No smoke without fire, as we like to say. But sometimes we mistake smoke for a cloud of kicked-up dust.
There was a senior lawyer whom I had heard gossip about since I was in my second or third year of practice. The common complaint about him was his sharp practice. He was said to read out only those passages in the judgment that supported his argument and conveniently stopped or overlooked other parts of the judgment that went against him. He would serve a revised submission or new bundles of authorities just before the hearing.
If you were lucky, you got both.
He was accused of obfuscating the facts and conflating the law, making a hearing against him tedious, difficult, and challenging. You could not trust what he said because he did not confirm things in writing so he could pivot on the issue later.
I heard all that and more; cumulatively over many years, in bits and pieces, drips and drabs, here and there, now and again, from a variety of lawyers. After hearing a constant and consistent stream of complaints that echoed and complemented what others said of him for so long, it was difficult to form any other impression of him. If so many people are saying the same thing, it must be true right?
Even as I knew I had to be fair to him, it was difficult. Whenever I gave him the candle of a benefit of the doubt, the damning accusations would materialize out of the darkness like demons to swiftly crowd and suffocate it. I met him briefly a few times before at Bar functions, but that was social. It’s difficult to gauge whether someone is a competent, credible, and proper professional at a social function. Our guards are down and we engage on a different intellectual and emotional level. There is no need for a warrior to display sword or skill at a feast meant for camaraderie and celebration.
And of course, one fine day, I found myself against him.
Well, actually my father’s firm and client against his firm and his client. I was just a foot soldier in the firm. At that point, I could not measure myself up to him in experience, reputation and learning. He was twenty years plus standing. I was a nobody that just made his seven years at the bar. The only way I thought I could measure up then was weight. He was heavy. So was I.
I saw his firm name on the Memorandum of Appearance (‘the Appearance Memo’). His nom de plume was his name shortened to its first two syllables. I took a deep breath. Oh boy, I need to be on guard with this fella, I thought. The case had to do with a claim for nuisance by our client against his client. It was contentious. Letters flew back and forth before the matter finally took legal form with their respective lawyers.
We filed the action. My orientation for the case was to be on guard for any sharp practices the senior lawyer was expected to pull. He, of course, did not handle the case personally. His legal assistant attended to the groundwork and routine case management.
He attended only the hearings and the important case managements before the Judge. He took every opportunity to charm the lady judge. I was powerless in the face of that. None of the legal advocacy books I read ever used the word ‘charm’. But there it was. All that was left was for me to shut up, observe and learn.
Despite his approach, I felt he was within the bounds of propriety. It wasn’t as if he came with a bouquet of red roses and chocolates. He was subtle. He didn’t bump, he nudged, gently. Strategic eulogization is the best I can describe it.
I, of course, was expecting more and wondered when what I heard from others was going to happen. But that was it though. Much to my surprise, the case proceeded as it did according to the usual course of proceedings. He did not file any funny applications. There was no document ambush, no unreasonableness over the marking of the documents, no two-faced statements, and on the whole, was cooperative and reasonable. He defended his client’s case squarely on the merits. He didn’t bother with technical objections. All in all, pretty straight up.
Throughout the case, I constantly measured my experience against the things I heard about him. A lot of the time my experience was different from what I heard. The only application we had before the full trial was an amendment application. We wanted to add certain post-Writ facts in our statement of claim. They opposed it. That hearing proceeded uneventfully. His advocacy was good. I don’t remember whether I measured up. All I recall of it was the High Court judge dismissing our application. I was annoyed but amendments are at the court’s discretion. So fair win to him.
We appealed. It was at the appeal that the senior lawyer refuted all the things I heard about him with a gesture.
We were in the Court of Appeal that morning. Although I had appeared several times by then in the Court of Appeal, I remained a touch nervous and anxious about the performance. These days, I would get up, go around, and talk to others while waiting for the hearing to be called. But, as a much younger lawyer, I would sit by my file and read my submission and cause papers, revising my submission ad nauseam; in a dignified attempt to assure and comfort myself.
So there I was at the bar table anxiously re-reading the cause papers when I felt a light tap on my left shoulder. I turned to my left and there he was fully robed with a sheaf of papers in his hand.
“Morning Fahri. How are you?”
“Morning Dato,” I replied. I wanted to say, I am nervous and anxious because you are senior and well known; and I cannot lose this amendment application because if I did, I was going to have a difficult conversation with my client about our continued appointment. But I kept it simple and restrained. The words that left my mouth were “I’m good, thank you. You are looking well.”
