ADVOCACY
and The Silk Road j AN – Ju – AN n 2008
MICA (P) 329/05/2007 JAN – Jun 2008 | Singapore Academy of Law Big Picture 04 Justice Choo Han Teck ruminates over the past, present and future of advocacy in our courts and opines on the qualities that define an advocate and the lost art of oral advocacy. 11 How do advocates fight for their clients with robustness and intensity, yet avoid subverting the truth, perhaps even unwittingly? Find out how.
in Focus 04 22 Outlining the evolution of the Senior Counsel Scheme and the effectiveness of such a scheme.
uP Close Cover 30 The Chief Justice gives insight into the Senior Reportage Counsel Scheme and the selection criteria. 36 A heart to heart with a few SC: Harry Elias SC, Justice V K Rajah and Deborah Barker SC.
Minority Report 42 Dispelling the myth that the work of Senior Counsel is confined to the High Court, and highlighting the need for some changes to the 30 court system. 46 Debunking the mistaken perception that the work of small law firms is confined to procedural or administrative matters, is less challenging or demanding and is confined to the Subordinate Courts practice.
SC PROJECT 51 A hitherto unknown project to churn out Superlawyers masquerading as Senior Counsel?
ACADemy turns 20! 56 56 Come celebrate with us as we commemorate 20 years of service to the legal fraternity.
Distinguished Visitors 62 Murray Gleeson AC, Chief Justice of Australia, grants Inter Se an interview prior to the Annual Lecture 2007.
On the bookshelf 66 A preview of No Further Questions: A Primer for the Singapore Advocate, a forthcoming title 66 under Academy Publishing. January– june 2008 Inter Se is a bi-annual IT has been 20 years since the Academy’s birth. Over the years, we have publication of: witnessed many changes including changes to our Senate Members and in the Judiciary, and even a change in our location from St Andrew’s Road to Supreme Court Lane. We have seen a steady influx of Academy Members, as well as modifications in the delivery of legal knowledge on a new legal platform. The Academy’s growth has taken place amidst the modernisation of our legal system. One thing remains steadfast, and that is our commitment to promote Chief Executive and maintain high standards of conduct, learning and professional Serene Wee competence in the legal profession, and to foster fellowship and Consultant Editor interaction among the different branches of the legal fraternity. We have Anita Parkash tried to capture the Academy’s baby steps in “Serving and Learning” under the Academy Buzz section. 2008 marks 20 years of our unstinting Editor support of the legal community. Elizabeth Sheares This issue, we feature the Senior Counsel Scheme, a scheme founded Editorial Committee on the English Queen’s Counsel system of Silks. Although Singapore’s Ranald Or Senior Counsel have not adopted the outward garment of silk gowns Bala Shunmugam and powdered wigs, the Scheme’s objective remains the same, that Foo Kim Leng of honouring those at the pinnacle of the profession, the crème de la crème of advocates. With this issue, we pay tribute to these advocates of 1 Supreme Court Lane, distinction who have honed their skills to select what is most important Level 6, out of a mass of material (especially in this electronic age of search Singapore 178879. Tel: 6332 4388 engines which throw up lengthy search results) and marshal it to the Fax: 6334 4940 most effective use. It would be remiss to forget their flair and finesse UBS in the execution of this skill, for after all, advocacy is an art – the art of © 2008 Singapore Academy of Law persuasion, of convincing others, of conducting cases in court. All rights reserved. No part of this There is a mistaken belief that advocates are just warmongers (with publication may be reproduced, stored in any retrieval system, a modus operandi of “take no prisoners”) or courtroom brawlers with a or transmitted, in any form or by any means, whether electronic or penchant for arguing. In truth, it takes more than just the love of a good mechanical, including photocopying argument to be a successful advocate. As with any art, skill, aptitude, and recording, without the permission of the copyright holder. dedication and experience are essential to create a masterpiece. None alone will take you on the Silk road to success. These requisite qualities, ...... however, are not specific to Senior Counsel; they apply to all advocates. AD Our Q&A with a representative of the Selection Committee (the ones who Advertising Sales Florence Long say aye and nay to any SC applicant), will reveal as much, if not more. Mobile In this “brief to counsel”, we feature editorials on advocates, for 9382 0381 advocates and written by successful advocates, past and present, with the E-mail aim of discovering more about advocacy, the experiences an advocate will [email protected] likely face, and the road to successful advocacy. As you are reading, I trust Publishing Consultant some of you will look back and relish your own moments of adversarial Lyon Low glory. Finally, we appreciate your support over the last 20 years. Design The Academy will not be where it is if not for that support. We look Eunice Gracilia forward to another successful 20 years with you. mediaMediactivective Pte Ltd Warm regards, 65 Ubi Crescent, #06-07, Hola Centre, Singapore 408559. Serene Wee Tel: 6846 4168 0 • Big Picture Big Picture
