Unequal Adversaries

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Unequal Adversaries

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I prefer fair fights.

I prefer fair fights.

That is when the contestants are more or less equal in abilities and seniority. They fight when fit and fight fairly, with no unfair advantages. They lose with a sword in hand and not from an arrow to the back of the head. It’s an OG v OG fight, not an OG v John Doe fight.

But we don’t always get an equal opponent. We often don’t.

I recently had to battle against a witness for a criminal matter in the Selayang magistrates’ court. She was a fourteen-year-old alleged victim. She accused my client of hugging her for a sexual purpose. My client flatly denied it. Hence the trial.

She was sixteen when she took the witness box. On the first day, we completed her examination in chief. I cross-examined on the second day. Re-examination was conducted on the third day.

During her cross-examination, I demonstrated her inconsistency, flippancy, and evasiveness, forcing her to retract a lie. Not polishing my arse, but after I completed my cross, the prosecution’s case was in tatters. I thoroughly undermined her evidence and credibility.

I felt pleased as I drove back to the office in the evening. There is a kind of pleasure unlike any other from a well-executed cross-examination. It is a sense of satisfaction and relief for a job well done. I nailed both my professional and personal targets.

However, after dinner, I began to feel embarrassed about my earlier triumphant feeling. With due respect to the witnesses, it was like using a shotgun to shoot fish in a barrel.

She was a truant, low-level intelligence, sixteen-year-old girl who couldn’t keep her story straight. Sometimes, she took up to two minutes to answer questions which damned you whichever way it was answered. I felt sorry for her during my cross-examination, particularly when we waited for her to answer.

She was up against me: a modestly skilled advocate with twenty-plus years of trial experience who happened to write the Malaysian Guide to Advocacy, spent hours carefully studying the documents and client’s instructions and refining the sharpness of his cross-examination.

Pretty unfair. Thoroughly unevenly matched. This wasn’t even David v Goliath. This was a gnat v David.

The awareness of the disparity provoked a sense of sobriety about my triumph. It wasn’t a ‘triumph’. It was more a case of me not cocking it up. It wasn’t taming a fire-breathing dragon. I was up against a scrawny kitten. There was nothing to be proud about demolishing her evidence.

In litigation, we do not have the luxury or privilege of choosing whom we battle with. It’s a spin of the wheel. We have our share of familiar and unfamiliar opposing counsels. In applications and appeals, we battle against our legal colleagues. In trials, we battle against witnesses.

Being professional means always preparing and executing our plan, irrespective of whom we must examine or confront, whether a fourteen-year-old girl or a sixty-year-old man. The fairness of the fight is not for us to decide.

As professionals, however fair or unfair the fight, it remains our responsibility to advance without the influence of fear or favour our client’s interests to the best of our abilities within the boundaries of our ethics.

That is all we as lawyers can do.

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