Easing the delivery of Justice to the nation

How is the delivery of Justice to the nation to be eased? Everyone complains. Suppose someone could say something helpful, for once? Would you heed it?

This missive is directed at those who are at the heart of the justice business, namely: –

The Judiciary;

The Attorney General’s Chambers,

State Legal Advisers of all States,

Judicial and Legal Services, and

Private legal practitioners:-

Malaysian Bar,

the Sabah Law Society,

Advocates Association of Sarawak

The universities–both public and private; and 

Parliament, which makes, and unmakes the law.

Let us call them, ‘Stakeholders’.

The Stakeholders suffer from different illnesses peculiar to themselves.  But some are common.

We tackle them here.

This essay will deal with two categories of malaise:

(1).    Outmoded equipment;

(2).    Lack of knowledge of efficient, but affordable technology.

These suggestions are arranged in a particular order: –

When a person is brought to a hospital, he is given Emergency Treatment.

Then he is despatched to the wards for Recovery and Recuperation.

[There is a third stage: Rehabilitation – that will be dealt with separately.  One thing at a time].

This essay is in that order.

Stage-1 deals with all those matters that can be easily and readily achieved.  If implemented, these suggestions will make a large, and positive difference.  These are tested and tried matters.

Stage-1:      Emergency treatment

Writing ‘speaking’ judgements–‘Dragon Naturally Speaking Premium 13’

A great deal of time is wasted in drafting.  What if someone else could do it for you?

There is a software called Dragon Dictate.

You speak. It types.  Like this.

It is very fast.  And accurate [Click here].

It works on a Mac, or on a Windows PC.

Within 20 minutes of downloading it, you can dictate a thousand-word essay, with about 95% accuracy.

It won’t recognise Asian nouns–but you can train it to. It doesn’t cost very much: about USD95.00.

If 50% out of the 18,000 users at the Bar, and the entire Stakeholders order this on a ‘bulk basis’, costs can be cut down drastically.  Nuance  is the US company that sells the software. The Stakeholders can ask for ‘hands on training’ and after sales service.

This essay is dictated by that software.

My own software is 3 years old.

The microphone is ancient: it is  7 years old.  It works.

What do you think?

Like it so far?  Read on.

Proofing Software: ‘Pro-Writing Aid’ 

Grammatical and syntactic errors mar a good draft.

The editorial corrections that a normal writing software offers is too basic. It is not good enough for formal writing.  Nor does it give suggestions on how you can improve your own writing style.

There is a software called Pro Writing Aid (PWA).  There is also another called Grammarly.  (I  use PWA on a daily basis).

PWA corrects grammar, spelling, sticky sentences, repetitive words, split infinitives, vague sentences, etc [click here].

And how much does Pro Writing Aid cost? It could be as low as USD 50.00 per annum.

Imagine the discount the company will give if 18,000 lawyers asked for membership for a year. Every year you need to pay the same amount.

Bulk purchasing the license is cheaper.

‘Live’ Notes of Proceedings -Microsoft One Note (costs almost nothing)

There is a third software.

It is called One Note.

When you purchase a Microsoft Office-365  licence, they pack it with a slew of other software (Microsoft Word, Microsoft Excel, PowerPoint, andOutlook).  OneNote comes with it.

It has a peculiar quality.

Suppose 10  email addresses are registered with it.  What happens is, if there is a good Wi-Fi, any Notes of Proceedings being typed can be sent–and seen–‘live’ by all.

There is a 3 to 5 second delay, but faster Wi-Fispeeds shorten the time.

Whenever I have been invited to be an arbitrator, I have encouraged parties to use it.  It has been a success.  How much does it cost? For the parties it cost RM20.00 per month!

It is a few hundred ringgit per year.

For that licence you get numerous  other original software for nothing  (Microsoft Word, Microsoft Excel, PowerPoint, and Outlook)).  Each time they upgrade all software, all your software are upgraded, for free.  With all of that comes huge cloud storage space, a real-time ‘share-able’ calendar, plus other good stuff.

