Electing No Case to Answer

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Electing No Case to Answer

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I felt a deep need to prove myself in my early years of practice. If I could show how clever I was, I would. It was, therefore, fortunate that I conducted a case where I learned my lesson sometime in my seventh year of practice.

We acted for a statutory body that sacked an employee over misconduct about ten years after the complaint was made. He sued them for his dismissal, seeking declarations and damages. We went to trial after my attempts to strike out the claim failed at the High Court and Court of Appeal.

The trial was expected to be a short one. We were fixed for a day. The Plaintiff had one witness. We brought three. Their evidence was not expected to take long. Two were long-serving senior officers. The other was the legal officer.

The senior officers were not keen to go to trial. They did not have experience giving evidence in court. Despite their age, around their forties, they were fearful.

During dinner, they implored me if they could somehow avoid the witness box. After dinner, we went through the bundle of documents to familiarize ourselves with the likely documents they would be examined on. The legal officer had no such issues. She spoke rarely and had a look of amusement about her most of the time.

By then, in my career, I had seen twelve to fifteen-year-old girls who had been through far worse conduct themselves with far more composure at the prospect of going into the witness box than those two grown men. Seeing men older than me get anxious about giving evidence was sad.

In my attempt to allay their fears and calm them, I thought I was being clever by explaining my argument as to why the Plaintiff would fail even without their evidence. Firstly, the Plaintiff’s witness statement alone was insufficient to prove his case. He had to call at least another witness to prove his case on a balance of probabilities. Secondly, the Plaintiff did not submit sufficient evidence to prove his case. Thirdly, given the direction the Plaintiff’s evidence pointed to, it diverted from his pleaded case.

They quickly gathered that, going by my explanation, their evidence was superfluous to win the case. I came to that conclusion already but thought to call them all the same to complete the case. Nail the coffin, so to speak.

However, from then on, they assailed me with flattery, compliments, praise, and admiration for my cleverness, courtroom skills, and yada yada. In short, that night, for that brief moment, in their deep desperation and anxiety, I was to them the most outstanding lawyer that ever lived lah. After a savage round of arse kissing, I felt myself start to waver. I don’t know where I found the strength to tell them I would think it over a night’s rest and let them know what I decided the following day, but I did.

Unfortunately, by the time I got to my hotel room, the poison of praise had reached my bloodstream. I was up all night and part of the morning. But I was not weighing up whether to call them as witnesses. I was carefully considering if I could succeed with an election of no case to answer.

A defendant makes an election of no case to answer after the plaintiff closes his case. In doing so, the defendant says the plaintiff’s case is defective or hasn’t been proven. It is a problem of form, substance, or both. Lord Omerod, in an English Court of Appeal case, explained the two circumstances when a defendant would make such an election:

There are, however, two sets of circumstances under which a defendant may submit that he has no case to answer. In the one case there may be a submission that, accepting the plaintiff’s evidence at its face value, no case has been established in law, and in the other that the evidence led for the plaintiff is so unsatisfactor or unreliable that the court should find that the burden of proof has not been discharged.

Per Lord Omerod in Storey v Storey [1960] 3 All ER 279

By my assessment, the Plaintiff’s case fulfilled those conditions.

I had never before done a case, electing no case to answer. The thought of winning the case without the defence being called in a civil suit incredibly excited me and appealed to me. It contrasted with criminal practice, where arguing the prosecution had no case to answer was standard practice. The thought of appearing like a hero to those cowards fed my delusions of grandeur. There was also their promise to put in a good word for me.

If all this sounds grotesque, as I find now, I do apologize, but you sometimes have to excuse the immature sentiments of an insecure young man.

The next morning, I declared the senior officers were unnecessary for trial. They were all smiles. Full of jokes and laughter. Like little kids again. I was their bestest friend in the world. Amazing lawyer. The way they behaved, you would think they were recently acquitted of an offence.

The Plaintiff’s case unfurled, tattered and incomplete, as I anticipated. After the Plaintiff closed his case, I informed the court the Defendant elected to submit no case to answer. The judge was surprised. I felt I could win it. The court fixed the schedule for the exchange of after-trial submissions and decision date.

I went back and reported to my boss my conduct of the trial. He was not pleased. It was one of the rare times he was upset with how I conducted a case.

‘Fahri, electing no case to answer was an unnecessary risk you didn’t have to take. The Plaintiff’s evidence binds us. If we don’t call a witness to rebut, an adverse inference can be drawn against us. I know you are convinced you are right. The case fulfils the elements. But what if you are wrong? What if the court disagrees with you? You may be right, but if the court disagrees with you, then you are wrong.’

‘Uncle Izzat, I carefully considered whether we would succeed.’

