If you worked with me, whether you are a lawyer, pupil, intern, paralegal, or clerk, at some point, you will hear the following speech from me. You wouldn’t have heard this precise version. It always changes in the telling. I keep refining it as I go along. This is today’s version of it:
“I know it looks to you as if I know a lot and appear good at what I do. But appreciate that before we are lawyers, we are human beings. That means we are fallible. Of course, I try my best to avoid and evade errors. But those are inherent to the human condition. Understand that most days I have a lot of stuff to get through. There’s my work, your work, my lawyers’ work, educating our pupils, meeting with clients in the office on the phone, calls, texts, dealing with other lawyers, dealing with the admin, and much more – so the chance of missing something is there. It’s always there.”
“That is why you must tell me if you think I made a mistake or am about to make one. It is your duty to tell me when you think I am wrong or am going wrong. It is your duty to make me consider your concern. Just like how I am teaching you and nurturing you – this is how you take care of me. This is how you play your part. This is how we have each other’s backs.
“I would rather be shown the mistake in my office by my colleagues than a client’s office or during a hearing in the courtroom. I would rather my colleagues point it out than our clients or the court.”
“I know what you are thinking: who am I – a mere intern or pupil or X year old lawyer – to tell Encik Fahri, the boss, he is wrong, right? I know how you are feeling. You feel anxious just telling me about it. You don’t think you are confident enough. But you have to get over that. That part you have to do yourself. You’re going to be a lawyer. If you cannot tell your boss he is wrong, how are you going to tell your client? “
“So you must cultivate not just credibility and competency, but courage as well. Courage to point out what is wrong. Courage to stand up when it is right. Courage to do the right thing. And courage is not the absence of fear. It is doing the right thing in spite of the fear. And courage is what you owe me. “
“So how do you tell me I made a mistake? Firstly, know that being right does not give us the right to be rude and disrespectful. Secondly, we need tact. If you haven’t got it, learn it, develop it. It’s easy. Empathise. If someone had to tell us we made a mistake, how would we like them to do it? That someone is likely to prefer that way too.“
“An example of how you could broach the issue is, ‘Excuse me, sir, do you have a moment? If yes, I was giving [the issue] in our submission a think. I have a concern with a section of the argument. I need [x] minutes of your time to discuss this.” or “I was reading the draft [cause paper]. I couldn’t quite understand this portion. Did you mean to say…?” Lots of ways. Being empathetic and courteous should be your guides.”
“Telling me how long you will take is very helpful. It helps me decide whether to listen to you now or later. But the point I want to emphasize is you must raise it for me to consider. Don’t hide it. Once you tell me, you have discharged your duty and paid your debt of courage to me.“
“You are not under a duty to convert me to your view. But I hope you give it your best shot. I will respond if I disagree. And I will certainly probe. But you need to stand your ground with me. You mustn’t cave in at the first syllable of my question or counterargument.“
“I will listen but I am not going to roll over. Best thing you could do is immediately show me my mistake and explain why you think so. Did I fail to consider something? Did I make a leap in logic? Is it too long? Incomprehensible? Is my tone off? I will give you the time you ask.”
“But that is not all you should strive for. Helping me avoid error is one thing. Improving whatever I am working on is another. If you can do both, you are going to be incredibly helpful to me.”
I started delivering this speech after an incident in my father’s firm that made it necessary nine or ten years ago. I have been refining it since. Back then, I supervised three lawyers. I was the mandur of the firm. I had to vet their work, my own, and the pupils, staff, and administrative-related matters.
One evening, one of the lawyers gave me a bankruptcy notice (BN) to vet.
I skimmed through the documents – the judgment, the request for bankruptcy notice, and the BN. Back then, my main concern with BNs lay with ensuring the interest sum was correct. Many BNs were defective and struck out for incorrect interest calculations. The other important thing to look out for was that the judgment sum was not below the minimum threshold to initiate bankruptcy proceedings. My focus was on errors of those sorts.
Since all appeared in order, I approved the draft.
Two months later, my lawyer tells me the judgment debtor filed an application to strike out our BN. His reason for striking out was he should not be sued personally for a judgment obtained against the office bearers of the society, of which he was the president.
The moment I read his grounds I knew his argument was correct in law. Was it correct in fact? I went through the file. This time, I paid closer attention to the judgment’s intitulement.
The intitulement contains the suit number of the legal proceedings, the court in which it is filed, and lists each name of the litigants. It is always placed at the beginning of a document you file in court. It makes it easy to recognize which case the document relates to. If you want to see what that looks like, scroll to the bottom of this post and download one of those documents.
There were several names listed as Defendants. Below their names was a sentence in brackets that read ‘sued as office bearers for X society’. So he was legally and factually correct. I missed that on my first pass. The bankruptcy notice was bad.
I immediately called up the lawyer on the other side and negotiated a withdrawal with minimal costs. After that was settled, I called the lawyer in to ask whether she knew about our error.
To my surprise, she said she did. Why didn’t you point it out to me if you knew I was wrong on that? She said since I was her senior, far more experienced than her, and since I approved it, she was not confident about it. She felt she was likelier to be mistaken about it. Even though she read cases about it.
It was then I delivered the first iteration of the speech above.
This is a lesson to fresh or junior lawyers that work with a senior: do not presume the senior to be right all the time. Seniors do not have a monopoly on getting it right or knowing things. No one is perfect. No one knows everything. No one gets it right all the time. Don’t believe those that tell you they do. They are fooling themselves. Don’t be fooled by fools.
But I will say this about the good seniors, and certainly the great, they get it right more often compared to the average and lesser. They look at things from several dimensions. They have better, more creative ideas about how to approach or think about something. They are articulate. They are highly competent professionals. But they are human too and therefore, imperfect.
Have your argument mapped out. Have your sources at the ready. Prepare to articulate your argument. If you are right, you are right. Don’t gloat. If you are wrong, accept it and move on. There’s nothing to get personal about. In law, the default position is we agree to disagree. That should not lead us to simply disagree to agree. Ethically, we should not be unreasonable, we should be biased towards constructive solutions and discussions instead of one-upmanship.
Of penultimate importance is, stand your ground. Don’t be a shrinking violet that wilts at the first glow of warmth from discourse. The best arguments are useless if unexpressed.
Above all, and first and foremost, courtesy and respect in how you go about it.