The following was the Opening Address delivered by the Honourable Judicial Commissioner Choo Han Teck on 12 May 2001 at the Conrad-International Hotel.
Socrates began his final address to the jury in his trial with these words:
What effect my accusers have had upon you, gentlemen, I do not know, but for my own part I was almost carried away by them; their arguments were so convincing. On the other hand, scarcely a word of what they said was true. I was especially astonished at one of their many misrepresentations: the point where they told you that you must be careful not to let me deceive you, implying that I am a skilful speaker. I thought that it was particularly brazen of them to have the nerve to tell you this, only just before events must prove them wrong, when it becomes obvious that I have not the slightest skill as a speaker - unless, of course, by a skilful speaker they mean one who speaks the truth. If that is what they mean, I would agree that I am an orator, and quite out of their class.
I cannot agree more that - in all manner of proceedings, truth is the big stick. Truth goes a long way to transforming the meekest of speakers into the greatest of orators. However, Socrates was condemned as charged and sentenced to take his cup of hemlock which he did ever so valiantly. But he might well have been acquitted had he been better trained in the art of advocacy, or retained one who was so trained.
Success in court depends on many factors, but in this short address I will only concern myself with the two principal ones that are within the advocate's control - preparation and execution. The manner in which he prepares and performs his task is the measure of the advocate. The effective advocate is multi-persona; he must be an artist, a detective and an economist.
To the lawyer who plans to paint a masterpiece in court, may I suggest that he has got it wrong. The masterpiece must be painted in his chambers before the trial begins. The real objective in court is to paint a reproduction of that masterpiece. All too often counsel proceeds to paint what he describes as 'The Last Supper' but the promise of grandeur, rich tones and firm lines goes unfulfilled; and the result will probably be more appropriately titled 'The First Mess' - the 'Second' usually follows on appeal in those circumstances.
What is 'Location! Location! Location!' to the real estate agent is 'Evidence! Evidence! Evidence!' to the trial lawyer. It is a fine advocate who is also a writer - he must, of course, adopt a novelist's fine prose, but not the fiction that he creates with his imagination. The advocate works, instead, towards establishing his case through the only means available - the gathering and interpretation of evidence. Facts are what the judge finds in the palette of evidence. In the courtroom, facts can only be established by evidence. Thus, the advocate needs to cultivate a bloodhound's nose to sniff out evidence. He has to ponder over every document, every word his witnesses tell him and find where one leads to more.
The economist is a man who figures out how to maximise the greatest returns for minimum outlay. The advocate must not only be an economist in this sense, but also the most precise and parsimonious one - remember the chief principle in Ockham's Razor - 'What can be done by fewer is done in vain with more' (non sunt multiplicanda entia praeter necessitatem). Counsel ought not to present one word less or one word more than his case requires. I hold this to be one of the strongest tenets of good advocacy - that the advocate must not only have a penchant for words, but also the ability to economise them. How often it is that we see a case flounder merely by counsel asking one question too many. The simple maxim is, 'When you have achieved what you need, STOP!' A gilded lily is likely to wilt by the weight of its adornment. Paradoxically, an economy of words is impossible where there is economy of thought. Sometimes counsel goes on and on only because they have not mapped out precisely what evidence they require. Thinking, I believe, is one word that should never be punctuated by a full stop - counsel must think on his feet as well as on his seat. All too often we are distracted by the marvellous performances of those who excel on their feet that we fail to appreciate that it is the detailed and profound study of the evidence, outside of the courtroom, that lays the essential foundation.
As you assimilate the instruction which you will receive in the course of this workshop, I will urge you to keep constantly in mind not only how you may effectively cross the hurdles of the admissibility of evidence, but also how evidence is processed after it is admitted. Only when you appreciate the relationship between evidentiary regulation and the evaluation of evidence will you understand how a case is best prepared, what it is that you need to address the court and, finally, how to go about doing it. It is partly this lack of understanding that we hear the constant chanting of 'Subramaniam's case' whenever an objection on the ground of hearsay is raised.
Thus, it is only after one has fully understood and mastered the process in which evidence is presented to the fact-finder that the mind is free to consider the strategy and tactics to be employed; and after that, one's attention can then turn to techniques. Techniques concern the way questions are formulated and the manner in which they are delivered; would you say, 'Was the knife in your hand when Mr Tan said the first angry words to you?' Or 'You reached for the knife as soon as you heard the first angry words from Mr Tan!' Or 'When Mr Tan said those angry words to you, what lay on the table in front of you? Did you notice it then? You then grabbed that knife immediately, didn't you?' Such are the details which every advocate must dedicate a great deal of his time to think about. But for my part in this Opening Address, let me revert to the big picture.
I was advised that this course was designed for advocates of less than five years standing. It is, therefore, reasonable to assume that most of you are not much older than 30 years of age. How wonderful it is to have so much time ahead of you. But you must not squander it. Every minute ought to be put to good use. Those who speak of killing time often overlook the irony that it is time that is killing them. The greatest service I can do for you is to incite you to plunge deep into the world of scholarship. There is no boundary, no syllabi, no restriction or classification and, more importantly, no end to the learning.
