What do you need at Mid-Level Practice?
If you are in the middle years of legal practice, how – and where – do you learn the tricks of the trade?
You are a mid-level practitioner. Not so new. Not so senior. What do you need so as to equip yourself for the long years ahead?
Well, you will need the one thing you cannot get.
But that is exactly the point: you don’t have it!
Where can you buy some experience?
So how do you get it? Where do you start? I don’t know about you. When I first started, it was all very confusing.
I wished I had a mentor. So I went around asking.
But most of these guys would not tell me. They guarded it with their life: ‘Trade secrets’, they said. These were the middle-income, not-so-successful, selfish seniors.
The really successful seniors gave it away for free. But there was a catch. They would scold; sometimes bully; and often berate. This was because they were not willing to give up their lifetime’s effort to someone wet behind the ears.
That didn’t help.
Who can show you all the ‘tricks’ of the trade?
But if you are a small-time lawyer like me, not so clever, not so many contacts, in a tiny firm. You wish you had somebody who would be prepared to show you how. Someone who could show you all the ‘tricks’ so that you could hunt sharks? I thought up of a good idea. I thought I would search out for someone who’d read it all, and ask him. d that such a person had three qualities: he was either none existent, too senior to take my call, or was about as dead as a doornail. Mostly dead.
So next best thing: look for a lawyer who had had jotted down all his experiences for you to exploit. I never met any such a guy. But I did get to some jottings written by a few people.
It is true.
That’s what books are.
Books are the Wisdom of the Ages. Especially ‘textbooks’. All those ‘tricks’ are recorded in the journals; and in reference books.
They are the ‘shortcuts.’
Books are superb shortcuts
Essential List Techniques, Books & Materials
A cobbler needs his awl, stitcher, measuring tape and glue. A carpenter needs his set square, and ruler.
So also do you need tools of your trade.
Some tools cannot be borrowed. Buy them; and put them within easy reach.
You need buy several ‘essential books’. They should not break your bank account. Different lawyers have different preferences. Mine is a simple technique. I buy what works.
This is my ‘Essentials List of techniques and books’. I hope these suggestions are useful to you. They have been to me.
Here they are:-
Mobile Library of Primary Statutes
First, carry around a stack of what I call ‘Primary Statutes.’
Courts of Judicature Act,
Civil Law Act,
Subordinate Courts Act,
Interpretation Acts [there are two – guess why?]
Rules of Court,
Court of Appeal Rules and the
Federal Court Rules.
My master had these bundled up.
He’d carry the bundle everywhere.
He’d consult it all the time.
He’d make sure he’d read every line.
Especially the ‘interpretation section’ in each Act.
He’d memorise the sections. He knew it so well, after a time the bundle sat there in his bag.
He wouldn’t touch it. So he didn’t object to us helping ourselves to it.
It helped so much, that when I had my own tiny practice, I’d lug around a CD ROM full of statutes and a Mac. It got too heavy. So now an iPad does the job. As does iCloud storage; or an iBook; or a PDF Pro app.
Get the essential Acts into your head. If nothing helps, that memory will.
Don’t go buy any old tome with a 500 page explanation when you have only 3 minutes before your turn is up at the High Court. And it is far too expensive to buy all the MLJ and CLJ reports. And too far away when you need them: sitting in some library. There are far too many reports to read in the online sites. Too many things to do. Too little time; and scarcely any money to spare.
Bullen and Leake are God’s gift to the Bar. I personally prefer the 13th Edition.
That section on ‘Statements of Claim’ shows you how you should lay out a Plaintiff’s case – both in pleadings and in submissions.
It tells you what to say at the beginning in the pleadings. And, in the end, what to say at your Closing Speech.
Bullen and Leake contains typically two page explanations of all the law in that area; under almost every subject. Imagine. All that law in two pages. The sort of thing you’d need to turn up quickly if you are in the Federal Court and the judges are breathing down your neck.
If you are the defendant, go to the ‘Defences’ section. That tells you how to attack the Plaintiff’s case. Easy stuff. Useful 80% of the time, for all of the cases. Wouldn’t leave home without it!
Third, be very familiar with two Acts: the Contracts Act, and the Specific Relief Act.
The Contracts Act has 191 sections. Only 76 section are about traditional contractual law. Beyond that it has bits in it that have nothing to do with the law of contract at all! Really good stuff. Bailment; Pawner and Pawnee; Guarantees; Indemnities and Sureties [guess what is the difference between the last three words?]. And a whole load of other stuff on the law of Agency [57 sections]. Very useful material.
The SRA is another story. It is always overlooked. The SRA tells you how to create or kill any injunction, specific relief or declaration. Every injunction in this country is not regulated by the case called ‘American Dynamite’ (as one judge once told me, to my utter shock. Mercifully he has retired). It is the SRA that will do it. It will save your client.
Books on Contracts, Torts & Remedies
The following are a must:
Lewison’s ‘The Interpretation of Contracts’ is a brilliant work. It will tell you how to take a term of a contract and turn it around in your favour. Or wrap it around your opponent’s eye and confound him no end!
