A Resolutely Major Generalist

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A Resolutely Major Generalist

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Sometime last year, a lawyer friend called me up. We’ve known each other for some time. After exchanging pleasantries, he told me he had a matter he needed help with.

‘I thought of bringing you in. But then I realized that I didn’t know your practice area. Sorry for not knowing despite knowing you for so many years.’

‘Aiyah, no worries lah. My practice area… How about this? Why don’t you tell me what help you need, and I’ll tell you whether I can help you. If I can’t, I can recommend and refer.’

‘Ha? So mysterious one! Tell lah!’

When I am pressed about my specialization, I respond by saying my specialization is in being a generalist. If I had to describe my law practice, it would be generalism in the most total sense. I’m a full-caps generalist. I am a five-star kind of general. I was in the park the other day when someone called out ‘General’; I thought he was calling me. I kid.

I don’t specialize in any specific area of law. I’m not a specialist with a big ‘S’. While I am happy to spend time in an area of law, I have difficulty devoting an entire career to it. If I repeatedly confront the same specific fact patterns and laws without meaningful and enough variation, practice becomes routine, boring and tedious. With me, that ends with cynical despair.

It is not that I don’t want to devote my career to an area of law.

I can’t. I am not made for it. It is against my grain.

I can’t get enough of the spice from the law’s variety.

I see a constellation of legal areas for my curiosity to slake itself. I thrive on the contrast and colours that come from regular servings of a diversity of cases. I get excited when I am greeted by the fresh, dew-tinged vistas each time I enter a new area of law. I love the disorienting sense of discovery, the humbling awareness of how little I know and the pleasure of accumulating and integrating new learning.

The freshness from discovery, re-discovery, learning and application keeps me curious and motivated. The complexity and effort that go into dealing with several areas of law at once keeps me challenged. My chase for such highs drives me out of my comfort zone into unfamiliar ones. That drive expanded my zone of competency and comfort.

A broad and moderately deep experience across several practice areas suffices. I don’t, can’t and won’t know all of them. But the broader my experience and awareness, the more helpful I can be to a situation or someone. Being able to advise or represent holistically and comprehensively brings me deep personal satisfaction. I feel like a positive addition to society, even as I am advising someone on a charge of murder.

I want to help the many instead of the few. Helping the many lies in attending to the usual areas of dispute, such as the law on contract, tort, corporate, crime, family, etc. It is a broad area. It is vast as it is varied. I am fascinated, invigorated and anti-fragile by that variety. Helping the few lies in dealing with matters which are niche or uncommon.

I felt something was wrong with me for some time because I resisted specialising. These days, I no longer feel the need to apologise for not specialising. I accept that a general practice suits my character, abilities and inclination. There is nothing wrong with that.

In terms of law, I can advise about and conduct, for example, tortious claims (negligence, defamation), contractual disputes (breach, specific performance, construction), corporate disputes (shareholder fights, winding ups), administrative law challenges (judicial reviews), constitutional law challenges, industrial claims (unjust dismissal, employment-related claims), criminal cases (trial and appellate levels), family claims for non-Muslims or Muslims (divorce, custody, maintenance, Syariah Court, High Court), probate and administration matters (applying for probate or letters of administration), estate claims and disputes (removal of executor, compelling administrators to distribute); prepare wills, trusts, power of attorneys, sale and purchase contracts, shareholder agreements or whatever required legal instrument; notarize documents and affirm affidavits and statutory declarations.

Where legal practice is concerned, for example, I litigate in the Magistrates, Sessions Court, and High Court. I appear in the Court of Appeal and the Federal Court for appeals and applications. I conduct domestic and international arbitrations. I appear regularly in the Kuala Lumpur Syariah Courts in the lower courts, High Court and Court of Appeal. I conduct cases in the Industrial Court. I represent the complainant or lawyer before the Advocates & Solicitors Disciplinary Committee and Disciplinary Board. I have appeared as a proxy in shareholder meetings in peculiar places. I regularly give legal talks and training to pupils and young lawyers for the Bar Council or State Bar Committees and legal aid clinics.

I set out what my colleagues and I can do to give a sense of what I mean by variety. We enjoy and thrive on that relentless contrast of practice. I do not claim to be outstanding at any of them. I do not claim to be the best.

However, I consider myself and my colleagues sufficiently competent and experienced to represent, attend to, and advise others about their legal affairs and deliver a talk or three. We are trustworthy, competent, and dogged to conduct whatever matters to ensure our client’s interests are privileged, protected, and advanced.

I am going to stop. I am sounding like a bloody ad.

