Rustling Through Tea Leaves
This article looks back to the changes to the way law was practised in the days before the technological boom. The way we work will always keep changing.
The name for that is progress; but we have never experienced so vast and rapid changes as we have in the past quarter of a century. This article is a reminder
That we must not resist change, but at the same time, we must be mindful of the greater and deeper impact that change brings in each instance.
Lawyers in 1819 might have better knowledge of the history of the common law. They might have learnt more studiously of the tyranny of the forms of action, which would have been to them, recent history. There was a time, when a plaintiff who wished to sue in trespass, debt, and detinue would have to file separate claims using a different form. The term “detinue” is hardly understood by the modern-day lawyer, much less assumpsit, for we have now the modern law of contract and unjust enrichment to occupy our imagination when considering monetary claims. The old courts of the King’s Bench, the Court of Common Pleas, and their respective jurisdictions made small fortunes for those who know their way around this common law labyrinth. The insistence on the correct forms, naturally created injustice in many cases. The Court of Chancery was the answer for it was a court of equity to remedy the defects of the common law courts. We can only try to imagine lawyers and their clients scurrying to and fro from one court to another in search of justice and recompense. Even so, English lawyers who came to Singapore after 1819, had many more decades to go before 1873, when the Supreme Court of Judicature Act in England created the merger of the common law courts and the Court of Chancery into the High Court of Justice. The same river carrying the waters of the common law and equity thus flowed all the way east.
Two hundred years later, today, in Singapore, a very different animal exists. It has the exoskeleton of the common law, but its innards have evolved. Evolution as we understand it, is nature’s way of achieving efficiency by accretion. 2019 is a fascinating year to examine this new animal, not because of any specific event other than the nice rounding of the two centuries since a representative of Her Majesty’s common law set foot on and founded Singapore. If we were to re-examine how our legal system has changed and how far into the future our vision may be, we must first appreciate that at this point, we have a small, dwindling batch of lawyers who have been in practice since the 1970s and 1980s, and perhaps an even smaller elite of tough ones from the 1960s. These older lawyers and their sense of self-deprecating humour will permit me to refer to them as Dinosaurs – just for the purposes of identification. The younger lawyers from the generation after that are commonly known as “Millennials”. I shall use the same term not to praise, disparage, or examine the meaning and qualities of Millennials, but merely to identify them as lawyers who were born after 1990.
In the age of the Dinosaurs, real properties were transferred from vendor to purchaser through the conveyance of a title, evidenced by a Title Deed, drawn up in the lovely handwriting of the lawyers and sometimes by their clerks. The Title proclaimed that the vendor was the owner of the named property and the deed evidenced the transfer of title to the purchaser. The transfer would then be registered with the Registry of Deeds. The registered deed then formed a record of the latest ownership of the property. The lawyers for the next vendor and purchaser would have to deduce title before they could complete the transfer. Deduction of title was a quaint term for checking the title of the vendor, not just the one whose title was registered at the time, but to trace the title of the person from whom he obtained his title, and so on, until the source of origin was duly established – each transfer might have come in a bundle of its own, so deducing a title could involve checking through numerous bundles. We still admire such quaint legal documents today, and in addition to marvelling at the calligraphic skills of lawyers of those days, there were revenue stamps affixed on the deeds to excite philatelically interested solicitors. The old form of transfer of title has since been swept away by the Torrens in the Land Titles Act.
Unlike the grass-chewing species of the Dinosaurs, a more predatory specie prowled the courts, grunting “Yes M’Lord” and “As it pleases you M’Lord”. Many will recall that judges and lawyers wore wigs in court. By the early 1980s, only judges, the prosecution, and David Marshall, the last of the defence Dinosaur, continued to wear it. The wigs disappeared completely by the time the Millennials began to learn to walk the earth, that is, when they were toddling around.
Dinosaurs were practising at a time even before the advent of the word processor. I should explain to Millennials that the word processor is not a laptop. It is like a half-cocked computer that cannot be carried about. It is just a rudimentary version of Microsoft Word – with no flashy colours. Perhaps I should not have used the word “is”. The word processor came briefly between the time of the typewriter and the personal computer, and has disappeared permanently into the scrapheaps of time. We learnt in the typewriter days to choose our carbon paper and duplicate papers carefully if we wanted clear copies for distribution. Make one mistake, and the typist would have to type the document all over again. Dinosaurs thus learned brevity, precision, and relevancy.