I will expend a few words to explain why I think it necessary for lawyers, especially trial lawyers, to busy themselves beyond the black letters of the law, to advance beyond the rules and regulations, the standard forms and procedures, shallow expressions and cursory effort. A trial is the process designed to apply the rules of law, as nearly as possible, as the rules of justice. Rules are transparent and are almost always readily open to interpretation with little difficulty; but that word 'justice' is wearisome as it is inspirational. It defies definition but the bid to define it must be inexorable. Why? Because people come to the courts not to find out what the law is, but to ask that the problems and difficulties that beset them be lifted from their shoulders. They ask for what they believe is rightfully theirs - that they will not be wrongfully deprived. All this they exhort according to what they regard, in their lay minds, as 'justice'. The system turns them to you - the trial lawyers - and you, in turn, come to the courts and plead the cases of your clients. You, the courts and the witnesses thus become embroiled in the cauldron of trial. Are you ready? Are you equipped? Are you competent?
There may be no complete answers in court, nor even the certainty of justice whatever we conceive it to be. But there can be, and must be, sincere and profound effort by all its participants to do what is fair and reasonable. To this end, you must acquire the skills to perform your tasks, and develop the strength of character to wield those skills beneficently. More importantly, the character an advocate must have is stability as its base, free from the grip of emotion, free also from the persuasion of fashion and fortune. Yet it is important that one becomes so detached from reality - the good and bad that swirl around him everyday - that judgments that ought to be derived from common wisdom become, instead, tragic folly. How then does one keep his balance in the face of such conflicting demands? Experience is a sure way, but it can be costly. The answer, in my view, lies in literature. Read wide, read deep. Fasten yourself to the mast like Odysseus so that you can hear and experience the song of the sirens, yet not be swayed by it.
The richness of human character is fully exposed in all good literary works. While history tells us what has happened, literary works tell us what might happen and so prepare us to meet what might be. What is the resemblance or dissimilarity of fiction to life? There is none. Fiction is life; life is fiction. Do you regard it a farce and pure fiction when the widow, Mrs Bardell sued Mr Pickwick for breach of promise to marry and succeeded even though neither testified? Do you find it incredible that having won her case Mrs Bardell was unable to enforce her judgment because the wealth of Mr Pickwick, being in the form of securities, could not be touched in law? But that was fact at the time Dickens wrote The Pickwick Papers!1 What else can we see? Meursault shot dead an Arab in the Albert Camus novel, The Stranger; what motivated him, what excuse had he that is not dissimilar to some of the clients you may be or have been called upon to represent? The big questions raised there arise in real life. Good literature, says Martha Nussbaum,2 'inspires distrust of conventional pieties and exacts a frequently painful confrontation with one's own thoughts and intentions. One may be told many things about people in one's own society and yet keep that knowledge at a distance. Literary works that promote identification and emotional reaction cut through those self-protective stratagems, requiring us to see and respond to many things that may be difficult to confront - they make this process palatable by giving us pleasure in the very act of confrontation.'3 One must be conscious of the ways of the world, and be sensitive enough to discern the general from the particular, assumption from fact and the reasonable from the absurd.
Only when the mind is so tuned will it see the big picture. At this point, it is worthy to remember that the emphasis on seeing the big picture is not an invitation to ignore details. Far from it. A good advocate must be meticulous. He must have an eye for detail. They are vital because they give substance to the big picture. Anyone who has read Remembrance of Things Past4 will appreciate the author's vivid and meticulous description of events and places and wonder how much one can see if one will. My message here, is that there is a macro perspective to the advocate's trial preparation, and that is, to prepare himself; not just for the one case, but for cases to come.
No one who is involved in the presentation or hearing of a trial can afford to do so without an objective mind. Objectivity is couched between the twin pillars of neutrality and impartiality. But neutrality and impartiality are not qualities confined only to judges. Although an advocate is, by clear inference, a partisan he ought to, nonetheless, embrace these virtues in order to see the big picture, in which his client and his case are but only parts of the sum. Therefore, in conclusion, I will express my belief that the skills and stratagems that you may quickly learn from practical courses, such as this, must be exercised by a mature and profound mind if you desire to do justice for your client. You will keep constantly in mind that in all that you do, you must exercise your own professional judgment and not that of your client's, because you are a representative - not a delegate. Your client instructs you and briefs you on the facts; but you must decide what arguments to make of them. You must do your part and not rely entirely on the court to do the right thing because the court, like you, is only a part of the larger sum.
I wish you all a profitable session.
Judicial Commissioner Choo Han Teck
The Supreme Court of Singapore
Endnotes
1 William Holdsworth, Dickens as Legal Historian
(1928) ch 4.
2 Professor of Law and Ethics, University of Chicago.
3 Poetic Justice (1995) Beacon Press.
4 Marcel Proust.