The Singapore Law Gazette

Will You Be a Master or Technician?

There are many different categories of lawyers but all of them are one of two types – they are either a master or a technician. These types are determined by their mental approach to work, not by their particular discipline or qualifications or years of experience. It might be useful to be aware of these types early in one’s career rather than stumbling on the distinction years later. Being aware of these types should help develop a thought process to apply to every situation, familiar or novel.

At least two attributes differentiate masters from technicians – master applies principles rather than rules, and are issue-driven rather than process-driven. Technicians may be technically competent but apply rules without discerning the underlying principles, and simply follow a process instead of understanding the purpose of the process and being able to use it or rise above it when appropriate.

Technicians are limited to familiar situations – those for which they have been trained or have encountered before, or to which the rules and the process clearly apply. Masters are able to draw on fundamental principles to deal with novel situations not catered to by the rules or the process.

Admiral Lord Nelson was a true master, and his approach to naval battles can be applied to the law. The orthodox naval tactic at the time was for each opposing fleet to sail in a single line past the other, firing broadsides as they went, and then circle round and repeat until one was defeated, exhausted or departed. This tactic had an advantage in controlling the fleet but was primitive in that it relied on one side simply bludgeoning the other into submission, and was rarely decisive between fleets of similar sizes. The line of battle looked like this:

Nelson built on the tactic used by Admiral Rodney in 1782 of cutting the enemies’ ship by sailing across the line in this way:

The effect of cutting the line was to expose the vulnerable stern of the opposing ships and to break their line so they were in disarray. They could then be encircled and defeated individually.

My purpose here is not to glorify war but to illustrate Nelson’s mastery in putting issues over process and in applying principles rather than rules. The process and the rule were to engage only in line of battle tactics and try to endure longer than the opponent. It would almost certainly have resulted in yet another stalemate, the English not having won a victory by this method in the century before 1782. Instead of following that established process (for which he would not have been criticised), Nelson was driven by the issue of splitting the enemies’ line and separating ships from one another. He applied the principle of divide and conquer rather than the rule of the battle line.

Issue Driven or Process Driven

Legal practice is replete with processes, both on the transactions side and in disputes. It is easy to become subsumed by the processes and to lose sight of the real issues at stake and the required outcome. It is also relatively easy for most to become proficient in the processes, more or less. When we become competent in the processes, we have become a technician. We become a master when we are able to use the processes properly to concentrate on the issues which will achieve the necessary outcome. We control the process rather than the process controlling us.

Litigation and arbitration are prime areas for the process to overtake the issues and the outcome. They both have very established procedures which must be followed, and there can be so many documents that the decisive issues are overwhelmed by potential relevancies. There is a tendency to mechanically complete one stage of the process and then simply move to the next stage, for example form pleadings to discovery, and then mechanically undertake that stage.

To be a master, we need to focus on the issues in each part of the process and not allow that part to overtake us or obscure the issues. We can draft a beautiful set of pleadings or undertake very thorough discovery, but if we have lost sight of the issues it is likely the process has consumed us. This is particularly the case in litigation where the issues are all-controlling. Mildren J in an Australian Supreme Court said:¹Hunt v Collins Radio Constructors Inc [1996] NTSC 96 [29], citing Horne v Sedco Forex Australia Pty Ltd (1992) 106 FLR 373 379-80. Whatever a court’s attitude to amending pleadings, it would agree the controlling role of the defined issues.

The pleadings are not just scraps of paper which the parties and the court are free to ignore. Their purpose is to define the issues between the parties and to control the admission of evidence at the hearing. If it is desired to raise new issues, the pleadings must be amended, and the court ought not to decide new issues unless they are incorporated into the pleadings.

Discovery in disputes is a classic stage for the process to take control because of its size and, to be honest, often tedium. A young lawyer conducting discovery noticed that a claim had been made by the other party on its insurer. He pressed for discovery of the claim form and was refused, with apparently good reasons. He sought and obtained a hard-fought order for disclosure of the form, and shortly after the disclosing party offered to settle on reasonable terms. It would have been defensible in that situation (more complex than described here) for the young lawyer to have “completed” the discovery process without pressing for the claim form, or for surrendering after the other party’s refusals. Instead, he was issue and outcome driven rather than process driven.

A different lawyer took over a case where discovery had been “completed”, where the allegation was misrepresentation or the size of a property on an auction advertisement. There was no doubt the size was incorrectly stated on the advertisement and the proceeding was being defended on other rather unpersuasive grounds. When the new lawyer took over, she noticed that the copy of the advertisement provided by the plaintiff in discovery (and not questioned by her predecessor) was just one page, that two properties were described on the page but at the top it said:

It seemed to her that there might be more to the advertisement than had been discovered and she called for an inspection of the original (not usually done in that jurisdiction unless trust was lacking). On inspection she found that there was indeed a reverse side to the advertisement describing the other two properties, and with these words at the bottom:

She amended the defence to include the errors and omissions clause which went to the heart of the claim, and soon after settled for less than the plaintiff’s costs, and about one-hundredth of the amount the plaintiff was claiming.

These examples are more than mere thoroughness. They show a focus on the issues which will deliver the right outcome rather than being concerned only to get through that stage of the process.

