This piece of advice was given to me by my father before I commenced my pupillage. The longer version was along the following lines:
Before you go to court, you must always read your file. Read everything in it. Always read the pleadings so you get the essence of the dispute. If there is an application pending, read up on it. Read the correspondence folder and file notes. It tells you what happened before and gets you up to date on the file. It doesn’t matter whether it is a mention or a hearing, you must know your file thoroughly when you step into court. You must be ready to answer anything about it.
Compared to some of the other advice my father gave me, I thought this one was a single-tall-tree-in-an-acre-of-grass-field-kind of obvious. Why wouldn’t I read the file up before I went to court? Did my father secretly think I was that thick?
Of course, I would be prepared! I dare not waste the court’s time with my ignorance and ill-preparedness. Plus it would be a breach of the Legal Profession (Practice and Etiquette) Rules 1978 (LPR).
(a) An advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day.Rule 6(a) of the Legal Profession (Practice and Etiquette) Rules 1978 (LPR)
That doesn’t just mean turning up. It means prepared and ready to argue or conduct a trial. But it was after I commenced my pupilage and right through my early years when I was in court almost daily that I understood why my father felt compelled to give me that advice: Just in case. He wanted to make sure I got the memo.
He gave it because he came across pupils and lawyers turning up in court not knowing their files as often as I did. There were daily occurrences of this when I started out. When questioned by the judge or registrar, only then do they begin flipping their files open to look for the information asked; and these were to obvious and basic questions. I have seen lawyers uhm-ah-ing and flipping pages about when a judge asks them something as simple as what their claim or defence is. That reaction suggests a lack of preparedness. A judge is likely to have a poor impression of that lawyer’s competency.
It also saved me once very early in my practice.
It was not long after I was called to the Bar.
It was my then colleague’s file. I was tasked to go and apply for an adjournment in the Shah Alam High Court of a summary judgment application hearing against our client, the defendant, in the afternoon.
I recall two reasons we gave for the adjournment. First, Plaintiff had filed its affidavit in reply and we wanted time to reply. Secondly, for some reason, my colleague wasn’t around. I don’t remember why.
Although we had written in earlier, the court had not responded. My colleague assured me the adjournment wouldn’t be an issue. Plaintiff’s lawyer had no objection to it. The judge also was known to grant adjournments if there were no objections raised. We were also within time to file an affidavit in reply.
So all I had to do was go to court and fix another hearing date for my colleague to argue the case.
I read the file the night before as advised by my father. I turned up early for the afternoon hearing. I re-read the file while waiting. I had a better idea of the arguments to take if I had to argue the application after the second reading.
All that was in my mind, of course, I didn’t write anything down. What for? The adjournment was a given. Before the court was in session I chatted with the Plaintiff’s lawyer who was pleasant and friendly.
About half an hour after the appointed time, the court rose. It quickly disposed of two case mentions before our case, which was the only one fixed for hearing that afternoon. After the introduction of the lawyers and the case, Plaintiff’s lawyer informed the court we had an application to make and sat down.
‘My lord, I am applying for an adjournment of today’s hearing. We wrote in earlier to court to give notice. We did not receive a response. So I am also making this application now. My lord, we would like time to reply the Plaintiff’s latest affidavit. Also, my colleague is presently away. My learned friend for Plaintiff has no objection to our application. I would be grateful for a fresh hearing date for the application.’
Whoa. Whoa. Whoa. That wasn’t supposed to happen. I was momentarily nonplussed.
I thought it was a given. Everything lined up, no?
‘But my lord, we need time to file an affidavit in reply to Plaintiff’s latest affidavit in reply.’
‘You want to reply. Then Plaintiff, of course, wants to reply. There will be no end. If you cannot show me a defence or a triable issue in your first affidavit in reply, then you have nothing. All your bullets should be in the first affidavit. Don’t think you want to spread them out in each affidavit in reply. You understand or not? This is summary judgment. It’s straightforward. You had your reply. Plaintiff had their reply. The court doesn’t need any more affidavits. Now, proceed.’
I remember a sense of utter desperation engulfing me. This wasn’t how it was supposed to go!