Do you want a masterpiece? Burrow’s ‘Remedies for Torts and Breach of Contract, (Oxford) is all of that. Burrow has really thought about how to explain difficult, and advanced concepts lucidly, with an economy of words. A gem. It is easy to read, easy to understand — importantly, easy to apply. It will tell you what remedies to apply for and what not.
And if you can’t find it, get David Wright’s ‘Remedies (The Federation Press). Tiny book: 292 pages in all. It tells you what remedies you can apply for, what is the law in that area (whether breach of fiduciary duties, contract, torts etc.), and what you need to show before you get your remedy. Brilliant stuff. None of that high-flown material in Chitty’s.
Carter’s ‘Breach of Contract’ is another indispensable reference.
Buy the CCH Asia’s version of company law is called ‘Commercial Applications of Company Law in Malaysia’ (Wolters Kluwer). This is another masterpiece. You can carry the tiny volume everywhere. There is another CCH book on Secretarial Practice: ‘Guide to Company Law and Secretarial Practice’. That has almost everything there about Company Law. Almost.
In the CCH books, you can understand everything about Foss v. Harbottle and all its exceptions, possibly under 3 pages. Nicely laid out. Lucid. It has saved me time and time again. I need not look elsewhere; almost all I need is there.
If I needed something more detailed, I go find an Australian book [usually HAJ Ford. By the way, he is not a ‘Haji’ as someone once thought].
Or an Indian book [e.g. Rao]. Indian are notorious for providing copious references. Without a deep index. It is their style. The books will include useful English references. There may even be a useful critique of the case. Most senior lawyers look to these books. They won’t quote the Indian cases. But they will that one English case the Indian books quote! Usually with a great deal of fanfare. You do the same thing.
Also buy Lexis Nexis’ ‘Guide to Table A- Articles of Association’ by Chen Thim Wai. Brilliant stuff. Packed into 290 pages. If you wish to master company law, you must master the articles, and the surrounding law. You can kill your opponent in double quick time by telling the judges that the ‘the Articles do not allow what my learned friends is asking for My Lord.’.
Don’t bother with the rest of the books. Too big. Too expensive. Takes a long time to make a simple point. Who has the time?
If you can afford it, have two copies
I have two copies of some of these books. One at the office, one at the house. Given the time I would keep one in the car! By the way, I once saw the late Karpal open the booth of his old Mercedes. It had a box in there, like a shelf laid on its back: had many books there. It was a ‘booth library’.
Don’t bother with the rest of the books. Too big. Too expensive. Takes a long time to make a simple point. Who has the time?
Get the absolute nugget called ‘Goldrein: ‘Commercial Litigation: Pre-Emptive Remedies’. The latest edition is OK, but I prefer the 1997 Third edition. It has a ‘checklist ‘ for everything you need: for Anton Pillar Applications, Marevas, ordinary restraining injunctions, Striking Out, Judgements in Default.
With it, get the 1979 version of the UK Supreme Court Rules (the White Book). Our RHC came out in 1980. It had in it all the procedural law in the UK up to 1979. Although now repealed, it is almost word for word with the Rules of the High Court 1980. But then the latest (2012) Rules of Court preserve almost 90% of the old RHC. So the White Book is still vastly useful. Reprints of the 1979 White Book are still available. These two books are with me in the house.
Two other nuggets are Bennion’s ‘Statutory Interpretation’ and Bower, Turner and Sutton’s, ‘Actionable Non-Disclosure.’
Indices and Annual Reports
And the penultimate point: buy some ‘Indices ‘ and ‘Annual Reports’ of the All England reports.
By Indices is meant the indices for for MLJ, CLJ, AMR, the Law Reports, Case citators, Indices for the Law Reports, and the Digest. These list cases in terms of subject matter and case name, and give alternative citations. They narrow down your queries much quicker than the online journals.
Online journals make poor reference. You only get the answer for the question you ask. If you ask the wrong question, you miss the mark.
Not these indices; they think of everything.
Even if you do not have the reports, the Indices will help you out.
The All England ‘Annual Report’ is worth its weight in gold.
It tells you, in one volume, what were the most important cases in the UK for the last year.
It explains what the law was, what it is, and what it should be.
One in a year. Really interesting stuff if you are the curious type.
There are only three practitioners I know who read it: Datuk Seri Gopal Sri Ram, T. Gunaseelan (where do you think he gets his P.Os from?) and Shahul Hamid Amiruddin of Zul Rafique (who another equivalent version, ‘the ‘Quarterly Law Review’). By reading one volume, it is as if you have read all the cases for the whole year. This is an old practitioner’s trick!
Unless you wish to do what the intrepid and industrious Gana Naidu of Kelantan did when he was a pupil: he read, every night, every page in every volume of MLJ reports, all the way up to 1965!
If not, all you need to do is to read one book a year to understand almost all the important cases for that year.
Which route would you rather choose?
Keep, and Index your old Notes and ‘A’ Level Law Books
Finally, keep all your law notes you took at University. Even the text books. They will come in useful, eventually.
I still have my university notes: yellowed out, curling, musty papers.
