Answer then Explain

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Answer then Explain

Yesterday, while waiting for our appeal to be called up, we witnessed a hearing for an application for an extension of time to file a record of appeal. There were four lawyers appearing for the applicant and three appearing for the respondent. All of them seemed to be young and inexperienced.

I gathered they were there to get a taste of the rarefied air of the appellate courts and for the experience. There was no need for so many of them. The application was not vigorously opposed, routine in argument and the hearing took less than ten minutes.

The segment of interest for me arrived when the court decided to allow the application and asked counsel about the cost of the application.

‘Respondent counsel. Are you asking for costs for the application?’ invited the chairing judge.

‘Yes, my lord.’

‘How much?’

‘My lord, because we have filed an affidavit in reply, written submission and ….’

‘You don’t have to tell us all that. We know what you filed. How much are you asking for?’

‘My lord, we ask for ten thousand ringgit because…’

‘Okay! Ten thousand ringgit,’ the judge said deliberately to match his pen strokes. He looked up, ‘Applicant? Costs. How much?’

‘My lord, after taking into account the application prepared, the submission filed, and having to…’

The judge looked annoyed.

‘Just give me the number lah, counsel. No need to explain!’

‘Two thousand ringgit, my lord.’

‘Okay,’ said the judge and wrote furtively thereafter.

A way to entertain ourselves in court is to try and predict how much costs the court would give for an appeal or application. My colleague and I looked at each other. We simultaneously said, ‘Five thousand.’ We called it right. The court allowed the application but ordered the applicant to pay costs of five thousand ringgit.

We have roughly worked out the rule of thumb of how the court generally decides costs. It does not actually assessing the cost of work done under the Rules of Court 2012. It will simply locate the median between the two contrasting proposals by opposing counsels and award that.

The advocacy lesson from that incident above is when the court poses a question to us, answer it directly. There is no need to give a preamble or an explanation before our answer. When the judge asked the counsel how much cost they were asking for, the response should have been a number. The judge did not ask to justify the number so there was no need to do so.

And if we want to justify it, that should come after answering the court’s question. Answer then explain. The judge is likelier to give us more time and space after we answer their question instead of before because it shows we are listening and addressing their request, instead of forcing them to listen to something they did not ask for or expect. Imagine how it feels when we ask someone a simple question only to receive a long-winded reply. It’s tedious.

Another thing for new advocates to appreciate is this: Not all questions require an argument or submission in response. If a judge is asking a simple question, answer it simply. Don’t over think it. Focus on understanding what is being asked of us and respond to that. Keep it straightforward.

It is a common mistake of new or inexperienced advocates to say too much or too little. And out of prudence they tend to err on the side of surfeit. It is time and experience that hopefully will imbue us with the discernment to know and feel what is too much or too little.

Until then, it is best to answer questions posed to us simply and directly. And if we feel the need to explain, let that come after our answer.

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