Litigation is a drag these days. For the most part. A primary reason for that is regrettably my colleagues at the bar. Not all of them, of course. There are competent and credible ones who are also reasonable, fair and pleasant. But they are like Malaysian public holidays: they exist, they are celebrated but there’s never enough of them.
My sense of it is there is a widespread misguided idea of what it is lawyers do. It stems from a severely impoverished and undernourished understanding of what legal practice is about.
There is an idea popular with the general public that an uncompromising, unreasonable, obstinate, and aggressive lawyer is necessarily an effective or good litigator. Lawyers are there to ‘fight’ any and everything on their client’s behalf until the bitter end no matter how unreasonable. A ‘good lawyer’ facilitates them having their way regardless of whether the law and ethics permit it or not. A lawyer is merely a professional instrument used to manifest our client’s worst urges and sentiments in the legal arena. The ‘ingenious lawyer’ is one that can get his client in and out of anything.
I don’t have an issue if that is what the public thinks. Popular depictions of lawyers in the entertainment media have long distorted what it is lawyers do and how we go about it.
My concern is when this belief is widely held by practising lawyers. I litigate at all court levels and regrettably see this belief being expressed too often. These days, it is common to encounter lawyers who do not simply attack the opposing case, but the lawyer as well.
Zero professional courtesy. Paegentries of pedantry. Not even the illusion of mutual respect. Opposing any application no matter how uncontroversial. Actively antagonistic at every opportunity. Proactively adversarial and bitterly as possible. Lighting up feuds. Refusing to compromise on things that can be. Devoid of reasonableness, grace or fair play.
Filing frivolous applications. Applying to recuse their colleagues at the bar for no good reason. Reneging on verbal promises or assurances. Disputing the authenticity of letters issued by members of the bar. Asking for an extension of time but refusing to return the favour. Ambushing. Summarily accusing a colleague at the bar of lying and misleading the court without basis whilst actually misleading the court themselves.
I could go on and on about how mean we can be and are to each other.
I call all that drama.
Maybe some are unaware of this, but litigation practice does not need drama for it to be litigation. No one pays us for drama. We, as lawyers, shouldn’t be having our own parallel drama. There is enough drama in the facts of the case. In fact, litigation is a thoroughly pleasurable experience when there is no drama.
Those drama practitioners could be called drama queens at the bar. It sounds catchy, but I prefer to call them the Legally Qualified Pariahs (LQP). I know it sounds harsh, but really, it is a pittance compared to the amount of misery and ruin these fellas cause to the litigation experience.
LQPs have all the trappings of a lawyer. Their annual certificates, practising certificates, and professional indemnity insurance are in place. They have the black and whites, collars and bands, and robes. They have the office, staff and cases. They have their firm registration certificates. But really, they are LQPs.
You can tell by now that I do not consider these LQPs lawyers never mind litigators. To me lah-ha, they lack the Soul of a Litigator. And the Soul of a Litigator is sportsmanship.
Sportsmanship is an aspiration or ethos that a sport or activity will be enjoyed for its own sake. This is with proper consideration for fairness, ethics, respect, and a sense of fellowship with one’s competitors. A “sore loser” refers to one who does not take defeat well, whereas a “good sport” means being a “good winner” as well as being a “good loser” (someone who shows courtesy towards another in a sports game).
Wikipedia
As a tennis player, when my opponent hits an outstanding shot to beat me, I applaud him and his winning shot. When I smack a winning shot down the line my opponent does not call it out to spite me but congratulates me on a good shot. If we have a cramp, we help each other out and make sure we are okay before we play again. When we lose, we say, Good game. When we win, we say, Well played. We shake hands. No hard feelings after. It’s over except for a wish to do better against each other next time. Most of us that play sports are like this. That is sportsmanship.
That is how litigation should be and can be.
I know this because I have had such opponents before, those that had a soul of a litigator. Those cases were an absolute pleasure to conduct. No drama. No needless applications. No underhanded machinations. Agreeing to uncontentious applications. Mutual respect and courtesy. All the focus was on the facts, the law, and the court and doing the best we could for our respective cases. In sum, conducting litigation in the best tradition of sportsmanship.
The soulful lawyer would begin by trying to reconcile and negotiate. In other words, to settle.
People (which include artificial people) have a dispute. What that needs is a resolution, not a conflagration. We want the dispute to go away, right?
We start by making the dispute narrower and smaller, not wider and bigger. If we cannot resolve that disputed bit between ourselves, the courts are there to resolve it for us. Lawyers are hired because we advise about the law and present a dispute in court for others. Because of that, we are naturally the first opportunity for resolution as well. That is precisely what the law encourages.
This was expressed in relation to ‘without prejudice‘-titled-correspondence or communications in the following:
From these cases it seems to me that the principle which emerges is that the Court will protect, and ought to protect so far as it can, in the public interest, “without prejudice” negotiations because they are very helpful to the disposal of claims without the necessity for litigating in Court and, therefore, nothing should be done to make more difficult or more hazardous negotiations under the umbrella of “without prejudice”. I am well aware, coming from the division which I do, that letters get headed “without prejudice” in the most absurd circumstances, but these letters, in my judgment, are not letters headed “without prejudice” unnecessarily or meaninglessly.