At one 3-day arbitration at Munich, the panel of arbitrators had a specialist stenographer flown in from the UK.  She typed during hearings. She was excellent. At the end of the day, we were handed 30 pages of unedited material. But these were not available during hearings. While proceedings were going on, we still had to keep our own notes.  And then we have to compare our notes with her notes in the night.  And our side paid RM14,000.00  for her Notes of Proceedings. With One Note, for 20 days of hearings, it cost far less.  That wasn’t even the cost of the software. That was the cost of two typists.  They were lawyers. They checked spellings and bundle numbers. So they cost a few hundred ringgit a day.

The Courts need this software.

And it is cheap.

Going ‘Paperless’ – Adobe Acrobat

The Judiciary, for the last 10 years, has being trying to go ‘paperless’. Working ‘paperless’ frees up about 70% of real estate. Once documents are scanned and archived, they are easily traced. It cuts down labour costs.

Most law firms have this facility. Documents are scanned and analysed by a software that does ‘optical character recognition’ (OCR). It converts pictures of words into text.

If you typed the word ‘breach’, it will show how many times it occurs in a 500-page document.  Or it can pull up 200 different documents that has that word.

One such is software called Adobe Acrobat.  Arbitrators use it widely.

In a building contract arbitration, searching through 10,000 documents takes only a few seconds.  Otherwise juniors have to be told to carry 20 or 30 bundles on trolleys, and every time someone cites a bundle, everybody reaches into a mountain of bundles in disarray.

When this system is used, and counsel wishes to cross refer documents, a search is made and located within 2 to 5 seconds.

Counsel display its contents on an overhead projector.  Laser pointers are used to draw attention to relevant parts of the document.

Everybody has a PC, an iPad or some similar device.

Most of our senior lawyers and judges are unfamiliar with this kind of technology.  They  can be easily trained.  There are judges who are unhappy unless they write everything down. That can be solved with an Apple pencil! There is software that will then convert their scribblings into text. These are not expensive.

Get your scheduling right! Google Calendar is good–and free

Lawyers waste a great deal of time in court. Everybody turns up at 9.00 am. If your case gets called up at 3.00 p.m., then you wait five hours–usually in a noise trap.  That horrible canteen serves indigestible diabetes-inducing muck.

To save time, hearings should be scheduled by the half hour. If I am to arrive in court and argue my case at 11.30 am, then there is no need to rush all the way from Shah Alam at 8.00 a.m.  There is no need to fight with the security guard to get a parking space.  There is no need to sign attendance at 9 a.m in the midst of palpitations.

And so, each court could use the Google calendar. It is free. It is accessible to all, even litigants. Once a Google mail account is created by a court–in a jiffy–a Google Calendar can be created [click here]. (While that is good enough, there is one with bells and whistles, called ‘Google ‘Business’ Calendar.  It is a paid version. But it is cheap [click here]).

Suppose you are a judge at the Terengganu Sessions Court No.2.  So you create an email address called ‘tgsess2@gmail.com’.

The Shah Alam High Court NCVC 2  will have an email called, ‘sahcncvc2@gmail.com’.  How cool is that?

Every lawyer who comes in for case managements opens a Google account (if she does not have one already.  She subscribes to the Court’s Calendar. There is nothing ‘confidential’ about it. The court clerk creates a Calendar— the Calendar goes on for a year. It can be up to 19 years.  Just saying.  She also creates a Group Email for one hearing week. Everyone who has a hearing  for that week  is on that Group Email.  Repeat for 52 weeks.  One month is too long.  We’ll get too many irrelevant emails.  The email-group is re-formed every week.

In developed nations, spare parts are not stored.  This is expensive. They are manufactured, arrive at the factory exactly when they are needed, off-loaded and are used.  It is called ‘JIT’–‘Just in Time’.

So there is no need to wait for things to happen.  It saves a lot of real estate. In litigation, the real estate is the court’s time.  It should be put to the most ergonomic use. And so courts should design Google Calendars in instalments of 30 minutes (or some other duration).  Each person knows what time their respective cases will be called.  The 9.00 a.m. counsel arrive before 9.00a.m.  If you are late, you forfeit your lost time, unless the court relents.  The rest take their cue.  And counsel adjust arrival time ‘just in time’.

Car parks are vacated. If there is an illness, one writes directly to the Group email. Everyone will knows for that day, that a certain counsel or the judge is ill. The clerk gives an alternate date by email.

Everyone concerned will know when the Judge can hear them, and at what time. You don’t need to rush in to court to find out.

