When assailed by doubt, what should a litigation lawyer do?

Shortly after MCO was partially lifted, the courts rescheduled many postponed cases.

 

[1] Stress ran high!

They were all cramped together. We were running from pillar to post. We did not have time to prepare. And so, stress ran high: both at the Bar and the Bench.

Every litigation lawyer goes through this. It is nothing new.

It will happen to you on the best of days.

Panic makes no distinction between seniors and juniors.

So doubt and anxiety used to be my constant companions. They have not deserted me yet: but sometimes I can escape their clutches.

Here are some tips.

 

[2] When doubt starts

The first time anxiety strikes me is the day before the hearing. It is always about what I lack.

“Do I have adequate research material?”

“Am I sure about this niggling point of law?”

“Where’s the evidence for this legal principle I am applying?”

“What did the principal witness say about it?”

“Was he cross-examined? How did he respond?”

“What were the re-examination questions put to him?”

“Was he strong, or did he stumble?”

Doubts like these always assail me.

So, how do you overcome the anxiety it brings?

 

[3] Well, one answer is: preparation is everything

I do it by doing a mind map on six important points. These are:

The 3-minute summary

Issues in the Appeal

Head of arguments

Your legal propositions.

Scouring of the Grounds of judgement

Familiarity with the Notes of Evidence

Answering judicial queries

 

[4] The 3-minute summary

In three minutes, you have to tell the judges what the case is all about, where you intend to go, and why you are right.

 

[5] Be clear about the Issues in the Appeal

And the issues must concern an error of law. 

If you can get your Issues in the Appeal clear in your mind, half the battle is over.

When in doubt, drop weak points.  Attack armed with only the well-prepared points.

 

[6] Then, move on to your Main Heads of Arguments

Summarise them.

Next, inform the court at the very outset what Legal Propositions you wish to develop.

List them. You might say:

“There is a divergence of judicial opinion on these two points.
I will submit that point A leads to a better destination, rather than B.
B, if applied, would result in a miscarriage of justice.
It may not, in all circumstances, bring about results that Parliament intended.”

Only then should you go forward. That will reduce stress.

 

[7] Every counsel worries about how to answer the judges’ questions

“What would they ask?”

“Would their questions be on the law or the facts?”

The judges do not know all the facts. You do: it is your case.

When queried, you can’t be flipping pages helplessly.  As counsel, you are the master of both facts and the law.

So, it is you who has to provide all the answers.

 

[8] So prepare

Scour the Grounds of Judgement. Read the pleadings. Go through the Notes of Evidence. Make copious notes.

 

[9] iThoughts and Mind Maps

The mind map method is very useful for this. I use an app called ‘iThoughts’. You could put all the relevant bits in little bubbles. That has given me relief from stress, and some confidence. If the Bench queried you, you could answer with ease.

 

[10] Without sleep, rest, and proper food, you can’t be at your best

You must get to bed in time. For 40 years, I used to mess about reading until about 3.00 a.m.

Rising early, I would rush into court, all in a flurry. This went on for decades.

Some time ago, my wife insisted I hit the bed at 10.00 p.m.  It was difficult at first. We kept at it for 21 days. Then it worked. We rise early and go for a 45-minute brisk walk. That has definitely helped.

 

[11] Eating the right food at the right time is crucial

Eat nothing after 8.00 p.m: it makes your digestive system go on working.  That makes it difficult for you to sleep.

If you have a heavy day in court, do not eat too much at dawn. Starch and sugar   slow down your thinking.  If you eat too much before arguments, the blood doesn’t rush to the brain. It gets to the digestive system.

So have a light breakfast.

 

[12] Run your arguments in your mind

Next, while you are in the bathroom, or walking the court corridors, run your arguments in your mind: point-by-point – sequentially.

Then, run them out of sequence: judicial queries may not follow your order. Play a game: run your opponent’s arguments against your own position.

When you are citing authorities, do not cite 20 cases. Cite one. Know it well. Ensure it is the highest authority on the subject.

Dealing with judicial queries makes counsel quake. When judges ask you questions, they are interested in your case.

Answer them, and honestly. If you do not know the answer, say so.

 

[13] A tip about yoga

One day I was to argue a case at the Court of Appeal. I was well-prepared. I stepped into the bathroom before arguments. My hands began trembling. I realised I’d gone to bed very late.

Resuming my seat, I sat up, inclined my eye 45 degrees up, and focused on breathing. This went on for a few minutes. Eventually, I regained my peace. Yoga and breathing techniques help. Try them.

So, that is how I overcome doubt anxiety in litigation.

If you know any other methods, let us know. We can all learn.

I hope this has helped.  

 

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