There will come a time in every litigator’s career when they will be called upon to conduct a case which contains absolutely no hope of success, without even the fig leaf of a remotely plausibly arguable point. It’s the case so devoid of merits, even saying ‘devoid of merits’ does not sufficiently describe how deep, inscrutable and mysterious that void in devoid is. It’s the case we are too embarrassed to discuss because we are afraid even describing the case’s lack of merits would taint our reputations and enervate every future advocacy performance.

Naturally, I had such an experience. Actually, I had many such experiences. The truth is you cannot avoid it, especially if you do criminal defence work or defend credit card, loan and financing claims. The stinker of a case I recall with much fondness was the one I successfully managed to avoid, so to speak. It was a case of a breach of contract.

Company A terminated the contract with Company B because Company B breached important terms of the contract. Those breaches gave Company A the right to terminate the contract. Company B contended Company A’s termination notice was not issued according to the contract; the notice was, therefore, illegal and without effect. So ran Company B’s argument. The High Court did not buy Company B’s argument and allowed Company A’s claim against them.

We were retained for Company B’s appeal to the Court of Appeal. After considering the documents and High Court judgment, and listening to Company’s B representatives, I felt the High Court was correct and we had no hope of an appeal. The lone lame assed argument our client raised in the High Court could not even hold a candle to a baby’s fart, and we are talking a five, six month old baby here.

I told Company B’s representatives they had a poor case. It was best they settled the claim. Settling reduces their potential loss. Company B avoids incurring more legal fees and court costs they are likely incur if they proceeded with the appeal. And that is on top of the damages claimed against them. Despite several attempts to convince them not to proceed with the appeal, Company B’s board of directors was adamant.

“Try your luck, Encik Fahri. See how it goes!” said the legal manager cheerfully at our final meeting before the appeal hearing.

It’s easy for them to say. They were not the one standing in front of three court of appeal judges that fired questions that tore large holes into their non-existent fig leaf of a case. My concern was simply to ensure my metaphorical hand was not damaged in the process. Losing a case with an arguable case is fine. At least it felt as if our our case had clothes.

Ultimately a judge prefers one over the other and decides. It’s their call, not ours. Litigation is a zero sum game. There will be always be a winner and a loser. But for a stinker of a case, it’s like our case has no clothes on and it ain’t a pretty sight naked. And the worst part is there is nothing we can do about it except to see it through.

“Luck only comes into play when we have an arguable case. We don’t have one here, so I know how this is going to go,” I remarked.

I don’t like it when the client or the public talks about court cases like it’s some kind of gamble. We have laws, we have cases, we have judges to apply these strictly when they decide cases. We have lawyers to assist the court about all those matters. Cases are decided based on evidence and law. The outcome theoretically has strong elements of predictability about it. We will be told why we lost or won. What kind of gamble are you talking about?

And yet, it is. Let’s get real. It is a gamble. There are many variables, some known, many hidden. We have laws, but they are not applied consistently; for example, punishments vary according to personalities instead of mitigating factors. We advance our tightly bound arguments only for it to be dismissed without explanation or general incantations that do not illuminate. We have decided cases but sometimes instead of being authorities of law they function as aspirations of law. There are cultures and systems of fairness and equity we are not aware of and not discoverable through texts, only experience.

“You lawyers can argue white is black and black is white isn’t it? Work your magic lah!”

“Puan, I am a lawyer, not a magician. I do arguments, not magic.”

Some people even think lawyers akin to saints, able to raise a case from the dead and rotten. No. It doesn’t work like that. Maybe that happens on TV and the movies. But by and large, no. Lawyers are closer to healers; we treat and heal the sick, we do not raise the dead.

On the day of the hearing, there were seven matters listed, our case being the last. My opponent tried to get our case heard earlier ‘because it is a simple one issue appeal. We’ll take half an hour between the two of us, maybe much less.’ It was hard to be annoyed with his description, because it was charitable. In fact, I would have gone further and called it a no-issue appeal. But it was no doing, the bench insisted on hearing the matters in the order it was listed.

That meant there was a chance we could be adjourned the next day. That was something my opponent and I were agreed upon we did not want to happen. We were ready and wanted to get it over with. I wanted to get it over with as quickly as possible. We were there at eight thirty in the morning.

The first three appeals took up the morning right up until lunch. They had four more appeals to get through after lunch. We had grave doubts the panel could finish us all off in the afternoon. All four were full appeals. My opponent went up to the registrar after lunch before the court sat to ask again if our case could be called up earlier. We were declined again. So on we sat through three more appeals, which ran all the way up to four thirty in the afternoon.

My opponent and I were exhausted from the waiting. When our case was finally up, we thought we were going to be adjourned since it was four thirty already.

“I’m sorry to keep your case waiting counsel, but as you can see, we had a very busy day, today.”

“Yes, my lord. We are aware. Your lordship may have noticed we sat through the day too.”

“Yes, indeed. Anyway, it is very late in the day, counsel. Perhaps…”

I could see where this was going so I quickly said, “My lord, this is a straightforward appeal. My learned friend and I will be very quick. We would very much like to be heard this afternoon, my lord.”

“I support my learned friend’s position on this, my lord,” said my opponent quickly after me.

The chairing judge looked at us. I’d like to think he understood our desperation to conclude the day with the appeal done having waited the day for it. He huddled with his fellow judges to discuss. When they were done, the judges slid back to their judicial seats back to their usual station.

“How about this counsel, we have read your submissions; are you agreeable to standing by your submissions and we decide based on that in lieu of an oral submission?”

What a complete stroke of luck! My opponent and I were only too ready to oblige.

“I am happy to do so, my lord.”

“I am, too, my lord,” chimed my opponent.

“Very well. We dismiss the appeal with cost of five thousand ringgit. The appeal is completely devoid of merit. There is no error in the High Court judgment. Thank you for your cooperation counsels. We are adjourned.”

We were done in less than three minutes. Hilarious. I had no issue with the decision. It was correct. My opponent was pleased. He came over to shake my hand and walked off with a spring in his step. I, too, was quietly pleased. I did not have to orally argue the case, and that was satisfaction enough for me.

It was my first and only ‘written submission hearing’ at the court of appeal.

After I informed Company B’s management, the legal manager called me up.

“Hi, Encik Fahri. So we lost ah?” she asked as if we had a chance of winning.

“Yes, Puan. It should be no surprise. We predicted this.”

“Yah. Yah. Okay. So what do you think if we filed an appeal against the decision?”

“I think you would be wasting more money and effort on this. Just pay the judgment sum. Don’t appeal this any further. We kena bungkus in less than three minutes flat in the court of appeal. Why would you want to do this?”

“The board is not happy with Company A and wants to teach them a lesson.”

“Fine, fine. But this is not the way to do it. Your company is just wasting money on futile litigation that achieves nothing. Don’t waste the courts time with this. Teach them a lesson another way. Be the top in your business area. Go for listing. Earn ridiculous profits. Litigation will not achieve your purpose.”

“Okay. I will tell the board. Thank you.”

Company B discharged us. They appointed another firm to file and attend to the application for leave to appeal to the Federal Court.