The Future of Litigation & Advocacy: Is There One?

In mooting the above, I confess having paraphrased the same from a story told by the Honourable Justice Michael Kirby of the High Court of Australia of an encounter he had with a young advocate in 1975 or 1976 when his Honour was asked about the future of the courts. He was reputed to have answered: 'What makes you think they have one?' Interestingly, the young advocate went on to become the future Lord Mackay of Clashfern, Lord Chancellor of Great Britain, and Justice Kirby was wont, some quarter of a century later, to say that the 1975 rumours of the impending demise of the courts were greatly exaggerated.

One cause for concern in recent times has been the costs of litigation. A recent 'Global Competitiveness Report 2000' ranked Singapore's litigation costs (including the duration of the process and attorney's fees) as the third highest in the world, after Vietnam and Iceland. We have sought in vain to verify these seemingly astounding findings with the source that released the report, and to clarify the methodology of the survey and query its validity and reliability.

The failure of the source to respond to our queries was a grievance to us, and with the settling of the dust, the question that begs to be asked perhaps, is not whether the report is just and accurate - not even whether, regardless of such a report, the legal profession should study ways to regulate or contain the costs of litigation and how can this be done - but rather, the deeper examination of the relevance of litigation in a legal landscape increasingly moving towards alternative dispute resolution ('ADR').

Is litigation and, therefore, the art of advocacy going to be seriously endangered, if not extinct in the near future?

With the recent trend of our newly-admitted lawyers to show a preference for a transactional legal practice, such as corporate practice, project financing or mergers and acquisitions, and with these young fledglings shying away from litigation work, one wonders whether it is only a matter a time before the art of advocacy, which was what used to make being a lawyer so attractive to many of us, will soon be lost, and hot on the heels of that, litigation itself.

Until recently, many jurisdictions around the world assumed that good advocates were born, not made, and the only form of instruction in advocacy was in the school of hard knocks - on the job. As attachment students and pupils, we tagged along with our pupil masters and had opportunities to watch and imitate, or cringe and refrain. As young lawyers, we either rose to the task with all the confidence of a school debater or broke out in cold sweat each time a trial was around the corner, hoping the judge would not stop us midstream with a question. More often than not, we arrive at the conclusion that congenital gifts of intellect are matched but not always accompanied by gifts of oral communication or that thinking on one's feet is no easy feat.

Many books, commentaries and articles, whether by advocates, judges or the academia, have sought to identify the characteristics of eminent advocates: eloquence, powers of persuasion, fluency, language, delivery - explanations for conduct which one is able to spot instinctively as outstanding, but which few can easily emulate without consistent and conscious effort.

In short, a good advocate is one who has, as a primary talent, the capacity to reduce complex matters to the bare essentials by identifying the issues necessary for decision and then being able to present them with precision and style.

Recognising the value of good advocacy skills, not only in young lawyers but seasoned lawyers who wish to hone their skills, the Law Society of Singapore has, since January 1995, run an annual Advocacy Skills Workshop with the object of giving participants an opportunity to observe themselves on videotape and otherwise subject themselves to the constructive criticism of experienced advocates who have received training themselves as trainers, and then re-present their assignments applying the skills they have learnt. The purpose of the Skills Workshop is to help these advocates identify and eradicate obvious mistakes and pick up new skills, after an intensive training session.

With the advent of technology, a new challenge is posed to advocacy. The recent emphasis has been, not so much on the oral, but the written work of advocates. Rules such as speaking in plain English, using short sentences, avoiding jargon and the passive voice are skills which translate well even where the advocate turns scribe. These days, written submissions have evolved from virtually nothing to skeletals to full-blown cases. This has resulted in the inevitable shift from our judges' time spent in the actual hearing of the trial to their Chambers, where they read the written word five times more quickly than if they spend the time hearing oral arguments. Efficiency and speed has become the order of the day.

In this era of high technology, many of us look to technology and its wondrous developments with deep reverence, believing it to be a miracle cure to life's questions and difficulties - which is not surprising as much has been written about how technology can and should, be harnessed to control litigation costs. Our courts here are supreme examples of reaping the best of technology to forward their cause in promoting efficiency, with LawNet, technology courts and now, EFS. Indeed, it is ironic that, in many jurisdictions, law firms are ahead of the judiciary in integrating technology into their practice, but in Singapore, the reverse is true.

Technology comes in so many forms and ways and can meet virtually any need - case management software, imaging technology, electronic storage, transmission, processing and interchange of data, commercial databases, such as Lexis-Nexis and Westlaw, electronic judicial desktops, video conferencing, tele-conferencing, video-text integration, speech recognition technologies, you name it, it is there for the asking. And voila, almost overnight, we suddenly find ourselves in a paperless office.

Where once upon a time the hallmark of a lawyer was the mounts of paper he surrounded himself with, he now only requires a laptop and CDs. Where once he had to lease warehouse space to store his case files, now he only needs a shelf to house discs that span the cases of his entire legal career. Other immediate and tangible benefits of going hi-tech include reduced time and cost spent on research, pleadings and discovery. And of course, the offshoot of all this, we hope, is savings that are passed to clients in the form of lower litigation costs.

Technology is well and good, indeed it is well nigh impressive and downright indispensable. Yet, for all its sophistication and tangible benefits, it cannot work in isolation. It needs to be complemented with the human factor. After all, technology comprises man-made systems and the decision to go that route is taken by man alone.

But we must not lose sight of the continuing role of the courts as a venue for public resolution of serious conflicts - a role that is serious enough not to be replaced by the many options of alternative dispute resolution that the public is now availed of. Publicity is an inherent and essential feature of a court system conforming with a citizen's right to a fair and public hearing by a competent, independent and impartial tribunal established by law. And this right is one that is unlikely to be discarded by society which sees in the courts the role of judicial governance.

Many of us who attended the Law Society's Legal Systems and Technology Conference - an Asia first - late last year, will recall the story, told to us by Professor Richard Susskind (also found in his award-winning book, The Future of Law), of the executives of the electronic power tools manufacturer who were asked at their induction course what it was they sold. When shown a gleaming power drill and asked whether that was what they sold, all readily agreed. But the trainer of the group then shows them a photograph of a hole and corrects them, saying: 'That is what we sell.'

Working within the legal system, litigators, as much as the courts, will do well to appreciate that having in the past been ensconced in our own sheltered world, it is easy for us to become overawed by the tools of our trade when we are experimenting with the new implements: case management, ADR, video conferencing, EFS and the like. But we must keep our eyes firmly fixed on the foundation of our work - to be the best that we can be, without fear and favour and uphold the best traditions of the Bar and the Bench.

The face of lawyering, advocacy and litigation will change. Technology will continue to advance. But, we must never lose sight of the purpose of our craft, which gives us the rare privilege of not just dealing with objective empirical phenomena or ailments, but with real and alive issues of fairness, justice and ethical practices. We are judged not by what we do, but how we do it. We must never let the seduction of the gleaming power drill overbear our consciousness and lose sight of the ends we serve to meet.

In short, we must continue to keep our eye on the hole and any rumour about the demise of advocacy or litigation must continue to remain exaggerated.

Palakrishnan, SC
President
The Law Society of Singapore

Your President Listens Members of the Law Society will continue to have the opportunity to meet Mr Palakrishnan, SC, President of the Law Society, at his fortnightly Saturday sessions at the Law Society's premises between 10.30am and 12noon. The sessions next month will be on 8 and 22 December 2001.