About 15 years ago I needed an authority on an important point. Was a man’s estate liable to make good a guarantee, if the guarantee had been triggered after his death? The contract had an ‘assigns and executors’ clause. That meant all obligations and liabilities passed into the estate. The liability was RM75.0 Million. I could find nothing. The guarantee had been triggered. The client asked me to stave off the bank. He wanted 6 months to sort himself out.
All hope seemed lost. I was casting about in dismay. Then I remembered reading one case in the 1986 ‘A’ Levels Law of Contract by FR Davies. I found one of Lord Denning’s cases. I cited it.
I recall arguing that if the guarantee had not been triggered at the point of his death, no ‘liability’ had crystallised.
No liability could not pass into his estate, because only assets and liabilities pass into a dead man’s assets, not a ‘liability’ that had not been crystallised.
My opponent, a famous banking lawyer, sniggered. The SAR, who heard the O.14 application, thought I was off my head. We lost the O.14. But we bought time.
We went up on appeal: and got everyone confused – but we bought time! In the end, we settled for a tiny sum. A tidy sum was paid as fee.
In Tamil there is a saying: ‘Even a blade of grass is a weapon to the intrepid’.
Reports and Journals
As for reading reports, don’t bother reading anything before 1950 (that’s when our contracts Act and Evidence Act came into being); and don’t bother looking at pre-1965 decisions for company law (our Act came into force in 1965).
How to respond to a Statement of Claim, a Defence or a Petition?
As for those techniques that is a long lecture. Next time perhaps. But I will give you a few hints.
Every senior lawyer knows these things.
When you are reading the Statement of Claim, read the Prayers first (I did not say that you should carry your pleadings to the temple and ask the priest to pray over the case for divine boon. Some people will take things literally).
Ask yourself: if the Plaintiff is asking for this relief, what must he show in the body of his pleadings? If he has not, apply to strike out.
Again, if it is a tort, or a breach of contract, is there a ‘connection’ between the alleged ‘breach’ and the alleged ‘damage’? I am talking about ‘causation’. It is this sentence – ‘but for the Defendant’s breach as aforesaid the Plaintiff would not have suffered any such loss’.
Three short stories
We once forced a senior into a settlement because we filed an O.18 r. 19 and said that his statement of claim ‘did not disclose causation’ etc. The judge bought the idea. Threw us out to negotiate. Made life a lot easier.
At another time we faced a section 181 petition. The petition looked a little odd. It had the signature of the Registrar. But not the Court stamp. It had been filed and served on us. The petitioner guy was demanding for receivers and managers, control of management, the works. Things got pretty tough. We did not know what to do. We said, ‘sec. 7 of the Courts of Judicature Act requires a court stamp its documents. This petition does not have it. So this is not a ‘court’ document, we cannot reply, we are legally embarrassed’: stuff like that. Again the judge threw us out, we talked, and settled.
There was a time the other side applied to strike us out. The Judge was about to hand us the hangman’s rope. We said: ‘But the power to strike out also gives you, the judge, a discretion to allow us to amend, under O. 18. r. 19(1). You cannot strike us out even if you thought our case was weak’. He huffed and puffed, but he allowed us to amend. We escaped by the skin of our teeth.
Little things like that.
Where do you go for tips like that?
These are not written down anwhere. But your Primary Bundle would have told you that! It was there for the taking, only if you had looked.
Seeing the ‘pattern’
Legal practice is easy. It is mostly about replicating other people’s work. There is a common pattern to most legal problems. And there usually is a workable solution. Someone else would have done it in the past. There is a necessity to see how others have approached a similar problem before. To discover how they succeeded. If they failed, to analyse why. There is a need to get to the ‘core’ of the problem, quickly. It is a skill. It comes only with practice.
The more senior you get, or the better you get at it (and these two circumstances are not synonymous), then you might be able to depart from the common pattern. But you must know the foundation of your case well. So also the other’s side’s position. After that you can either take down the house or fend off attacks against it by exploiting ‘foundational points’.
You must then repeat all these ‘precedents’ before a judge. Make him believe that he has discovered much of this fantastic stuff all by himself! It works all the time.
Seniors are like Shao Lin Masters – they will not teach if you don’t take trouble
It is not that seniors will not teach.
The seniors have no time; mostly, no inclination. I can’t say I blame them. Sometimes the seniors feel that it is all wasted on the juniors. The seniors often complain that:-
‘The juniors will not put in the hours.’
‘They are indolent’.
‘They lack initiative’.
‘They want everything served up on a platter.’
They want to own big cars. BMWs. Benzs. By next year. By hook or by crook.
Don Armani suits.
Boast in the canteen how many months’ bonus they got’.
One senior told me:
‘Ask them, how many books they have bought? And how many have they read? Then ask them to talk’.
But seniors must take the trouble
I don’t know. I am moderately successful because many of my own seniors didn‘t grudge me either their time or effort.
They did not make it easy.
But they took the trouble.
So I must take some trouble as well.
[And this is only Part-1. Parts-2, and 3 are on the way. You have to wait.]