They are plainly “without prejudice” letters and, therefore, the Court, in my judgment, should be very slow to lift the umbrella of “without prejudice” unless the case is absolutely plain.
Ormond J, Tomlin v. Standard Telephones and Cables Ltd [1969] 3 ALL ER 201
So, there we have it. As a matter of public policy, the courts promote settlement outside its precincts. Whatever is said within the parameters of without prejudice negotiations is inadmissible in court. This protection creates space and opportunities for parties to speak freely, without being strictly and immediately bound by what they say during negotiations.
These days, lawyers are so adversarial in orientation, outlook and attitude that mediating or encouraging settlement is seen as a separate skill from that of a lawyer. The idea that we have to be trained and certified as trained to mediate has taken root. Some think being skilled for a legal battle is everything.
It isn’t.
Negotiating, mediating, cultivating settlements and not being an asshole are important and valuable legal and interpersonal skills. I don’t see why lawyers cannot negotiate and mediate despite acting for our client. We are learned in the law. We are given our respective versions of and angles on the facts. We are not blind to the reality of it. We know the score.
If we, as adults, and by that I include our clients, are reasonable, reasonably intelligent, open-minded and genuinely interested in finding a solution, there is a fair chance of finding an amicable settlement, or at least in settling parts of it. No guarantee, of course. Sometimes the twain never meets. But if we and our client have none of those traits, moulding a mutually acceptable settlement is difficult, if not impossible to even begin.
Of course, cases will come to us where settlement appears patently impossible, if not highly improbable. There will always be those streams of cases that defy categorization running alongside the main river of common cases but remain unabsorbed by it. I am not talking about the side streams.
If the settlement attempts fail, we have to gear up for litigation in the courts. But this is not a go-to-war kind of fight. This is a go-to-sport kind of fight.
The metaphors we use colour how we see things or betray our true orientation. When we think in terms of war, we associate it with words like kill, annihilate and eradicate by any means possible. Do whatever it takes. If we think in terms of sport, we associate it with words like competition, fairness, honesty, sportsmanship, teamwork, and above all beating the other side within the rules of play. Do only what we are allowed.
Right now, litigation feels like a go-to-war kind of fight. It was that drama I described earlier. I detest practising litigation this way as much as those that enjoy doing so. Those that do are the LQPs. It is unnecessary, costly, stressful and enervating for both lawyer and client. It clogs up the courts with frivolous applications. It is a complete waste of time, effort and expense. But an LQP thinks that this is how they need to behave to be of use to their client.
Litigation should be a go-to-sport kind of fight. Fair fights. Honourable litigation. Our word is our bond. Never mind if our client is not like that. We must maintain the dignity of our profession, especially between ourselves. Do our best against each other before the court within the boundaries of our legal ethics, practice, traditions and the law too. Remember, the case is not personal to us. It is personal to the client. If it weren’t for the fact we are lawyers, we would have nothing whatsoever to do with the case.
As litigation lawyers, we are part of the administration of justice. As litigators, our first duty is to the court, not our client. Although our clients give us an opportunity to practice, it is the court that countenances it.
The Soul of a Litigator is stifled, corrupted and eroded when it is chained only to their client’s interest. Those that appreciate only their client’s interest are inevitably LQP.
That soul is lighter, freer and happier when its concerns are greater and lie in serving its client’s interest within the context of the administration of justice. It is only when litigators approach legal practice as sportsmen or sportswomen does legal practice open up space, impetus and opportunity for camaraderie, amicable resolution and the pleasure of practice. When we treat litigation as a sport, it becomes fun. When we treat it as war, it is not.
The Soul of a Litigator ultimately is about the civilized resolution of a dispute between people. If we cannot encourage, foster and resolve the dispute by agreement, then we will engage in a civilized, candid, reasonable, fair and respectful argument about why we should prevail between litigators and the court. We should endeavour to keep the litigation reasonable and warranted. We should conduct our case in a way to trouble the court as little as possible and promote camaraderie as much as possible.
Without camaraderie, trust cannot grow. Without trust, we are compelled to think in terms of war. When we think in terms of war, we have no chance to cultivate the Soul of a Litigator. When the litigation scene is not populated by the Souls of a Litigator, it will be populated by LQPs, those legal fakes, like it is now. When the litigation scene is populated by LQPs, litigation descends into a cesspool of pageantry, malice, unreasonableness, one-upmanship and nastiness that pervades our litigation practice in Malaysia.
The state of litigation practice in Malaysia now recalls the chorus of a favourite song of mine and it goes:
Where’d all the good people go?
‘Where’d all the good people go?’ Jack Johnson
I’ve been changing channels
I don’t see them on the TV shows
Where’d all the good people go?
We got heaps and heaps of what we sow
4 thoughts on “The Soul of a Litigator”
Thank you for writing this article. I totally agree with your view point on, amongst others, negotiating settlement and Trial as the last resort if settlement negotiation fails.