The Honourable Justice Choo Han Teck ruminates over the past, present and future of advocacy in our courts and opines on the qualities that define an advocate and the lost May it Please the Court: art of oral advocacy. THE advocate in Singapore practises under a system of law he understands as the common law system. How the common law An Opinion on Advocacy’s system came to be and then how that system came to be ours are matters that beg a deep understanding of history and comparative Enduring Aspects jurisprudence, and are not the subject of this essay. The subject of this essay is more modest in its scope – an opinion on the qualities that defined an advocate then, defines him now and may define him in time to come. It is not being suggested that a study of past and present trends will enable one to predict the future of advocacy. Prediction belongs to a different art and the focus of this review is something deeper than trends. Rather, I hope that what follows will be taken as an invitation to think about the lasting qualities that constitute good advocacy. One could draw up a long list of technical skills required for effective advocacy as a way of beginning to engage with the nature and significance of such skills over the last 30 years or so. Instead, as a starting point, I offer this proposition:
The advocate finds work in the ruin and misfortune of his fellow man.
Such a caricature of the advocate as someone as much feared for his avarice as for his forensic skills abound in the works of Charles Dickens. This is of little surprise considering that Dickens himself had entered into no less than five Chancery suits to enforce his copyright y in his literary works – the endeavour leaving him financially poorer for having won and causing him to declare that “it is better to suffer a great wrong than to have recourse to the greater wrong of the law”. The starkness of this unqualified description of the advocate as a heartless and shameless scavenger, concerned only with fees and fame, must neither define nor dishearten. Instead, it offers
L ibrar P hoto : T he B ridgeman A rt Every lawyer would have been told that “man” embraces “woman”. By The Honourable Justice Choo Han Teck, Supreme Court
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two important insights into the role of Tichborne case. Modern trials are more The use of the affidavit of evidence-in-chief* the advocate. First, the advocate has straightforward, less verbose, almost to (“AEIC”) has reduced the opportunities to an opportunity to alleviate rather than the point of being brusque. This approach nurture this forensic skill. It has also exerted The advocate’s primary exacerbate the ruin and misfortune of his has the virtue of clarity at the expense of pressure on the advocate to find a way to duty therefore is to help the fellow man. Second, the advocate, through sophistication. At times, however, subtlety compensate for the lost opportunities that his professional conduct, bears significant is lost to crudity, or worse, vulgarity; would have been had in the oral examination court, his client and his fellow responsibility for ensuring that public faith in complex points are rushed through. Gradual of evidence-in-chief. advocate, and ensure that ruin the legal system is earned and maintained. development of the point, whether of fact or Yet, although it has been some years An advocate is a professional pleader law or of argument, may be forsaken. since the affidavit of evidence-in-chief and misfortune are minimised of the causes of others. The denotative While one should aim to have one word has replaced the oral testimony of such value of the word “advocate” lies in its carry the weight of ten rather than to employ evidence, many lawyers have not developed if not avoided where it is a just Latin root “advocare” meaning “call (to ten words to convey a solitary meaning, the skills to make the best of this change. outcome. How effectively the one’s aid)”. The advocate’s primary duty economy of words does not signify an Lawyers, experienced and newly-qualified, therefore is to help the court, his client and economy of thought. There is no necessary find themselves in something of a catch-22 advocate comes to the aid of his fellow advocate, and ensure that ruin connection between the two. The effective situation. The experienced lawyers who those he serves is a combination and misfortune are minimised if not avoided advocate must spend much time thinking have thrived and excelled in an environment where it is a just outcome. How effectively about his case and when he is done with the defined by oral advocacy are now having to of personal integrity, court craft the advocate comes to the aid of those he substance, he should proceed to consider the change how they approach the trial and their serves is a combination of personal integrity, form of his argument. This is the crucial stage role as advocates. Younger, less experienced and willingness to adapt to court craft and willingness to adapt to when the advocate needs to pay special counsel who learn much from the tutelage