Analysis of Pleadings
As a litigator in Malaysia, if there is one trait we must possess, it is adaptability. Besides the constant sea changes to court processes, case management and court demands, and usual deadlines, we must also contend with the occasional unique legal innovation imposed on us which finds no source in tradition, custom or practice, or the Rules of Court 2012 (the procedural rules for matters in the civil court). One legal innovation that was the dread of every lawyer in Kuala Lumpur from 2005 to 2010 was the Analysis of Pleadings. Only one court implemented it. Despite the zeal with which it was implemented in that one court, no other court in or out of the country adopted the practice. Not even the immediately neighbouring courts thought it a legal innovation worth adopting. In retrospect, it was a good thing the legal innovation was localised. It appalled the senior lawyers. It traumatised the young lawyers. After it was implemented some senior lawyers refused to appear. Some told me they either declined the brief or instructed the case to be withdrawn and re-filed so another court would hear the case. My junior colleague who once attended without me for case management returned from that court in tears. And she’s a toughie and resilient lady. Government lawyers of weak fortitude refused to appear and begged their senior colleagues to take their place. That happened in my case. We acted for Plaintiffs who claimed they were illegally arrested and detained by the Kelantanese forestry department and police. The defendants, had a succession of federal counsels (i.e., government lawyers that appear in civil cases) appearing until they managed to find a gentleman of pleasant manners, a jovial face, warm bearing and an ability to absorb a huge amount of abuse with aplomb to take over. He was the classiest senior federal counsel I ever met. So what was this legal innovation called Analysis of Pleadings? ‘An analysis of the pleadings ought to reveal facts that were disputed and facts that were not disputed. Counsel should also have verified the evidence that the parties intend to rely upon to support the facts and, set out a list of issues that could be determined by way of submissions only and those that required a trial.’ The legal innovation wasn’t so much that there had to be this thing done – analysis of pleadings. An analysis of pleadings would happen as a matter of course if we bother to read the cause papers i.e., the statement of claim, statement of defence, etc. After reading, the agreed and disputed facts should become obvious. The main and secondary legal issues in play and the evidence required can be estimated. The legal innovation lay in requiring counsel for the respective litigants to prepare a table combining the statement of claim and statement of defence which was called the Analysis of Pleadings. Imagine a table split into two. The Statement of Claim on reproduced on the left. The Statement of Defence is on the right side. The idea was to put them side by side so we can see how the defendant responds to each paragraph of the statement of claim. Each paragraph in the SOD had to correspond to each paragraph in the SOC. The other innovation was this, the evidence for each paragraph had to be stated under each paragraph of the pleading and the lawyers were supposed to verify its truth. The consequence of this was that if the evidence was found not to be true, the lawyer can be accused of lying to the court. That’s what we were warned about. All the time. The trial would not proceed until and unless this Analysis of Pleadings was prepared and completed to the satisfaction of the judge. The Analysis of Pleadings determined how much trial we needed to have because it would reveal the narrow area of dispute. The Analysis of Pleadings in the judge’s assumption would necessarily result in a majority of the dispute being resolved by the mere application of such an analysis. There was no tangible precedent for us to use. We had to figure out how to prepare it based on his court utterances, declarations, his critique of our Analysis of Pleadings and that of others. And that was the problem. No one seemed to get the Analysis of Pleadings right. I don’t know anyone who did during my time. I know of this because I had one case in that court. Despite the numerous case managements, over a year and a half, I attended with my colleague (except that one time), and the senior federal counsel, we never seemed to get the Analysis of Pleadings right. We were no genius, but I do know we were not so stupid as to keep getting it wrong over such a long period of time. This wasn’t rocket science. Somehow, there was always something wrong with ours. This was not in. That was not enough. Those should have been in. Of course, there were all the attendant stinging verbal slings and arrows to go along with the critiques. However, the judge did not write down any of the critiques against our Analysis of Pleadings. I always wondered how he remembered what directions he gave at the previous case management. Our only consolation was no one seemed to get it right either and suffered the same fate as us. And that we only had one case in that court. The case management I remember most was our last. We had gotten the Analysis of Pleadings pretty close to what the judge wanted by then. Or so I thought. I was determined to get the case to trial and was exhausted by the many rounds of doing up the Analysis of Pleadings. My colleague and I could not escape the sense of dread every time we had to go for case management about the said analysis. Our case was called up first that day in a court
