I wondered, script tightly gripped in white knuckled hand. I looked on in awe as they switched between issues, backtracked to answer a judge’s question and pick up their submission where they last left it. Will I ever be like that? I wondered.
I recognized the script was my transitional object. A transitional object, a concept developed by Donald Winnicott, a British psychoanalyst and pediatrician, is described as ‘a designation for any material object (typically something soft—a piece of cloth, say, or part of a plush toy) to which an infant attributes a special value and by means of which the child is able to make the necessary shift from the earliest oral relationship with the mother to genuine object-relationships.‘ An example of a transitional object is a teddy bear. The script was the legal equivalent of the teddy bear.
And like any 21 year old who still brought his teddy bear to hearings, I knew I had to stop bringing the damn bear for hearings, or at the very least, keep him out of sight. But it was difficult for me not to bring it, hold it, tweak it, review it again and repeat that process until the hearing began; only to read it aloud, the script that is, not the teddy bear. It was not advocacy. It was not persuasive. It was tedious and boring. But who cares right? I felt safe and confident even as I knew I sucked and had to step up.
That opportunity came in a summary judgment application I had to argue before a Senior Assistant Registrar (SAR) towards the end of my first year. Back then, the practice was a SAR, a High Court judge’s assistant, heard summary judgment applications that were in the multi-millions of ringgit. The rank of a SAR is the more or less the equivalent of a Magistrate, the lowest ranking judge in the Judiciary. Back then, a Magistrate could only listen to cases of up to a value of RM 25,000. If a Magistrate could only hear cases up to that amount, why should they be hearing multimillion ringgit claims as an SAR? Nowadays summary judgment applications are heard by a High Court Judge, which is as it should be.
The night before the hearing, I read the submissions in bed before I went to sleep. As often happened then, I woke up later than I should have. A water buffalo bath, a throw of clothes and a bout of reckless driving got me to the High Court, which was then located at Wisma Denmark on Jalan Ampang (now rebranded as Sunway Tower Office). I was just in time too. As soon as I arrived I saw the opposing lawyer that morning and we were called in.
We entered the room and sat in front of the SAR’s table. It had an additional ledge for us to place our papers for reference.
“Are both of you ready this morning?” asked the SAR.
“Yes, Tuan,” we replied in unison.
“This morning is summary judgment kan?” he asked, as we set ourselves up.
“Yes, Tuan. It’s an order 14,” I replied as I reached to my left into my bag. I dug out and put my cause papers in front of me. I quickly sifted through them to see if all of it was there. It was save, of course, for the script. Oh dear, I thought. I reached down and felt about the bag while looking at the SAR. It was empty! Immediately, I felt my heartbeat kick up its pace. I quickly turned to look into the bag. Empty. I made to check the bag in futility. Where the hell was it? I checked every compartment in the damn bag. Twice. I felt a headache coming on.
For a moment, I completely forgot about the SAR, my opponent and the hearing. I just wanted to find that damn bear. I only realized how oblivious I was when I looked up after my futile search and saw the SAR looking at me, a touch amused.
“Is everything okay, Encik Fahri?” the SAR asked.
I didn’t know how to answer him. I felt it would be incredibly lame if I told him I could not go on because I left my teddy bear at home. But I also felt I could not have done the hearing without my teddy bear. I tried to recall what I read and immediately drew a blank. I knew it was at the back in my head somewhere but it all felt out of reach.
‘I … I … uhm,’ I said before I suddenly heard myself say, ‘No problem, Tuan. I’m sorry for the interruption. Let’s proceed.’
I pause to observe that the last thing I said was one of those moments that makes me believe I share my mind and body with another fella who takes over me in difficult situations and does what I myself would not otherwise do. I call him the other fella. I am pretty sure if it were left to me, I would have applied for an adjournment; after all, my teddy bear was at home.
‘Since this is an order 14 and the plaintiff’s papers are in order, the defendant will start first,” he said to my astonishment. What rude luck is this? I thought. It looks like I had time to reenact my submission on the spot! But I thought that approach strange because from my limited experience then the plaintiff always started in an Order 14 hearing.
I did not know it then but the SAR was correct. I later came across a few judges that practiced that approach, but they were decidedly in the minority. I later appreciated it was the correct approach because a properly constituted application is a prima facie case, which shifts the burden to the defendant, who then has to show the plaintiff’s claim contained disputes of facts or a defence to the claim, to avoid the court entering judgment in the plaintiff’s favour.
But at that moment, I did not care. All I saw was an opportunity to recreate my submission, on the spot, by hand. I whipped out my pen. I followed the hearing with one ear. As soon as I heard my opponent start his submission I got down to writing. As long as I heard some noise, it was good. After a while, I heard my opponent stop and heard the SAR say, “I think we do it like this. Why don’t you list out what your defences and triable issues are first, then you deal with them?”
I dove into my submission again, writing furiously. I thought my opponent would be kept for a while because as I recalled he raised four or five issues. But before I knew it, I heard my opponent say, “… and that’s all I have to submit, Tuan. Does Tuan require any clarification?”
“No, thank you. Ah, Encik Fahri? Your reply?”
I had not yet finished my impromptu script. I was probably a third through it. Not that it mattered, when I write fast, I scribble. When I scribble, I cannot read what I scribbled. So there I had before me a third finished undecipherable script in my own hand. It was as if I stabbed myself. If I were my own worst enemy, I could not have done better. I wanted to sink into a hole and disappear.
But then something happened, the last thing I remember was a deep breath. The next moment, I felt as if I was behind a glass wall behind my eyes watching myself and the proceedings. I couldn’t do anything with my body except watch. I felt strapped into a Malaysian rollercoaster that just opened and the operator gave no guarantee I would finish the ride alive.
The other fella had taken over.
I heard myself responding affirmatively to the SAR. I heard myself say sensible words, which weaved into coherent arguments, which drew easily from what I thought I had forgotten. I knew where to reach for what I had to show. I quickly and confidently arrived at the relevant pages and paragraphs. I wanted to applaud myself but couldn’t. And then it was over. It was only when I heard the SAR say, “Thank you. I need time to consider your submissions, so what are your free dates for June?” that I snapped back into control over my body, the confidence I held quickly fading in the other fella’s absence.
Although I don’t think it was good advocacy, I was happy with myself. It was a breakthrough. It was a start at giving me confidence that I could get by without a script. And most importantly, I didn’t look like an idiot without it before the SAR. I chided myself at being so cowardly as to entertain an adjournment earlier.
From that hearing on, although I brought the script along, I stopped reading from it. I would rely on it less and less at it until I would only glance at it from time to time like a man with a full belly considering which dessert to eat, if he decided to have dessert. As I grew in confidence and experience, I began to rely on maps instead of scripts. These days, I map out my arguments on paper with words and phrases with the occasional full sentence or a paragraph. If there is something I want to say precisely, which I feel I may not get right in the heat of a hearing, I write that and box it somewhere so I am not fumbling for words when I reach the point I want to use it.
We cannot persuade with a script we read out. It is too structured, rigid and formal. There is no flexibility, no space for discussion and no engagement with the judge. Worse, hearing others read something out, unless they are a professional theatre actor, is tedious and boring. All that makes for poor advocacy. Because advocacy is about persuading and convincing the judge about the soundness of our client’s legal position.
If you use a script, you need to take steps to rely less on it before abandoning it altogether. It is not easy for some of us as you can tell from my telling. I think it a psychological issue more than a competency issue. If you ever lose it, know that that is the best thing that could happen to you.
If you have done the research, the thinking and the drafting, don’t reach too hard; it will come.
Ditch the script. Lose the bear.
It will make you a better advocate.