Despite my seeming breadth of practice, I still feel and know that what I know is merely a peasant’s backyard vegetable patch in this vast plain of law. The Everest of what I don’t know and perhaps will never know dominates the horizon of my knowledge. And I don’t know what lies behind that Everest either.

I think being a generalist has many advantages. I will discuss a few for flavour.

I preface that discussion by clarifying that I am not saying that being a specialist is inferior to or lesser than being a generalist. Both serve their respective purposes at the appropriate moments and have their inherent limitations and advantages. One is not better than the other. It is a question of suitability. Specialists are for the unique, technical, and those who specialize. Generalists are for everything else. The borders between them are not precise.

Now, about those advantages.

Firstly, from a personal perspective, there is more to be interested in, curious about, and fascinated with regarding the law and legal practice. I am naturally inclined towards generalism because the kaleidoscope of it all fascinates me. It’s like sailing the seas instead of lapping the lake. There’s always something new to learn or existing to update. There are more legal adventures and new experiences to endure and enjoy in a broader arena. Boredom is non-existent.

Secondly, generalists have a broader sensitivity to the array of potential legal issues in a given factual situation. For example, if a matter spans corporate, criminal, tort, Syariah, and administrative law, a generalist experienced in those practice areas is likely to be sensitive to such issues and can advise and represent accordingly. A generalist is in a position to appreciate better the legal implications across various legal practice areas and factual scenarios. That appreciation enables consideration and formulation of a single unifying, consistent and cohesive strategy across the various areas.

Thirdly, practising in various areas has a compounding effect on our legal insight and skill set. 2 + 2 = 5.5. Competency across various practice areas enables insights into those legal areas, particularly when intersecting. We can compare and contrast one practice area with another. Knowledge of one area informs our knowledge of others. Skills and strategies honed in one area benefit others.

An example of this is advocacy. I usually have a clutch of criminal cases running alongside my regular practice. It is to keep my ability to think on my feet honed, cross-examination sharp, and my imagination loose. Compared to my civil cases, particularly the document-heavy ones, I have to be sharper and quicker to react in my cross-examination in criminal cases.

Everything is given upfront in civil cases: the claim, the basis of it, and the defence. If an application is involved, affidavits and written arguments are exchanged. If it’s a trial, paginated document bundles with printed witness statements waiting to be affirmed are served in advance. There is much documentary orchestration and oral evidence choreography involved in civil proceedings.

Less so for criminal cases. We are given some documents the prosecution intends to adduce at trial. We don’t always know who the witnesses will be. We do not get witness statements before trial. That creates significant uncertainty about the best way to approach a defence. That, in turn, creates tremendous pressure to make a great deal of critical spur-of-the-moment judgment calls throughout the trial and during arguments.

What I gain from one practice area can benefit my other practice areas.

Fourthly, an inherent resilience and range develops from practising over various areas. Range affords me opportunities to lean on or develop other practice areas when work I foresee work in our regular practice areas slows, decreases, if not ceases. Resilience enables the diversification of risk. Many practice areas have to be extinct before I am affected. Range enables resilience, intellectual and financial. Resilience is a prerequisite for sustainability. That is what I am looking to achieve.

Fifthly, being a generalist allows us to attend to an array of legal problems, from the common to the contentious to the unprecedented. We can provide legal services to a greater section of society, to people, natural or artificial, or a society of them. I think this point is the most obvious.

There are, of course, downsides to being a generalist. It’s not all Sundays and sunshine.

Firstly, generalists do not usually dominate a particular practice area. They do not because they cannot. The multi-faceted nature of a generalist practice inhibits a reputation for expertise or dominance in a particular area from being established.

Secondly, following that, generalists come off sounding vague and uncertain about what they do. This makes explaining to others difficult. I recognize how ironic this is, given that law is reputedly all about black-and-white certainty. Generalists are more challenging to market. They have many competitors. They don’t have a niche.

I know everyone tells us to specialize. It is lucrative. It is niche. Easier to dominate. Easier to market. Specializing is the way to go. I read and hear that all the time. Fair enough.

But that’s not for everyone. Amongst them is me. As a generalist, I have difficulty holding myself out as a specialist or an expert in any area.

I practice because, aside from earning a living, I enjoy being a lawyer, doing legal work I like, going to places where a case takes me (even though some are not pleasant), meeting people I would never meet, learning things I needn’t know, and encountering situations I never would.

Thirdly, and quite naturally, generalists will not know a practice area as deeply and completely as someone who has dwelled in a specific practice area for a long time. They will likely lack the nuance, deeper insights and unique knowledge derived from a specialist practice. This makes generalists susceptible to the Dunning-Krueger effect, i.e., overestimating our knowledge of an area we actually are ignorant about.

