JUNE 13 — This was a question that I have been asked many times. There are also quite a number out there who think that a good talker is a good lawyer because he can “turn and twist the facts” to suit his client’s interest. This, unfortunately, only happens in the movies.
The lawyers in the movies lead more glamorous lives than the lawyers in real life. In the Hindi movies, you will see the lawyer giving a speech in court and the audience clapping. This never happens in real life, hardly anyway. In real life, imagine a person buried in books and looking stressed. The media is equally responsible for hyping up the image of lawyers because they generally only report sensational cases — not necessarily important cases.
I tell aspiring law graduates not to take up litigation unless they really love problem solving and love to spend hours reading and thinking. If most graduates of other fields throw their books away upon graduation, the law graduate who wants to practise litigation starts his life of reading. To be a good litigation lawyer, you must never cease to research and read critically.
As a litigation lawyer, clients who come expect and hope for you to solve their legal problems, whether it is civil or criminal. When you sit down with them and listen to their woes, you must remember that you are listening to one side of the story. While you are taking down whatever it is that they are telling you (which lawyers call “instructions”), you must equally be careful to ascertain the truth of what they are saying.
This ascertainment must be done carefully and tactfully because some clients may be offended by thinking that their own lawyer does not believe them. This is where understanding of human nature comes into play when you are listening to your client.
Taking instructions, to me, is the most important part of accepting a case. This is where a litigation lawyer, having knowledge of how the human brain works, helps the client to express the facts. It is human nature, for example, to make half sentences when they speak or presume a fact even when it is not stated. This is where the lawyer has to ask a series of questions calculated to bring out as much of the facts as he can from his client so as to have an understanding of the case.
In a criminal case, after hearing the client’s side of the story, it may be necessary for the lawyer to do his own investigations on matters which may be relevant but his client is not telling him or does not know.
Whether it is civil or criminal, a good litigation lawyer will do his best to get the full picture, that is, both sides of the story. Personally, I always try to make sure that I am never surprised by the other side, hence the need to get all the facts.
Preparing for the trial is another very critical aspect of representing the client. From my experience, many clients do not understand this and think that the trial is the most important. I would say that the bulk of the work is done before trial, especially if it is a civil case. All the evidence must be ready in the form of a bundle of documents, the witness statements depending on how many witnesses you want to call, the research on the relevant laws, knowledge of the rules and procedures governing the trial and so on.
Needless to say, the litigation lawyer would already have researched and studied as much of the law as he can on the subject.
Ahead of the trial, it is important to study and think about the other side’s story and the evidence that they are going to provide. In other words, the cross examination of the other side’s witnesses already proceeds in your mind even before you go for the actual trial. This part is more challenging for criminal lawyers because they will only know the other side’s witnesses’ evidence when they actually come to court to testify. Hence, the criminal lawyer is also one who is able to think on his feet quickly and cleverly.
At the trial, a sound knowledge of human behaviour will help him when he conducts cross examination, which, to me, is both a science and an art. He has to know the rules of evidence well so that his effort to elicit evidence does not fail by reason of objection by the other side’s lawyer.
It is always challenging to get answers out of people, especially the answers that you want. Once again, this involves a skill in sizing up the witness whom you met for the first time in the witness dock in court.
Each case is different, with different sets of facts and different people involved. So, a good litigation lawyer is also one who can adapt his reasoning process to different scenarios. He is also some sort of a Sherlock Holmes who is able to make inferences and deductions based on the facts and evidence that he has been given.
In a nutshell, I think a “natural” litigation lawyer is a law graduate, a psychologist, an investigator, a problem solver, an analyst, an intellectual or someone who likes using the intellect, a voracious reader and an expressive person all rolled into one. He must always be one who is willing to work 24/7 without shutting off his brains. Hence, you must either be mad or so in love with the law to be a litigation lawyer.
* Jaharberdeen Mohamed Yunoos is a senior lawyer and founder of Rapera, a movement that encourages thinking and compassionate citizens. He can be reached at [email protected]
** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.
