The Stinker of a Case
There will come a time in every litigator’s career when they will be called upon to conduct a case which contains absolutely no hope of success, without even the fig leaf of a remotely plausibly arguable point. It’s the case so devoid of merits, even saying ‘devoid of merits’ does not sufficiently describe how deep, inscrutable and mysterious that void in devoid is. It’s the case we are too embarrassed to discuss because we are afraid even describing the case’s lack of merits would taint our reputations and enervate every future advocacy performance. Naturally, I had such an experience. Actually, I had many such experiences. The truth is you cannot avoid it, especially if you do criminal defence work or defend credit card, loan and financing claims. The stinker of a case I recall with much fondness was the one I successfully managed to avoid, so to speak. It was a case of a breach of contract. Company A terminated the contract with Company B because Company B breached important terms of the contract. Those breaches gave Company A the right to terminate the contract. Company B contended Company A’s termination notice was not issued according to the contract; the notice was, therefore, illegal and without effect. So ran Company B’s argument. The High Court did not buy Company B’s argument and allowed Company A’s claim against them. We were retained for Company B’s appeal to the Court of Appeal. After considering the documents and High Court judgment, and listening to Company’s B representatives, I felt the High Court was correct and we had no hope of an appeal. The lone lame assed argument our client raised in the High Court could not even hold a candle to a baby’s fart, and we are talking a five, six month old baby here. I told Company B’s representatives they had a poor case. It was best they settled the claim. Settling reduces their potential loss. Company B avoids incurring more legal fees and court costs they are likely incur if they proceeded with the appeal. And that is on top of the damages claimed against them. Despite several attempts to convince them not to proceed with the appeal, Company B’s board of directors was adamant. “Try your luck, Encik Fahri. See how it goes!” said the legal manager cheerfully at our final meeting before the appeal hearing. It’s easy for them to say. They were not the one standing in front of three court of appeal judges that fired questions that tore large holes into their non-existent fig leaf of a case. My concern was simply to ensure my metaphorical hand was not damaged in the process. Losing a case with an arguable case is fine. At least it felt as if our our case had clothes. Ultimately a judge prefers one over the other and decides. It’s their call, not ours. Litigation is a zero sum game. There will be always be a winner and a loser. But for a stinker of a case, it’s like our case has no clothes on and it ain’t a pretty sight naked. And the worst part is there is nothing we can do about it except to see it through. “Luck only comes into play when we have an arguable case. We don’t have one here, so I know how this is going to go,” I remarked. I don’t like it when the client or the public talks about court cases like it’s some kind of gamble. We have laws, we have cases, we have judges to apply these strictly when they decide cases. We have lawyers to assist the court about all those matters. Cases are decided based on evidence and law. The outcome theoretically has strong elements of predictability about it. We will be told why we lost or won. What kind of gamble are you talking about? And yet, it is. Let’s get real. It is a gamble. There are many variables, some known, many hidden. We have laws, but they are not applied consistently; for example, punishments vary according to personalities instead of mitigating factors. We advance our tightly bound arguments only for it to be dismissed without explanation or general incantations that do not illuminate. We have decided cases but sometimes instead of being authorities of law they function as aspirations of law. There are cultures and systems of fairness and equity we are not aware of and not discoverable through texts, only experience. “You lawyers can argue white is black and black is white isn’t it? Work your magic lah!” “Puan, I am a lawyer, not a magician. I do arguments, not magic.” Some people even think lawyers akin to saints, able to raise a case from the dead and rotten. No. It doesn’t work like that. Maybe that happens on TV and the movies. But by and large, no. Lawyers are closer to healers; we treat and heal the sick, we do not raise the dead. On the day of the hearing, there were seven matters listed, our case being the last. My opponent tried to get our case heard earlier ‘because it is a simple one issue appeal. We’ll take half an hour between the two of us, maybe much less.’ It was hard to be annoyed with his description, because it was charitable. In fact, I would have gone further and called it a no-issue appeal. But it was no doing, the bench insisted on hearing the matters in the order it was listed. That meant there was a chance we could be adjourned the next day. That was something my opponent and I were agreed upon we did not want to happen. We were ready and wanted to get it over with. I wanted to get it over with as quickly as possible. We were there at eight thirty in the morning. The first three appeals took up the morning right up until lunch. They had four more appeals to get through
