8 Tips: Strategic Approach to Civil Litigation and Writing Impactful Legal Submissions

Guest writer Chua Yi Xin shares 8 key takeaways from the recent webinar by the former Chief Justice of Malaysia, Tan Sri Datuk Seri Panglima Richard Malanjum.

Amidst the chaos of a global pandemic, having access to a mountain of free webinars from experts online is a welcome change. It seems that every other day my inbox is swarmed with links to virtual talks as lawyers move their practice online. However, one stood out among the crowd.

Last Saturday, I attended the Strategic Approach on Civil Litigation and Writing Impactful Submissions Webinar, hosted by the Sabah Law Society with guest speaker Tan Sri Datuk Seri Panglima Richard Malanjum. The 2 ½ hours webinar was well worth the time as he presented in an honest and direct manner, giving us a rare look of the expectations from the Bench.

Here are 8 key takeaways for effective civil litigation and writing legal submissions.

Strategy and Tactics

#1: Maximising your options and advantages

Successful lawyers are creative in achieving their client’s needs. They explore every avenue available, including ADR, to bring resolution to the problem as quickly as possible. This is especially true if settlement saves the client’s time, money and give them peace of mind.

Familiarise yourself with the Rules of Court. Identifying procedural irregularities and defects and raising them early on would cut short proceedings.

#2: What to do before you start drafting your pleadings

Read up on the law and its latest developments and assess the best possible cause of action and relief for your client. Do not stop at the basics but study current judicial thinking on the subject whether local and overseas to deepen your knowledge.

Once you have identified the elements in your cause of action, ask yourself if your case has the necessary facts needed to fulfill them. A good lawyer also considers all defences available and anticipates his opponent’s response. Strategise and focus on your opponent’s weakest and attack at the right time and place.

#3: Case roadmap

It is crucial to prepare a case roadmap and timeline for the trial ahead. This will allow you to identify actions that need to be taken pre-trial and execute them in timely manner. Always ask yourself – what is the solution my client needs and how do we get there? A second opinion may also be useful to help you see the bigger picture.

#4: Trial preparation

Many lawyers pay little attention to case management and assign their juniors to attend case management. In reality, case management is an integral part of a case. How you organise your bundle of documents will ultimately affect your trial outcome. Good preparation will ensure that there are no last-minute interlocutory applications or late submissions of documents that irritate judges. The Bench expects all cause papers to be in order and for counsel to know the details of the case before a trial begins.

Approaching Submissions

#5: Structuring your trial submissions

Written submissions should have proper structure and flow. The intention is to make submissions easily understandable for a third party by using simple, polite and plain language. Refrain from using dramatic words.

Remember to emphasize critical points that work in your favour (bold or italics are acceptable but never capitalise). At the end of each submission, circle back to your conclusion and bring the point home. A good tip is to consider structuring your submissions in a way that will enable the Bench to easily adopt your submissions in their judgment.

#6: Appellate submissions

When making appellate submissions, it is important to hone in on why you think the lower court’s decision is erroneous. Why should the appellate court intervene? Remember that the appellate courts have read your Record of Appeal and formed an opinion of your case before you speak. Start with your strongest argument to catch the judges’ attention and pique their interest.

Always include an executive summary if your submissions are more than 15 pages. When drafting, also consider including alternative relief that may be of lesser consequence to the appellant in the event the appeal is dismissed.

General Rules

#7: Always adopt a time-saving approach

Judges have a massive case load and appreciate when litigators adopt a time-saving approach. Be clear on your agreed facts and issued to be tried to avoid wasting the court’s time by asking irrelevant questions. Objections should be made only when necessary and always appear reasonable and amendable when doing so. Do not be late or risk having your case being struck out.

#8: Court etiquette

Be polite, respectful and humble! Never show your attitude in court as this colours the judges’ view of your character and you will risk having a bad reputation among the members of the Bench. This will not serve you or your client’s interests.

Surprises are not welcome. Any pertinent information should be divulged beforehand and litigators should always strive to be helpful to the court . Never make a misleading statement as the judge will likely not believe you the second time round.

Lastly, be confident! You are your worst enemy. This was addressed to junior members of the Bar in particular who may be intimidated in court.

He delved into many other issues which would be too lengthy to fit into an article but you can watch the full webinar at the Sabah Law Society’s Facebook page.  I do recommend giving it a go to catch our former Chief Justice make references to Better Call Saul, Mark Twain and the Bible.

 

Yi Xin is a pupil-in-chambers in the Dispute Resolution Department of Skrine. She completed her LLB at Queen Mary, University of London and was called to the Bar of England and Wales at Middle Temple in 2019. Genuinely enjoys well-reasoned arguments, solving crosswords and certainly did not choose this profession due to her ineptitude in mathematical equations. Most often seen with a cup of coffee in hand.

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