You can even have an Alarm set on the calendar.  Your smart phone receives notification.  It reminds you that the hearing, on Enclosure 55, is a mere two hours away.

If a lawyer is delayed, he sends an email notice.  Then counsel for other cases can ‘step-in’ and ‘take over’ earlier slot; instead of hanging around in court for hours on end. If you are late, you can ask for a ‘Move My Hearing Back’ request.  You can negotiate with the next set of lawyers and ask them to go first.  That is up to you.  But it can be done. We have to create this culture.

As for duration of hearings, counsel will know that they have only 30 minutes.  You don’t need 30 minutes for an interlocutory application.  All the papers are in.  Ten minutes each for questions, ten minutes for explanations, and the judge can either spend that time giving an ex-tempore judgement through Dragon Dictate, or study the next set of cause papers.

If you don’t like 30 minutes, then scale it down to 20, or up to 90 minutes, depending on what you need done.

The point is–there is a definitive schedule of hearings, it is on a public platform, it is free, everyone knows how to use Google, or can easily learn about it, and everyone can work around it.  There is no need for any ‘training’ or ‘kursus’.  Man-hours are saved.

Case Management–Telephone Conference is better than personal attendance

A great deal of administrative work is done by registrars during case management. Two different parties, often one in Penang, and the other from Johor Bahru turn up at Putrajaya, wait for two hours, and then meet the Registrar for about 20 minutes.  They decide on common dates, and are instructed on who is to file what, when, and how.

The CM ‘manages cases’.  It wastes millions of hours.

Yet this is done in arbitration all the time, within minutes. These ‘case management’ conversations are usually last about 40 minutes. One arbitrator may be in London. The other could be in Switzerland. The third would be in Belgium. One set of lawyers may be Munich. The other in KL.

All take turns to speak.

Directions are issued, questions are asked, and doubts are cleared.

It is called ‘telephone conferencing’.

It is cheap.

Land lines are pretty stable, even in Malaysia.

Human resources are not wasted.

There is less travelling time.

And there is no hogging of parking spaces.

What does it need?

Some telephone cabling, and a cheap telephone conferencing console.

And yet, it has not been implemented. Why?

We all need a complete digital library–including textbooks

Most law libraries are stacks of old books.

The law does not live in books.  Law books are maps.  They tell you where to go.

The law lives and grows in the minds of its practitioners. That is why it is said to be ‘organic’.  It grows limbs and develops. It does not reside silently in stone. Or within the pages of crusty old tomes.

A law library comprises two types of material: textbooks on particular subjects; and law journals.  We already have on-line law journals. This is a matter of subscription.

But what about text books?

Shouldn’t the old books be taken out, dusted out, scanned into text files and stored in the cloud?  And if optical character recognition can be effected on them by software like Adobe Acrobat, we can create online textbook libraries.  One entire library sits in Putrajaya in its subterranean vaults, loaded in the cloud.  The servers hum quietly in the night.  From Tawau to Air Itam, all that is needed is a strong internet line of at least 100 Mb.

Everyone gets to use a massive library.  In every state.  So we do not need a library in every city.  A waste of space, time and manpower. We need only an internet line.  And a smart device.

For a subscription, anyone can access such books and have copies of it printed out.

It is cheaper than maintaining a physical library.  It also frees up  real estate. The consumers of the courts, such as litigants, can use it as a resting space.

Bulk licensing of online journals & better quality reporting

The Stakeholders should jointly apply for ‘bulk subscription.’  Leaders of the Stakeholders  should jointly approach service providers and telecommunication companies.  Cheaper rates can be obtained for every practising lawyer. Then no one can say, ‘I cannot do research because I do not have the books’.

Service providers must provide higher quality journals. We need to know how many judgements were dissents; which judges sat in which kind of hearing; and what predilections did they display towards certain kinds of disputes.

In this way lawyers are best placed to ‘persuade’ judges ‘out’ of their entrenched views.

The law will the better for it.

Why aren’t courts ‘mobile friendly’— Free Wi-Fi is a basic service

The courts have to become a ‘mobile friendly’. Our courts should provide free Wi-Fi?

Anything less than 50 MB is considered Stone Age.