Advocacy then was synonymous with oral advocacy. The adjective “oral” was hardly required. The plaintiff’s counsel began with an opening address, setting out his client’s case with the aim of persuading the judge to think that if there were insufficient evidence to the contrary, the plaintiff should win. Hence, advocates learnt that the art of storytelling was part of the art of persuasive oratory. They learnt not only what to say, but how to say it. Evidence-in-chief was led by the witness’ lawyer asking open-ended questions into revealing the narrative of his evidence. The same lawyer then cross-examined the other side’s witnesses, by means of sharp, leading questions, designed to corner the witness and undermine those parts of his testimony that prejudiced the case for the cross-examiner. Finally, the lawyers closed their respective cases by stitching together all that had gone before, to make an eloquent appeal to the judge, reminding him of what counsel had promised in his opening address, showing the Court how he had made good that promise in the course of the trial, and topping it off with the reasons why judgment ought to be in his client’s favour. When all was done, and judgment handed down, the Dinosaurs would rise and bow plaintively (even the one who had won), uttering, “As the Court pleases”.
Now that the Millennials are in their full stride, having grown up with all things big, at a time where everything they have is bountiful, the legal practice and the system which they have opened their eyes to, are vastly different from that in the land before their time. The catchwords of the present age, speed and innovation, reflect the changes that have come about since the typewriter hit its last stroke. Millennials practise at a time when the email and its countless attachments streak across cyberspace, a term not known in the other era – when space was just space. Speed and innovation do not just feature in law; they are the norms of this life. They have therefore shaped the thinking and culture of those who are nurtured on this broth from infancy, and into this modern brew one ought to throw in the potion known as history, for it contains useful formulae and lessons hidden in its multi-layered form. From the experience of others, we learn when to be a functionary, and when an artist.
Evidence-in-chief today, is adduced by affidavit, and the omnipresent and indelible paper trails (mostly electronic ones) are to the Dinosaurs, a dream come true. In their days, the difficulty of finding a paper trail and the evasiveness of clever liars made cross-examination difficult, but that also saw counsel developing the skill of cross-examination to levels rarely seen today. The e-mail, Google, and the Internet, make it so much easier for the lawyer to find and marshal the evidence he needs, and the facility to craft his closing address to the Court, for that is the moment the great advocates of old lived for – that moment when they rose to their feet and punctuated the courtroom air with their eloquence. The vast array of information available to him before the trial begins enables him to do so much of what he could not do in the past – focussing on known aspects of the case for cross-examination, for instance. Technology enables the lawyer to do much more today, but we tend to understand “doing more” in the literal sense – more actions, more applications, more affidavits, more questions, more words – in short, more of everything save quality. The difference between quality and mere quantity is like having foie gras in a fine dining restaurant and having a slab of overcooked calf liver from a college kitchen. Those who understand “doing more” to mean accomplishing more, will continue the fine work that good lawyers have done throughout the ages, and through changes great and small. What may easily be missed or misunderstood, is that it is not length nor volume that is to be eschewed but verbosity and superfluity.
Epochal changes arrive by the force of necessity and it is futile to resist them if resistance means a refusal to change; but if resistance means embracing them after we have put in place protections against collateral damage, then that must surely be an act that bears the hallmarks of the ablest lawyers through all time, open-minded, careful, and courageous. Not everyone may be involved in bringing changes to the attributes and structures of the legal system, or of practice and procedure; and changes may not concern everyone, or not everyone in the same way. Contrary to many expert opinions, it is almost impossible to make predictions as Tetlock and Gardner explain in their book, Superforecasting.1Superforecasting: The Art & Science of Prediction, Philip Tetlock, Dan Gardner, 2015 Random House. Although it may not be profitable to predict what changes may come, every lawyer will gain when he casts his eye unerringly on the qualities of professionalism, and with a determination of becoming the paragon advocate or solicitor – skilled, confident, and ethical. High up on that list is respect. Respect for the person and respect for the office are not dissimilar. It confers strength to the one who is being respected, and even more to the one who shows respect. It is that thin but powerful line separating law and anarchy. No matter how fast the hurricane of change sweeps in, all these qualities will remain unmoved, even at the vortex, as steadfast as they have been, from the time even before 1819.
|↑1||Superforecasting: The Art & Science of Prediction, Philip Tetlock, Dan Gardner, 2015 Random House.|