‘I know you did. But this is not about being right but about being prudent. You are only thinking of the case going in the way you want. What if it doesn’t? That’s what you have to be mindful about – what happens when you lose and what are you going to explain to the client? In this case, if we lose, the client will ask, why did we elect no case to answer? Why didn’t we call the witness? They were there on trial day kan?’

‘Yes.’

‘Ha. And then we didn’t call them even though they were there. Your explanation that you are right to the client is useless if we lose. They will ask why we took such a risk when we didn’t have to. When we lose, Fahri, the client is going to look for anything to blame us. We want to avoid being in that situation. Please don’t do this again. Please don’t make a call like that on your own. Call me to discuss before you do something like that.’

‘Yes, Uncle Izzat.’

I felt my face grow hot. The poison of praise had left my body, but it left me with a flu of regret and embarrassment. Thinking back to my conduct while my boss was schooling me made me ashamed and embarrassed of my egoistic behaviour. I was upset with myself, but I could do nothing about it.

‘I hope we don’t lose the case.’

As it turned out, we did.

My boss and I had to go before the legal head to explain what happened at trial. Although he defended my decision before her, my boss conceded we could and should have been more prudent and called the witness. With his usual impressive social skills, he talked her into a smile, which gave us an opportunity to conduct the appeal.

When we left the client’s office, my boss said, ‘Don’t be fooled. She may be smiling at the end but she is still unhappy we lost the case. Now, you better win the appeal. If not, we may be off the panel. Let this be a lesson for you.’

That was a low point in my career. I prided myself on getting things right and pleasing the boss. In that case, I felt I let him and the firm down big time with my recklessness and narcissism. I put the firm in potential trouble. I was stressed and anxious over the possibility that if we lost the appeals, we could be sued for negligence. I had many sleepless nights after that talk.

Despite my recklessness, my boss left the appeal entirely to me.

I worked hard on the appeal to the Court of Appeal. I worked on it as if my career depended on it. In some ways, it did. That was the first time, and I promised myself, the last time, I would take and make a decision so recklessly with my head up my arse. In the future, I would decide on a course of action based entirely on the facts, the law and the other party’s actions. My ego was prohibited from getting involved with strategy.

I was fortunate to succeed in the Court of Appeal. The panel agreed with my arguments. It allowed the appeal: see Lembaga Pertubuhan Peladang Malaysia v Saiman Umar [2015] 7 CLJ 714. The relief I felt at succeeding at the Court of Appeal was immeasurable. I felt vindicated but chastened. The Plaintiff’s appeal to the Federal Court was dismissed: see Saiman Umar v Lembaga Pertubuhan Peladang [2015] 9 CLJ 153.

Although the case ended agreeably, I have not forgotten the lessons I learned from that incident. They have stayed with me since.

Firstly, do not take unnecessary risks when we don’t have to. Do what we can to improve our chances of succeeding with the case, not lessen or weaken them. Of course, I mean legal means of improvement, not illegal ones. I don’t know why I feel this compulsive need to clarify this.

Secondly, do not conduct a case influenced by our ego or narcissism. The case is not about us. It is not a platform for us to prance like a pony. Suppose you’re a natural prancer, then okay, nothing I can say. But the case is about the client’s claim or defence. We are there to advance the claim or defence. That’s it. We, as lawyers, even though we are the primary movers of the case, should think ourselves secondary to the case. We must keep our egos as far away from the case as possible. Humility, always.

Thirdly, be very wary of flattery. I am ashamed to admit the senior officers’ flatteries, compliments, praises, etc. got to me. I liked hearing it. It made me feel giddy and great. I felt on top of the world. But those feelings and thoughts made me lose focus. Instead of keeping my focus on the case, I focused on myself. Bad.

Since then, I have been suspicious and wary of flattery, praise, etc. I listen but keep it at arm’s length in my mind. I have cultivated an automatic heavy scepticism about praise and flattery. I am suspicious of people who come bearing too much praise.

That’s not to say I dislike hearing praise or flattery. Of course, I do. But I am mindful, if not fearful, I might like it a bit too much. I am wary of these things, not because I don’t like it, but because I like it or may like it too much for my own good.

What makes us feel or taste great momentarily tends not to be good for us in the long run. In my experience, that is the natural state of things.

Finally, think very, very carefully before advising a client to elect no case to answer for a civil trial. There are two significant consequences in doing so: see Takako Sakao (F) v Ng Pen Kyuen (f) & Anor [2009] 6 MLJ 751, FC. Firstly, the Plaintiff’s evidence will be considered true. Secondly, Defendant will have no opportunity to bring evidence to refute Plaintiff’s claim and evidence. These are severe handicaps.

For these reasons, an election of no case to answer should be considered a last resort rather than a first one.

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