The Soul of a Litigator
Litigation is a drag these days. For the most part. A primary reason for that is regrettably my colleagues at the bar. Not all of them, of course. There are competent and credible ones who are also reasonable, fair and pleasant. But they are like Malaysian public holidays: they exist, they are celebrated but there’s never enough of them. My sense of it is there is a widespread misguided idea of what it is lawyers do. It stems from a severely impoverished and undernourished understanding of what legal practice is about. There is an idea popular with the general public that an uncompromising, unreasonable, obstinate, and aggressive lawyer is necessarily an effective or good litigator. Lawyers are there to ‘fight’ any and everything on their client’s behalf until the bitter end no matter how unreasonable. A ‘good lawyer’ facilitates them having their way regardless of whether the law and ethics permit it or not. A lawyer is merely a professional instrument used to manifest our client’s worst urges and sentiments in the legal arena. The ‘ingenious lawyer’ is one that can get his client in and out of anything. I don’t have an issue if that is what the public thinks. Popular depictions of lawyers in the entertainment media have long distorted what it is lawyers do and how we go about it. My concern is when this belief is widely held by practising lawyers. I litigate at all court levels and regrettably see this belief being expressed too often. These days, it is common to encounter lawyers who do not simply attack the opposing case, but the lawyer as well. Zero professional courtesy. Paegentries of pedantry. Not even the illusion of mutual respect. Opposing any application no matter how uncontroversial. Actively antagonistic at every opportunity. Proactively adversarial and bitterly as possible. Lighting up feuds. Refusing to compromise on things that can be. Devoid of reasonableness, grace or fair play. Filing frivolous applications. Applying to recuse their colleagues at the bar for no good reason. Reneging on verbal promises or assurances. Disputing the authenticity of letters issued by members of the bar. Asking for an extension of time but refusing to return the favour. Ambushing. Summarily accusing a colleague at the bar of lying and misleading the court without basis whilst actually misleading the court themselves. I could go on and on about how mean we can be and are to each other. I call all that drama. Maybe some are unaware of this, but litigation practice does not need drama for it to be litigation. No one pays us for drama. We, as lawyers, shouldn’t be having our own parallel drama. There is enough drama in the facts of the case. In fact, litigation is a thoroughly pleasurable experience when there is no drama. Those drama practitioners could be called drama queens at the bar. It sounds catchy, but I prefer to call them the Legally Qualified Pariahs (LQP). I know it sounds harsh, but really, it is a pittance compared to the amount of misery and ruin these fellas cause to the litigation experience. LQPs have all the trappings of a lawyer. Their annual certificates, practising certificates, and professional indemnity insurance are in place. They have the black and whites, collars and bands, and robes. They have the office, staff and cases. They have their firm registration certificates. But really, they are LQPs. You can tell by now that I do not consider these LQPs lawyers never mind litigators. To me lah-ha, they lack the Soul of a Litigator. And the Soul of a Litigator is sportsmanship. Sportsmanship is an aspiration or ethos that a sport or activity will be enjoyed for its own sake. This is with proper consideration for fairness, ethics, respect, and a sense of fellowship with one’s competitors. A “sore loser” refers to one who does not take defeat well, whereas a “good sport” means being a “good winner” as well as being a “good loser” (someone who shows courtesy towards another in a sports game). Wikipedia As a tennis player, when my opponent hits an outstanding shot to beat me, I applaud him and his winning shot. When I smack a winning shot down the line my opponent does not call it out to spite me but congratulates me on a good shot. If we have a cramp, we help each other out and make sure we are okay before we play again. When we lose, we say, Good game. When we win, we say, Well played. We shake hands. No hard feelings after. It’s over except for a wish to do better against each other next time. Most of us that play sports are like this. That is sportsmanship. That is how litigation should be and can be. I know this because I have had such opponents before, those that had a soul of a litigator. Those cases were an absolute pleasure to conduct. No drama. No needless applications. No underhanded machinations. Agreeing to uncontentious applications. Mutual respect and courtesy. All the focus was on the facts, the law, and the court and doing the best we could for our respective cases. In sum, conducting litigation in the best tradition of sportsmanship. The soulful lawyer would begin by trying to reconcile and negotiate. In other words, to settle. People (which include artificial people) have a dispute. What that needs is a resolution, not a conflagration. We want the dispute to go away, right? We start by making the dispute narrower and smaller, not wider and bigger. If we cannot resolve that disputed bit between ourselves, the courts are there to resolve it for us. Lawyers are hired because we advise about the law and present a dispute in court for others. Because of that, we are naturally the first opportunity for resolution as well. That is precisely what the law encourages. This was expressed in relation to ‘without prejudice‘-titled-correspondence or communications in the following: From these cases it seems to me
