First Principles and Navigating the Law

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First Principles and Navigating the Law

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As a lawyer, I am fortunate my father is a lawyer too. In terms of age, we’re a generation apart. That means he has thirty years of lived experience ahead of me.

That also means he has close to twenty years worth of legal practice experience ahead of me. He was called on 29.11.1979. I was called on 6.8.1999. That’s 19 years, 8 months and 8 days. But hey, who’s counting?

The best thing about my father being a lawyer is that I can ask him just about anything, anytime and any place about the law or legal practice and he is up for it. That’s very helpful and useful. When I take stock of my thinking and attitude, the way I carry myself as a lawyer and conduct the legal matters entrusted to me, I realise much of it was influenced by him.

Many of the lessons I learned through observation, osmosis and our many, many conversations about the law, legal matters or legal practice, which continue to this day. Having accompanied him in meetings and watching him in action, I never fail to be impressed with how quickly he grasps a subject matter or a problem and gets to the heart of it. Whenever I feel I am in over my head, I turn to him.

There are two qualities that stand out about his thinking: clarity of thought and big-picture thinking. Easier said than done. I continue to cultivate those qualities despite the pittance of every previous harvest. Pair those with eloquence and a strong command of English or Malay and he makes the complex comprehensible, like turning lead into gold.

But I digress. Because my father was always up for questions, I would pose him all kinds at random moments. He always had time for them. Of course, I don’t remember each and every one of them. But some are cherished.

One formative one I recall during my first year in practice (circa 1999-2000) was about how to approach the law. We were in his car on the way to work together.

‘Dad, how do you, you know, know the law? How do I get acquainted with it? Should I memorize statutes and cases?’ I asked whilst he drove.

‘For myself, I begin with understanding the basic principles or purpose of whatever it is I am looking at. Those are important because those are its reason for existing. I make sure to grasp those very well first. Once I grasp them well, I can reason from there and work out their logical implications. That’s called reasoning from first principles. In that way, I have an idea of how things should be. I can compare that to reality and see how far or close they accord. It is the same with the law. There are basic principles of law that runs through its diverse areas of practice. Once you understand them, you can work out what the law ought to be.’

‘What do you mean by basic principles?’

‘Well, the more you read the more you will come across them. They appear in statutes and cases and are cast in a variety of forms. But they all can trace their source to a governing principle. So the more you read, the more you notice these principles recur. If you pay attention, that is. So keep reading. That’s why I ask you to make a habit of reading the weekly reports. The more you read the better you get a sense of how the principle will be applied across a variety of facts.’

‘Okay. So what are the basic principles of law?’

‘I’ll give you one. The rest you go and read and figure them out for yourself. A basic principle of justice is fairness. If it is unfair, it is unjust. Laws should be generally fair both in substance and in their application. One way it expresses itself is by having to give notice. A law must first be publicized to the general public before it can be enforced. It is unfair to enforce a law we don’t know about.’

‘That’s why, under the law, if something is to happen to another person, there will almost certainly be a legal provision about giving that person notice about it. The purpose of giving notice is to first, alert that person about the demand against them. Secondly, it is to give them an opportunity to respond to that notice. Or to change their behaviour accordingly. In that way, the process achieves fairness in how a dispute or disagreement is managed.’

‘It is like that in the Rules of Court also. The Writ is a notice that legal action was taken against us. The summons-in-chambers is a notice that a litigant has an application to make. The judgment is a notice to the world at large about how the dispute ended in court. Every single thing has to be served on the other side. That is to afford the other party time and opportunity to enter an appearance and to file their defence or affidavit in reply. All that is about achieving fairness between the litigating parties. So if there is no provision about giving notice, you know something is off about it. You understand?’

‘Yeah. What about memorizing cases and statutes? Is that necessary?’

‘If you can commit them to memory, all well and good. It is good to know the classic or leading cases. It always sounds more impressive. I don’t make it a point to do so unless I have to or want to. In practice, you don’t actually need to memorize everything. Practice is not a university where you go into an exam hall and regurgitate what you memorized. As a lawyer, you have time. You can refer to whatever materials you need. When you quote a decision, the court does not expect you to do it from memory. You are expected to understand the decision and whether it applies, not simply memorize and parrot it.’

‘What you should be looking to do is not memorize the law but learn how to navigate it. Learn where you need to go and how to get where there quickly. Survey the landscape of law as much as you do the law. That is going to be important to your practice because there is so much information out there. There are new laws being made all the time. If they are not new, they are updated. Whatever the case you have to keep up with it. There are always new cases being decided. Every week there are new ones. You need to learn how to manage all that, not horde it.’

Whatever my father said back then is even more applicable now than it was twenty years plus ago. There is now even more information generated every day than ever before because it is easier to generate information. Just look at the internet. People generate all kinds of information. More laws are created and updated every year. More cases are decided every year. In this day and age, there is just more of everything (except maybe useless qualities like kindness, genuine humility and selflessness). And it comes at a faster and faster rate.

I actually pity future lawyers because, as a litigator, I can see how the volume of case law and statutory law lawyers are expected to get through and know grows continuously at an exponential rate. For a growing number of cases, we are required more and more to scour a variety of other jurisdictions for authorities because the internet has made them affordably accessible. There are a greater number of statutory laws we need to know because laws proliferate as society becomes more dense and complex. But knowing is not enough, we also need to know how these laws work in concert as more of them become interrelated and overlap. Complexity takes time to unravel.

To this day I try to cultivate clear thinking and big-picture thinking. The former helps me discern first principles. The latter helps me better navigate the law. These abilities grow in importance as data and information grow in volume and complexity, which looks inevitable for the foreseeable future.

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