Afternoon court sessions are a challenge to get through; especially after a heavy lunch.
It is for this reason, no competent litigator would or should eat a full-on banana leaf session for lunch with a continued trial in the afternoon.
But even without the full-on banana leaf, Daniel H Pink in his book When: The Scientific Secrets of Perfect Timing calls the afternoons between the hours of two to four o’clock the trough. He says the trough is a danger zone for productivity, ethics, and health.
He wrote about a research review of 90,000 surgeries at Duke Medical Centre which identified, amongst others, ‘anesthetic adverse events’. These are when an anesthesiologist makes an error or harms a patient or both. Adverse events are supposed to be significantly more frequent between three to four o’clock in the afternoon. Those are one of the many examples he gives to make his point.
The researchers attributed such events to afternoon circadian lows. These impair physician vigilance and ‘affect the human performance of complex tasks such as those required in anesthesia care.’ According to Pink, regardless ‘of our chronotype, the afternoon can impair our professional and ethical judgment.’ It is naturally the least optimal time to do work.
What all that means is we get sleepy and lethargic around two to four in the afternoon and perform at our worst then. Add a full-on banana-leaf session and that will take you several notches lower.
It’s not the best time to do important intellectual or creative work. It’s the worst. We are just not at our best. We are not machines of monotonous efficiency and efficacy throughout the day, every day. Our mood, energy, and psychological capacity ebb and flow like the tide throughout the day. These elements are to be managed, not bullied. To bully them into obedience only harms ourselves.
One afternoon I was treated to a rare incident by a judge that struggled with a legal adverse event. Thankfully, there was nothing fatal about it.
It was a contested application. It was a summary judgment application pursuant to Order 26A of the then Subordinate Court Rules 1980. I argued many of those in subordinate courts early in practice. I was either pursuing one or defending against one.
It was in the Kuala Lumpur Courts when they were located in the buildings on the corner of Jalan Raja and Jalan Tun Perak. It was a Sessions Court that was tucked away in a sleepy corner of the courthouse on the first floor of the building. We were fixed for hearing at two-thirty in the afternoon.
The courtroom was cuneal in shape. The wall on one end was wider than the one across it. In front of it was the interpreter’s desk and adjacent was the first row of tables. That’s where we sat. My opponent and I were there fifteen minutes before the hearing and small talked as litigators sometimes do to kill time.
The courtroom had a lazy, cozy feel to it. We were the only matter fixed that afternoon. About twenty minutes after the appointed time, the court interpreter came in. The guard stirred to his feet and announced, Kot! Banguuuuuuunnnnnnnnnnnn…..
I have often wondered whether the fade-out was intentional. It had a nice touch to it. How many court officers brought musical sense to their proclamations? A rare few, in my experience.
We both saw the judge lurch into the room, then his chair. He addressed us whilst we were standing up, the bags under his eyes were hard to miss. He had a heaviness about his face and bearing. He looked as if he had more than just my summary judgment application in mind. I doubt any judge has lost sleep over a stock standard goods sold and delivered claim.
After the formalities of introduction, I took the judge through my application. I could see he was struggling to keep awake. He fought to keep his eyelids open and shook his head from time to time to stave off the yawns that kept prying his mouth into an open gape. You could see the roof of his mouth if you really tried. So great was the struggle, I doubt he managed to take anything down. I concluded my submission while he battled against the advances of the sandman’s army.
My opponent glanced at me with a wrinkled forehead before he stood up. He kept his submission sharp and short. He said what he had to say as quickly and sat down. I was listening to him and he had three quick points of rebuttal.
I stood up and saw that the judge’s eyes were flickering. It had that flutter of defeat about it. I knew that flutter because I did it too when I forced myself to stay up way past my bedtime.
As I began my submission I noticed the sandman’s army claimed complete victory over the judge. He was safely ensconced in his chair. His eyes were shut and a look of calm had stolen over his face.
I stopped in mid-sentence unsure how to proceed next. I had seen movies where the lawyer drops a book or something noisy. But I have always thought that to be rather rude. I also did not think it was appropriate to raise my voice to a judge, awake or asleep.
I looked at the interpreter. She looked at me. We looked at each other.
“Tuan has fallen asleep,” I said to her in a lowered voice.
Right on cue, the judge let out a snore.
The interpreter got up and turned around to look at the judge.
“Yah. Tuan look very tired since this morning. I think he is not well,” she said.
“Yes, he does look it. Tuan should have taken MC or something.”
“So what do you want to do?” the interpreter asked us.
“I feel sorry for Tuan Hakim having to sit like that. He should be in bed. How about we come back another time? ” I replied
The judge snored again.
“I have no issue with that. I also feel sorry for Tuan Hakim. He looked tired from the moment he came in,” said my opponent.
“Okay, come lah then. We fix dates.”
That was the only time I experienced an afternoon siesta in court.
