Rejigging the Legal Submission
Preparing for arguments for court is now an exercise in labouriousness. Let’s take an application. The court will fix a schedule for the exchange of affidavits on the first case management date. Once that is completed the court will fix a schedule for the exchange of written submission. This is now taken as a matter of course. Now, no matter how simple and singular the contested issue might be, written submissions will be directed as a matter of course. So long as there is a dispute, there shall be written submissions. I joke with all seriousness that one day, if we are not careful, we will have to file written submissions with bundle of authorities for simple uncontested applications. Even those heard ex-parte i.e., hearing one side only, such as substituted service and extensions for time to serve a writ or an originating summons. You want to withdraw without liberty to file afresh before service on the other side you say? Written submission! Bundle of authorities! Speaking note! Written submissions are directed in two ways. There is the standard direction: applicant files its submission first; respondent replies to it; and concludes with the applicant’s reply. There is the simultaneous direction: applicant and respondent file their submission simultaneously. Both then respond to each other’s respective submission; and if a reply is allowed, and these are thankfully rare, a response to that. If the court gave standard directions, it will have three sets of submissions to get through; if it gave simultaneous directions, it may have four or six. The court will fix a hearing for oral submission after both parties comply with whichever directions given. At the hearing, counsel for the respective parties are expected to further distil their submission at the hearing. What often happens instead is they go on to elaborate their written submission instead of distilling it. An example of this can be seen in I love you 1000+. With the digitalization of the court filing system and process, with online hearings happening more than physical hearings, the way we prepare our submission has changed to accommodate those changes. More effort goes into preparation for an online hearing as compared to a physical hearing. For online hearings, we now prepare either a speaking note (our submission condensed to note form) or a power point presentation summarizing our points and displaying the documents or authorities referred to. Or my colleagues do so, and do so for me. We currently feel these items better facilitate the ingestion of our submission in this digitized-video-internet environment. I once said I would never use power point for my oral submission. I never expected I would ever argue through a computer screen over the internet in my office. I never dreamed a lawyer could argue a matter in court in their shorts and barefoot because only our top halves are displayed on video. So never say never. But it’s important to remember that it wasn’t always like that. Before the advent of online hearings, we filed and exchanged our written submission, turned up at the hearing and presented our arguments orally. But even before that, when I started practice, we didn’t prepare written submissions. Nobody did. We just turned up in court and argued the application when we were called upon. We just brought our bundle of authorities, relied on our affidavits or appeal records and went at it. But those days of pure oral arguments are so over. Now, filing a written submission is a prerequisite to having an oral submission. We will not be allowed to submit orally unless we have first put in our written submission. The pendulum has swung entirely for the written submission and against oral submission. Although we cannot do without submission, I feel we have come to a point where we need to ask whether we can do this submission thing better – both written and oral; whether we can put our efforts to more efficient use instead of simply generating more and more text and material for the court to store and consider; whether we can cut down the amount of material the court has to consider. Firstly, the court should consider how the written and oral submission should work together. Presently, I think it’s inefficient because they both cover the same purpose. Both are a means to articulate arguments. Both shouldn’t share the same purpose because it leads to duplication. If written submissions are to be had then they should articulate the full arguments. Of course, they should strive to be as cogent and concise as possible. The oral hearing should be confined to only clarification or emphasis. It should avoid any attempt at articulation. Judges that read the submissions prior to the hearing should be apprised of our arguments before we even open our mouths. The hearing should not be an oral version of what they read. It should be confined only to either the judges’ queries for counsels and in the absence of that, each counsel has half an hour to emphasize whatever point they want to make. In this setting, a judge is encouraged to take the lead approach by putting their queries to counsel at the start as I have seen some do. I remember the once and only time I appeared before Justice Hasan Lah who chaired an appeal hearing in which I was for the accused appellant. His lordship began the appeal in this vein: We have read both your submissions. The appellant’s argument is [summarizes our argument]. The respondent’s arguments is [summarizes their argument]. Correct? [We both nod at the same time] There are two issues that we would like you to address us on. The first is … [proceeds to put the two issues to us]. We addressed the judge’s questions and we were done. The hearing took less than half an hour. What I liked about the judge’s opening was the summary of our arguments at the start. That was a clear indication that our