‘My lord, I am very sorry. But my colleague who is handling the matter is not here today. That is the other reason, we are applying for the adjournment. My learned friend has no objection to the adjournment.’
‘You think what? Just because the other side objects you are going to get the adjournment is it?’
‘No, my lord.’
‘Your colleague assumed he was going to get the adjournment, isn’t it?’
‘I don’t know, my lord.’
‘Did you think you would get the adjournment today?’
‘I don’t know, my lord.’
‘If you don’t know then you should have been prepared. You should have been prepared to argue if I refused the application. Isn’t it?”
‘I am sorry, my lord. I am not prepared. It’s not my file, my lord.’ Even though I was prepared, I didn’t have the confidence to step up. I think that was one of my personal lowest points in practice. I felt ashamed after I spoke the words.
‘That is unacceptable, young man. The court doesn’t care about your internal arrangements. And that is not the court’s problem. If you are here for the defendant then you better be ready. I will stand down for half an hour for you to get ready for the hearing. If you are not ready, that is not my problem. Court is adjourned.’
My heart raced. The judge left the room. Plaintiff’s lawyer turned to me.
‘I am sorry about that. I thought you would get it. Do you have enough time to prepare?’ He knew I was freshly called, barely a few months in. He was a few years into practice and a very nice chap. I was soon to learn how nice.
‘I’m not sure… I have to write my submissions out first. I better get to it.’
This was the time before I had gotten past getting rid of my script. So I had to write out my submission before I could deliver it orally. This was an instance of how being a slave to a script hampered my ability to respond to a situation flexibly and quickly.
‘I tell you what. I can do this for you. If you need more time, I will slow down my submission so you have time to finish your submission. How is that?’
I wished I remembered the lawyer’s name because he was a gem in that bleak situation. He showed me great kindness in a situation he could have taken full advantage of.
‘Thank you, sir. I am very grateful. But please excuse me now, I have to get down to writing my submission.’
Which I did. From the moment I broke off our conversation, I wrote and wrote, frantically and furiously, all the arguments in my head, refining them as I wrote them out. I felt like I was sitting for a paper for the university exam again. There I was furiously scribbling out my answer to beat the clock.
But half an hour was not enough.
I was writing even when the bell went off to announce the court was in session. I stopped briefly when my learned friend introduced us to the court. Before he started, he quickly turned to me and said, ‘I will take my time with my submission. Once you are ready, just slide me a note and I will finish off my submission’
‘Thank you so much, sir. I am very grateful for this.’
On he went with his submission and on went I with my scribbling and to and froing from the affidavits and exhibits. The judge listened patiently. There were hardly any interventions by the judge. I think my learned friend managed to drag it out for a good forty-five minutes before I gave him the signal and he wrapped it up in the next five.
After about an hour and fifteen minutes, I had a full submission; if you minus the introduction and ending which I could do without. I got up and read my submission, I’d like to think, engagingly. The judge was unmoved. He listened to me like he did Plaintiff’s lawyer. Quite the poker face. Plaintiff’s lawyer replied. The judge said he was going to have to think about it and stood the case down.
As soon as he left the room I turned to Plaintiff’s lawyer.
‘Thank you so much for that, sir. I am very grateful for your kindness. I was just shocked the application was refused and had to do my submission on the spot. That was nerve-wracking! I hated to say it to court but it really isn’t my file. I was just here to take the adjournment.’
‘Well, you did well given the situation you were in. Your colleague should buy you an expensive lunch.’
‘I think so too.’
The court buzzer went and the court was in session.
‘Having heard submissions, the court dismisses Enclosure 8 with costs of five thousand ringgit. The court finds there are triable issues. This claim should go to trial. Court is adjourned.’
That was the second shock of the case: I defeated the application. Plaintiff’s lawyer came over to congratulate me and then left. I was still in a bit of a daze. I had no expectation whatsoever of winning it, just surviving it. Reading the file twice before the court appointment played a big part in that.
I don’t know how any lawyer or pupil can go to court unprepared not knowing their file.
And I don’t ever intend to find out what that experience is like.