change. change. attention to his choice of words. of their more experienced mentors find that Even though I would disagree with One noticeable change over the years they may not have as much guidance or as Dickens’ harsh view of the law and lawyers, has been the courts’ growing reliance on many sources of advice as they would like or words, but the reporting of what the witness we are in agreement on at least one thing: the written word heralding a shift from need. It is here that, perhaps, a perspective had told his lawyer in witness interviews. “A word in earnest is as good as a speech”. advocacy being an almost exclusively oral art from the Bench may be helpful. Herein lies the challenge facing the Obfuscated thinking often manifests itself to an increasingly written one. In the past, When a witness tells his story by oral advocate of today. No two witnesses are the in verbose speech and a turgid writing style. with well-chosen words, counsel could coax testimony, the judge will be listening to the same and in the course of a year, a lawyer Advocates in the past have traditionally answers from witnesses so that the evidence witness’s voice and watching the manner may have to take up to a hundred statements been fond of sycophantic expressions appeared to issue from the witnesses in which he tells his story. Thus, both the from all sorts of witnesses – young, old, and exchanges with each other as well naturally. Where oral advocacy is concerned, story and the storyteller are being evaluated educated, illiterate and, most importantly, as with the court, such as that between the more expertly counsel does his job, the simultaneously. When it comes to the truthful and untruthful ones. The lawyer the Lord Chief Justice and counsel in the less the witness appears primed or coached. affidavit evidence, the judge will be reading should realise that because the witnesses the evidence of the witness usually as the differ, he might have to adapt his draft of witness’s lawyer conceived it to be. The the affidavit accordingly. Unfortunately, Oxford English Dictionary (“OED Online”) For a full account of the second longest trial (102 days) result is that the evidence-in-chief loses the this is almost never the case. From the way
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but he might even be able to tell which lawyer had drafted it. Often, the overly- No advocate is drafted affidavit is the result of an advocate wanting a technically sound document at the entitled to encourage a expense of a document that is an accurate expression of who his witness is. How, then, witness to lie. He is, does one reach an effective compromise and however, entitled to advise maximise the impact of the affidavit? Some witnesses are extremely articulate that certain details are not and so it may be best, in such cases, for the necessary or relevant and The choice, however, is his. The counsel There are many legitimate ways in which an advocate to use the witness’s own words who has early familiarity with his witnesses’ advocate can fairly control the amount of in his affidavit. In such a situation, editing need not be offered unless affidavits has the advantage over the one detail flowing into the trial. If, for instance, may be kept to matters such as arranging who has not. he has taken into account the basic rule that which point is to be made first and which is asked. It is a mistake for an advocate to assume crucial evidence must be expressly and clearly to follow, and limiting the amount of detail the role of the scribe only. The advocate’s adduced and irrelevant evidence excluded, or repetition so that the affidavit does not witness was most familiar with. Finally, it is professional duty requires him to prepare he could use “intermediate” evidence as bait become verbose. The advocate may also important to let the witness go through the his witnesses for trial and he would not have for his opponent. Intermediate evidence is advise the witness against exaggeration affidavit himself as well as with his counsel done this properly if he had merely recorded evidence the absence of which does not harm and stating other irrelevant matters. If the so as to be sure that the witness is satisfied what the witness had told him. The advocate the advocate’s case but, if adduced at the witness is not well educated, it would serve not only with the truth of the deposition but has to be the first and foremost critic of his right moment, works to emphasise aspects the advocate and his client well to encourage is also comfortable with the manner and style witnesses, and he must not let them take the of the advocate’s case. For example, if it the witness to use short, simple sentences the assertions are made. witness’s stand unless they are fully prepared. were necessary to explain why the plaintiff to give his testimony. The biggest problem This leads us to another important facet Here, it is important to say what this does not left the country when she did, the advocate with a witness who is not conversant with the of the affidavit of evidence-in-chief. It is mean before saying what it does mean. No could advise the plaintiff that she need only English language is that what is stated in his indelible. A statement can be