Rise of the Zoombies
The year is 2020. Decades before this, novice lawyers at the Bar wandered about the office, bright-eyed and bushy-tailed, asking their seniors, “What can I do to help?” Now, there is no office to go to. The seniors are around but they might as well be in hiding. And the question new lawyers often ask nowadays is, “Help, what do I do?”
No matter how the profession changes with the times, the best training for the new lawyers, is still by way of an apprenticeship. Their training is acquired from the mentorship of older, experienced, and wiser lawyers. Much learning comes from the constant contact between the pupil and his pupil-master, terms that sound old-fashioned, but “practice trainee” and “supervising solicitor” sound metallic and lack the warmth of the old descriptions. That, however, is a small matter because titles and descriptions are important just for form. The substance of how to be a well-trained lawyer is still determined by the ageless formula: Get a good mentor; read all you can about the craft of the lawyer; watch the experts at work; and keep practising.
This article is not meant only for new lawyers. Experienced lawyers have to realise that if the profession is going to thrive, they must do their part and help the younger and newer ones. Some experienced lawyers may themselves not have received adequate training, so although they too would need to develop the same skills, their experience may make that process easier and faster – they can then focus on training the less experienced ones.
Law is infused into life in a way that makes it seem difficult to apply like mathematics and science. Numbers are important, but in the kaleidoscope of life, we see colours not numbers. Law is also philosophy. It is also about language. Words are the tools of the lawyer. They expand his intellectual dimensions and are the tools by which he executes his legal tasks, whether in drafting an agreement or in cross-examining a witness, or in persuading the Judge.
In the 1980s (when some of us were in practice), it might take a couple of days for a lawyer’s letter of demand to reach the opposite party. It would take another couple of days for that party to send it to his own lawyer, who would in turn, take a few more days to have his reply reach the first lawyer. 2020 is in the age of Twitter. Words fly at the speed of Wi-Fi. Everyone has to move and work faster. Many things, however, have not changed.
Clarity, accuracy, and elegance are still the substance of any lawyer’s piece of work. Whether one writes 500 or 50,000 words depends on the requirement of the point to be made, and not on an idiosyncratic, pre-determined belief that bigger is better, and the more the merrier.
The first skill a lawyer should learn is to grasp the essence of the problem he needs to solve, and then decide how to solve it expeditiously. The absence of this skill can be seen from some of the submissions that lawyers present to the Court. Closing submissions, in particular, are often filed many weeks after a case has ended because lawyers today cannot seem to prepare them without aid of the transcript from live notes. Whereas, the experienced advocates of past generations know what their closing submissions are going to be the moment they arrive in court on the first day of trial. That was how they were trained.
Knowing beforehand what they will be addressing the Court in the closing submissions will help lawyers chart their way through the trial. They will not then be using the cross-examination as an exercise in discovery. In the intervening weeks before the final submissions arrive at the desk of the Court, the Judge will have heard many other cases. He will need to be reminded what the case in that submission is about. Yet, when he opens the 80-page submission, he finds that the first 40 pages are a treatise on the burden of proof. The facts are relegated to scattered insertions between arguments about the issues of the case and rants against the parties on the other side.
It is now common for lawyers to ask for time to file written submissions. When they finally file their submissions, they seem to assume that the Judges know the facts but not the law. Submissions often start with a lecture note on the law which goes on for as long as 30 to 40 pages. After weeks of hiatus, from the end of the trial to the receipt of the final submissions, the reverse is true. Judges need to be refreshed about the facts, not the law, as the overture in a closing submission. That is what new lawyers need to realise when preparing a draft submission; and their mentors must correct them should they stray.
The death-trap for all lawyers, especially the newer ones, is found in the three fundamental aspects that they cannot afford to get wrong. First, it is crucial to determine who the proper parties ought to be – who should be the plaintiff, and who the defendant. If one acts for a defendant, he has not only to consider a counterclaim but also whether it is necessary to commence a third-party action. Second, the cause of action, and third, the time bar to the action. If any of these are wrong – and they are usually wrong from the start – the action is doomed; from the time the writ is filed, to the trial, the client will be a walking dead.
From the moment he is admitted to the Bar, the fledgling lawyer has much to learn, but he must not be daunted, for the process itself enriches him as a professional. He can start systematically. For the litigation lawyer, he must know and understand evidence and procedure, whereas, solicitors must endeavour to understand the general field of the commercial world and settle down to understand the specific industry in which they practise. In the case of solicitors, the law is not sufficient. He must know how the commercial industries work.
In either case, a lawyer must always develop a strong command of the language for words are his tools of trade. His writing must always be precise and clear. Time changes not only words, but also writing styles. One need only compare the writings of the old philosophers such as Emmanuel Kant and Friedrich Nietzsche and their dense turgid writing styles, with that of modern philosophers such as Simon Blackburn and A C Grayling and how they render difficult concepts in concise and accessible language. In the age of Twitter and Zoom hearings, therefore, precision and clarity are even more critical. We have a deluge of information everywhere we turn. It is the lawyer’s job to peruse them rather than to churn them out without analysis and parsing.
Evidence of the failure to understand precise and accurate drafting is often found in prolix pleadings in which the statement of claim sets out unnecessary pages of evidence and law, when all that is required is to plead the cause of action and the facts which support them – and no more. Evidence will be relevant when the affidavits of evidence-in-chief are filed. Prolix statements of claims only invite requests for further and better particulars because excessive facts, and evidence, rarely tell the complete story, leaving questions for one’s opponents to ask.
Clarity and precision must accompany organisation – the effort to craft a story. It is the combination of these three aspects that makes a lawyer’s submission persuasive. A good story does not require many adjectives or adverbs. In Nabokov’s Favourite Word is Mauve, Ben Blatt studies the works of popular writers and finds that even fiction writers do not often use “-ly” adverbs. Ernest Hemingway used only 67 “-ly” adverbs for every 10,000 words in his book, A Farewell to Arms. Clichés should also be avoided. Blatt shows that Jane Austen used only 45 clichés per 100,000 words, whereas James Patterson used 160 in every 100,000 words of his 22 Alex Cross novels. In court, lawyers often quibble over the meaning and proof of adjectives and adverbs, quarrels that are unnecessary if those words had been omitted in the first place.
It is the untrained and ill-disciplined mind that cannot organise its thoughts and thus presents chaotic submissions. The length of a submission has nothing to do with clarity, precision, and style. When those elements are mastered, the length of the submission takes care of itself.
Hearings and meetings conducted through the Zoom application are likely to continue. Faster and more efficient ways to practise law will continue to be implemented, but with the objective of access to justice constantly in mind. Implicit in that search is the paramount duty of doing justice. And as you venture forth, may the essence be with you.