“Thank you. It looks like we are third on the list today.”
“Yes. I think we should be out quickly this morning. I heard the two appeals ahead of us are interlocutory application appeals too.”
An interlocutory application is an application made before the trial. A litigant would file it if he wants the court to make an order against the responding party to do or not do this or that prior to the trial. An application is filed by filing a notice of application together with an affidavit in support of the application. If there is a dispute over the application, the judge will decide it after reading and hearing arguments. That decision is appealable to a higher court.
An amendment application is an interlocutory application.
“That’s good to hear. Is there anything, Dato’?” I asked, hoping to conclude the small talk quickly. I wanted to get back to my pre-hearing self-care routine. Every second I spoke to him I felt growingly vulnerable. I needed the touch and feel of paper and pen to recreate my comfort bubble.
“Yes. I noticed this case was not in your bundle. It came out earlier this week,” he said as he handed me a photocopy of the case. It was unreported. “Have a read. It’s in your favour. Should win you the appeal.”
I looked up at him nonplussed. I felt the years of accumulated gossip I heard and held about him dissipate. I said all I could at that moment, “Thank you, Dato. That is very kind of you to do so.”
“Best traditions of the bar, Fahri. All the best,” he said and walked back to his seat.
I immediately got down to reading the case. He was right. The facts of the case were similar to mine. It was not to say I did not have authority for my argument, but the authority he gave me now directly supported it. Instead of relying on three cases, I needed only one. It was freshly decided to boot. It was one thing to not pull any sharp practices on me, but to give me an easy ball to bat out of the park was an entirely different matter altogether.
Best traditions of the bar indeed! That was probably the first time I heard and felt that phrase even though I came across it on paper so many times. There it was in living practice by a person I not long ago thought incapable of such grace.
Rule 20. Advocate and solicitor to put before Court any relevant binding decision.
(a) An advocate and solicitor shall put before the Court any relevant, binding decision of which he is aware which is immediately in point, whether it be for or against his contention.Legal Profession Practice and Etiquette Rules 1978
As lawyers, we are under a duty to put any relevant and binding authorities before the court we are aware of, even though it is against our own submission. Doing so may result in us losing the case. That is not acting in our client’s best interest. But this is an exceptional instance when the court’s interest overrides our client’s interest.
When our case was called I was on my feet. I ditched my earlier submission and relied entirely on the case. I sketched out the facts of our case, the grounds of the application, and rounded off my submission by referring to the authority he gave me. I handed up to the court copies of the case I had made soon after he gave it to me.
When it came for the senior lawyer to respond the panel made a beeline for the latest authority and assailed him with queries about it. It was magnificent. Like a mortally wounded and poisoned warrior who felt his life ebbing away yet fought to the very last, the senior lawyer tried as best he could to distinguish the case he gave me but eventually succumbed to its undeniable applicability.
It was a short hearing. We won.
I met the senior lawyer on the way out and thanked him again for the authority. I invited him for a drink but he had an appointment to attend to immediately.
After that, we had it out again at trial. We lost.
I had no complaints there either. He cross-examined our client’s witnesses well and scored some vital concessions from them which proved pivotal to their client’s defence. I learned from watching what he did. He was civil, professional, and efficient. He wasn’t warm or talkative with me but he was straightforward. He didn’t play with words. After the appeal, I came to have newfound respect for the man and felt chastened for believing the gossip about him.
There is a lot of gossip that goes down at the bar. It is a prudent thing to keep an open mind about what we hear. In listening, it does not follow we must believe; to consider is not to agree. We should always be mindful of our cognitive biases in effect.
We have Chinese whispers, which show information distorts or deteriorates with each subsequent transmission from its initial source. We are likelier to believe what we want to hear: confirmation bias. We indulge in wilful blindness to things we don’t want to know. Social proof predisposes us to believe what a lot of people say. If we are in a group and many of them think the same, we are likely to groupthink. We should audit our thoughts and output for cognitive dissonance. There are more. We perceive and receive our reality through these filters and environments that influence our inherent shortcomings.
We must be very careful in coming to a conclusion and apply Hanlon’s Razor as naturally as we do Occam’s.
As lawyers, we should subject gossip to the same scrutiny as the civil cases we handle. We should ensure that it meets at least the civil standard of proof i.e., on a balance of probabilities. That is a reasonable compromise between our right to bitch and practicing what we preach. It does not do for lawyers who claim to act on the law and evidence in court to discard them as soon as they step out of court and damn their fellow brethren and sistren with noxious vapours.
After all, our practice is what we preach.