If I am to be a specialist in something, I choose to specialise in technique, not subject matter. It is my abilities that enable me to be able to advise and represent in various practice areas. My focus is on the basics.

I seek ways and opportunities to refine my reading, writing, thinking, speaking and empathetic skills. Keeping them at a reasonably high operating level allows me to maintain range. Getting acquainted with a new area of law or practice is disorienting and difficult. I used to fret at how long I took. Now, I do not worry. If I stay with it long enough, keep doing and give it time, I know I will gain competency in that area of legal practice. Of that, I am confident. After that, it is simply a matter of opportunity. The more I experience, the more I learn.

Another reason I can practice over a variety of areas is that we do not need to spend a great deal of time in a specific practice area to acquaint ourselves with it. But we have to be focused, patient and diligent.

The Pareto principle states that 20% of the causes are responsible for 80% of the effects.

Before I proceed, please appreciate that though I seem to use precise percentages, they are metaphors. The numbers indicate the emotional weight I allocate to it.

I don’t know whether the Pareto principle applies to knowledge and experience in a legal area, but I believe that. I have no studies, research, or proof. It is my sense of it from experience. I feel the balance is closer to 30 – 35%/70-75% i.e., if we know the core 35%, we can do 70 – 75% of the cases.

When you first start to study a field, it seems like you have to memorize a zillion things. You don’t. What you need is to identify the core principles – generally three to twelve of them – that govern the filed. The million things you thought you had to memorize are simply various combinations of the core principles.

John T Reed, Succeeding

Once we grasp the core 35%, it lays the foundation to deal with most cases. The other 25- 30% we cannot deal with, those go to the specialists. The specialist will know those because they are likely to have spent 85% – 100% of their career in that practice area.

For example, take criminal cases. If you know the foundational 35% of criminal procedure and criminal law, you can do 70% of the cases. If you know the criminal trial process, where the burden of proof lies, what the standard of proof is, what the burden on the defence is, principles of relevancy and evidentiary integrity, that you have to challenge the material evidence and put the defence during the prosecution’s stage, you could conduct a trial.

I know this because I knew a little less than the core 35% when I did my first criminal case in the Kuala Lumpur juvenile court and won.

It is like that with other areas of practice.

We don’t have to immerse ourselves forever to be good enough to practice it. We don’t need to know it all at once, either. If we can, great; if we can’t, we will get there with persistent study. We can accumulate, assimilate and integrate our knowledge when we encounter it more or less regularly.

With many of these new areas, get to the core 35%. Spend time finding out what that core 35% is, or work it out. You can find the core from the statute, essential textbooks, practitioner’s texts, academic commentaries, leading cases, and those practising in that area. Once you know the core and how to get to it, proceed. Rinse and repeat in the following practice area. You will be surprised how much you pick up after 20+ years of active and curiosity-driven legal practice, picking up the core 35% here and there.

So, what’s a general practice like mine like?

It is a blast. I am pleased and privileged by the variety of work. I am grateful to those who trust my colleagues and me to advise them and conduct their cases. It is rarely dull. Sometimes, it is complex, tedious, challenging, miserable, nerve-wracking, frustrating, annoying, or depressing. But it is never boring. Some days, it’s the best damn job in the world and is immensely satisfying.

There have been days when I conducted a criminal trial in the morning, popped by the office to check on a conveyancing matter over lunch, and then was off to the civil court for a breach of contract trial; days when I conducted a Federal Court hearing in the morning, and then continued with a part-heard case in the Magistrates court in the afternoon; days when I conduct a Syariah court trial in the morning, and then an online hearing in the Court of Appeal in the afternoon; days when I work on a divorce settlement agreement in the morning, and share sale agreement in the afternoon; weeks when I am working on a heavy legal opinion and have meetings without any court to attend.

That is a taste of what a day could look like. There is more to it, of course.

Not all generalists are the same or can be compared with apple to apple. Each generalist has a unique configuration of skillsets, attitudes and experiences. Each configuration has its advantages, expertise and limitations.

I don’t think we can meaningfully convince anyone to be a generalist any more than we can be convinced to be a specialist. It is in our bones. We are either inclined or not. We can work against our nature, of course. But we would be worse off and miserable about it.

The point is not whether we are a generalist or a specialist but whether we practice in a manner consistent with our nature, inclination and attitude. If we do that, we avoid violating ourselves and can derive the most significant return of pleasure, fun, and resonance from our work and practice. And that should be the goal for each lawyer, generalist or specialist, or whatever our work.

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