Disputes is not the only area in which this can happen. Transactions involve an established process even though it may not be prescribed or controlled to the extent it is in disputes. Negotiations typically take the process of each side marking up the draft contract and sending it to the other side. It is very easy to be caught up in that process and simply respond to the proposed amendments – positively or negatively – without stopping to consider the real issues in the transaction. Due diligence in transactions can suffer from the same problems as discovery in disputes. Wading through a large volume of documents can numb the mind and dull the sight until the real, decisive issues are lost.

A good practice in both transactions and disputes is to make a list of the real issues and keep it in a prominent place for each matter. The very task of making the list forces us to consider and properly identify the issues, and at the same time raises the importance of the issues in our mind. Our minds focus on what we tell them is important, and the act of making the list performs that function, not only for that matter but for all. By making the list, we have told our mind that issues are important every time. At the same time, we can be careful that making the list itself does not become merely part of the process.

Principles or Rules

Justice Gummow said:² Hon Justice WMC Gummow AC, Equity: too successful? (2003) 77 ALJ 30.

The most significant effects of good law teaching are often the most delayed, manifested decades later when the former student assumes judicial office. The most difficult questions that come before appellate courts in the end and more often than not are to be answered by recourse to basic principle. A sense of basic principle, if not instilled at the outset of a legal career, is rarely later developed.

Lawyers love rules. For every situation possible they like to create a set of rules to apply to make practice easier and more certain. As the Scottish Law Reform Commission said in 1981:³ Cited by Brennan J in Norbis v Norbis (1986) 161 CLR 513 at 537.

The result of a system based on unfettered discretion is that lawyers cannot easily give reliable advice to their clients. Clients in turn feel dissatisfied with the law and lawyers.

Rules are useful provided the principles underlying the rules are not forgotten, but they frequently are. Appellate courts have warned against guidelines “hardening into rules” and of those rules being applied slavishly at the expense of the underlying principle. Brennan J of the Australian High Court said:⁴Norbis v Norbis (1986) 161 CLR 513 at 537; see also Bropho v Western Ausrtralia (1990) 171 CLR 1 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ at [12]; Oshlack v Richmond River Council (1998) 193 CLR 72 per Gaudron and Gummow JJ at [35]; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 generally (particularly French CJ at [9]-[34]).

It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the Parliament intended.

Part of the problem with merely applying rules without regard to the base principle is that the rules rarely give full expression to the principle.

Speaking of the judicial explanations of when a term will be implied into a contract, Lord Hoffmann said “There are dangers in treating these alternative formulations of the question as if they had a life of their own”.⁵Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988 at [22]. Kirby J said of the various tests for recovery of pure economic loss in tort:⁶Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [235].

One by one these attempts, by single or multiple verbal concepts, to encapsulate what was intended when the law imposed a duty of care, collapsed under the demonstration of the inadequacy of the propounded words to perform all of the functions expected of them.

In Australia a rule developed in the lower courts that any car which hit another from behind would be liable, regardless of the situation. This was based on the road rule that vehicles should travel far enough behind others to be able to stop if necessary. Hitting the car in front proved that rule had been broken – res ipsa loquitur.

Eventually a case reached the High Court where a car travelling on a country road at night rounded a bend and hit a car unexpectedly stopped on the road. The courts below had applied the rule and found the travelling car liable. The High Court criticised this rule and its application, and instead applied the ordinary principles of negligence to find the stopped car liable.

As with being overtaken by a process, it is very easy to develop and then unquestioningly follow a set of rules. Rules make busy, stressful practice more manageable but they can lead astray if their informing principles are ignored.

Examples of this phenomenon abound in judicial discretions, such as granting security for costs in litigation. That discretion is unfettered but over the decades courts have dealt with different situations in which security has and has not been granted. Periodically, a court will review the cases, summarise the instances security was and was not granted, and extract the factors when security will be granted. That list of factors will be referred to by practitioners preparing applications and courts considering them, with the natural result of becoming seen as rules if not checked and if the foundation principles are not recalled.

Lord Neuberger PSC (Lords Sumption and Hodge JJSC agreeing) was aware of this tendency and resisted stating a simple test for implication of terms in Marks and Spencer plc v BNP Paribas Securities Service Trust Co⁷ [2009] 1 WLR 1988 at [22].and instead said:

In my judgment, the judicial observations so far considered represent a clear, consistent and principled approach. It could be dangerous to reformulate the principles, but I would add six comments on the summary given by Lord Simon in the BP Refinery case⁸BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. as extended by Bingham MR in the Philips case⁹Philips Electronique Grand Public SA v British Sky Broadcasting [1995] EMLR 472. and exemplified in The APJ Priti.¹⁰The APJ Priti [1987] 2 Lloyds Rep 37. Emphasis added.

Extra work can be required to discern the principle behind the rules, and occasionally there are conflicting principles such as those informing the security for costs discretion of access to justice and that access working injustice.

Summary

Time spent in identifying and pursuing issues rather than merely following a process, and effort spent in detecting and applying principles rather than mere rules, will be repaid many times over in developing an approach that can cope with any problem, from the common to the unique.