So when these facilities are provided, people who are hanging about waiting will have something to do: read their WhatsApp messages or watch a YouTube video or answer an email.  Have you ever been to an airport waiting lounge?  That is how our courts should be.

Cater for waiting people.

Give them something to do.

Encourage ex-tempore judgements–saves time

As far back as 1958, Hidayatullah became a Judge of the Indian Supreme Court.  He delivered ex-tempore judgements. He relied on just a sheaf of notes. That practice should be brought back. When the judge makes an error in open court, counsel will gladly correct the factual errors. It saves a great deal of time. There was a Federal Court judge who used to do it. As did a High Court judge.  I have counted no less than at least 200 such judgements. Some  were in the Court of Appeal.

If our judges are not up to it, they can be trained. No big deal.

There is software that can capture these oral judgements and convert them (later!) into text.  That is different from Dragon Naturally Speaking.

The Court’s processor speed needs to be cranked up!

There is one particular concern that sits between the first and second categories. It has to do with speed of judges and registrars.  Are they not fast? Well, yes.

In one particular case the judge, anxious to obey instructions of the top judicial brass, made everyone wait while she sought the relevant passage in an affidavit. That took all of 5 minutes. Then to another affidavit. Another 5 minutes. When passages in the submissions, or the authorities, or an affidavit, or exhibit were discussed, everything took 5 minutes each. It should have been two seconds each.

So what was a problem? The processor was working at a snail’s pace!

The Judiciary needs a mainframe that is exceedingly fast.

Stage-2:      Recovery

Use Templates–and different sets of templates for different purposes

We discussed of software that deals with writing, grammar and scheduling.

But there is a ‘system’ to legal writing.  There is a pattern. ‘Yang dahulu, didahulukan; yang kemudian, dikemudiankan’:  It means,‘Do first, what needs to be done first; the rest can wait.’

Judges write their judgement any way they like.

Lawyers present  arguments any way they like. They do not like it at all if someone asks them to change their order of arguments.  I have news for you.

Not so in Europe. Ages ago, Lord Denning made adulatory remarks about that system.

There, everyone uses a common ‘template’.  There is an order to the template.

For trial cases, each lawyer sets out no more than three key issues to be tried. He lists his causes of action, and each element of it.  He enumerates such evidence as supports each element. He calls out his opponent’s defence and demolishes or goes around conflicting evidence. He then invites the trial judge to come down on the one side or the other.

Everybody uses the same template. Even the judge. In this way, errors are easily discovered; and mistakes are few: Each issue is listed and dealt with. Each piece of evidence is listed; as is the questions of law: then the answers.

Not so in common law jurisdictions. Lawyers do not like to be told to ‘change’ their ‘order of points’.

So what is in a Template? Remember the phrase:  ‘F-I-L-A-C-R’

We have been speaking of a ‘template’.  What is it, really?

It resides in the letters: ‘F-I-L-A-C-R’.

The ‘F’ stands for relevant Facts would make a difference to the decision.

Then one carefully defines the Issues: usually one, rarely two–never more than three.

The next step is to crystallise the Legal principle. This is done by telling the judge–in no more than 50 words–what question was posed in a referred case, what were its relevantfacts, what was the court’s answer, has it been distinguished, overruled, or commented upon–and importantly, whether the dicta was ratio decidendi or obiter.

The ‘development’ of the principle may require some ‘road-mapping’–all that must be disclosed in the template. [The Template should ask these questions. If the template is a web-form, everyone can to fill it out].

The final, crucial step is to Apply the Lawto the Facts.

That results in the Conclusion.

Having shown the conclusion, one asks for Relief.

One can travel from F to R, or move from R to F. For example, if one is applying for an interlocutory injunction, one has to take the route from R to F.

Templates avoid reams of pages

We all write reams of arguments. If the judges had to read everything everyone wrote, they’d be reading about 1,000 pages a day. Nobody reads them. Would you?

It’s far better to read a 3-page argument that effectively disposes off an application; instead of 50 pages of arguments, and 50 pages of caselaw for the one side. The same for the other. After being at sea, one writes a judgement that becomes the subject of parody at the Court of Appeal.

Templates reduce the number of heads of arguments

A new habit has formed among counsel. Each person takes 5 to 8 points per argument. This is unheard of. Experienced counsel take one, at most two points–rarely are 3 points taken. The late Dr. Radhakrishna Ramani of Messrs. Braddell & Ramani would take one point all the way up. He had the courage of a lion. He knew his stuff. He read his records from cover to cover. This came from long training, experience, deep research and pure industry. This practice must be brought back.

The Appellate Template

Debates at the Court of Appeal and the Federal Court are of the highest quality.

And so appellate briefs, and appeal judgements, are completely distinct species. This is what one does:

  • Counsel informs the court what one’s ‘complaint’ is;
  • S/he takes the panel directly to Grounds, indicating the impugned passage,
  • shows a case that demonstrates an opposite trend–and then
  • invites the appellate court to reverse the court below.

That is all appeals are.

Yet we see that after 120 minutes of travelling from Johor Bahru to Chiengmai, counsel points to Sri Lanka.

Under the bench, the judges clench their fists.

Take the cue.

Bend before the storm.

So the Court ofAppeal Templatemust demand to see these four vital points. They must ask: ‘what is the point that needs to be developed?’

This must occur at the Case Management stage.  Counsel must be do so by filling in a web-form.

Federal Court Template

A similar ‘template’ should be used in Federal Court Leave Applications.There, the first thing one does, is to ask a Question of Law.

No point writing 10 pages of ‘who said what’.

Every lawyer asks questions of the Federal Court. Most of them are facts dressed-up as law!  Clever disguises.  They won’t work.  The courts will sniff out a yardage of camouflage at 50 paces!

Counsel rarely seem to ask themselves:

‘If the Federal Court agrees with my question, will that have the effect of reversing the Court of Appeal?’

If the answer is ’No’, what in tarnation you doing there?

Few indeed are those who ask questions that relate to Law.

As for Federal Court judges, when looking at the question, one should be able to understand where the ambiguity lies.

Judges, in borderline cases, should help crystallise Leave Questions with greater clarity.

Well-prepared lawyers tend to know a great deal more law than the court: the greatest judges in the world acknowledge that.

It would be a good idea to listen carefully to counsel, instead of waving them away. With respect, today’s Leave Applications are an invitation to convert the application into a verb: ‘leave!’ That means, ‘Go away!’

Both the applicant, and often somejudges, have little understanding of what is involved.

The law as to Leave Applications needs amendment.

If the first two levels get everything wrong, and if a litigant cannot correct the obvious error at the Leave Application stage, something is wrong with our system.

This has to be changed. That is an essay for another day.

Template for a conflict of affidavits

For interlocutory applications, the same ‘template’ approach must be adopted. Usually an interlocutory application refers to one question of law and to 3 pieces of affidavit evidence. If one uses the Tahansan Rule most conflicting evidence can be ignored, and a quick decision can be made: [Tay Bok Choon v. Tahansan Sdn Bhd [1987] 1 MLJ 433, at 438-H]. Do the lawyers and judges observe these little tips?

Avoid the Laptop Syndrome!

There is a new trend are now among new judges. These are the hard-working ones. They carry their laptops onto the bench.  They type everything. It slows down proceedings. Everyone waits for them. When writing, they miss exchange of counsel, the shifting eyebrows of a witness given to prevarication, and other things that help assess evidence. When these software are introduced in court, the judge can sit back, ask questions, and understand the case far better.

Stage-3:      Rehabilitation

We need to employ Ergonomic Experts

Courts need to employ ergonomic experts. These professionals study applied sciences, equipment design, location, atmosphere and the organisation of the workplace.

After such study they can demonstrate how productivity can be maximised, how people fatigue, and discomfort can be reduced, and how effectiveness can be achieved. ‘Effectiveness’ is different from ‘efficiency’.

Activity is not productivity. A person can be exceedingly efficient. But he may produce nothing of value at the end of two hours. The question is whether he is ‘effective’.

It is the ergonomist who will tell you what is ergonomic, and what isn’t.

Practicalities–Night and Weekend Courts

Courts can also be held during the weekends and at night.  The judicial officers and staff who attend to such duties need not come to work on Mondays and Tuesdays. Traffic cases and remand hearings take up the bulk of the magistrates’ courts work. This can be dealt with at night. It will also allow members of the public deal with these problems without having to take leave from their workplace.

So these are some solutions.

Other solutions are being worked on.  Watch this space!



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