corrected, advocate is entitled to encourage a witness tell the court, “in the last two years of the affidavit is often a poorly-understood version sometimes at the cost of credibility, but to lie. He is, however, entitled to advise that marriage the defendant had been unkind to by the recording lawyer. When the lawyer the original statement cannot be erased certain details are not necessary or relevant me”, without having to say what exactly the misunderstands or misinterprets the witness, and remains on record. An oral statement and need not be offered unless asked. defendant had done to be unkind in those two it will require an improbable coincidence to once uttered also goes on record and This allowance is sometimes dubiously years. Experienced opposing counsel would have the court interpreter make the same in that sense, it too is indelible, but the used as an excuse by a lawyer hoping not fall for such a manoeuvre and would mistake such that the witness’s answer crucial difference is that the statement in to encourage his witness to omit details respond simply by saying, “my client denies under cross-examination remains consistent. oral testimony is elicited by counsel at trial by claiming that they are “unnecessary that he was unkind to yours, but we will hear Inconsistency between affidavit and oral whereas counsel may not have looked at the or irrelevant”. What is the test to tell a it from him directly when he testifies” and evidence is a prevalent problem in cases affidavit of evidence-in-chief until long after genuinely unnecessary or irrelevant detail no more. If he takes the bait and asks, “Can where the lawyer recording the witness’s it has been sworn and filed. An experienced from an attempt at cheating? There is you explain in what ways the defendant was statement did not think it sufficiently advocate will know that this creates problems none save for the honesty of an advocate unkind to you?” he is inviting trouble. important to use a qualified interpreter that he would rather avoid, but all too often, to depend on, and this, if taken to heart There is one more point to make about speaking through the language that the he does not have the time to prevent it. by every advocate, should be sufficient. the written word in advocacy and this is in
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connection with the opening address and the closing address, which have become popularly known as the opening statement The advocate should and the closing submission respectively. master the art of weaving The opening statement has become a written document and it is more common the fabric of his case nowadays for counsel to hand in written from common threads submissions to the court. The written word is the stronger invitation to verbosity. When connecting the opening one is given time and space to write, one may tend towards prolixity. As has been pointed address, the evidence, and out, advocacy as it was practiced, and the the closing speech. oratorical skills required, take on a different character in the light of such a shift. The root nature and purpose of advocacy, however, that the advocate should think about so as do not. Hence, the advocate today should to make the best use of what is a double study how the great advocates of the past privilege. To each his style, but it may conducted their trials with oratory instead of seem sensible to leave the details to the authorship – by guarding against excess. written statements where references and The advocate should master the art of cross-references can be usefully made weaving the fabric of his case from common to the sources of the evidence as well as threads connecting the opening address, the authorities cited. Counsel may then the evidence, and the closing speech. In concentrate on making an oral address that the opening address, the advocate tells the is an embodiment of the best qualities of court what the case is about, briefly, and advocacy (whether written or spoken) – words what he has to prove and how he intends to used forcefully, eloquently and succinctly. prove it. The advocate then leads evidence The wig of yesteryear might have gone, and challenges the evidence of the opposing the sombre dress of present days may one party, and when all evidence has been day also become obsolete, but, however he adduced, the advocate delivers his closing dresses in future, there is no likely substitute speech, telling the court why judgment for the mesmerising voice of a well-trained should be returned in his client’s favour. advocate pleading his client’s cause in It is not uncommon nowadays for the court, a voice carrying the weight of reason, court to either invite or permit the advocate sweetened with graceful brevity. That never to make a short oral opening address as well fails to please the court. as a brief oral closing speech in addition to allowing written opening and closing * More on the AEICs may be viewed at statements. This is a modern modification p12 of this issue of Inter Se.
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FAIR GAME: Advocacy, the Witness and the Pursuit of Justice By Thio Shen Yi, Legal Practitioner
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How do advocates, on a practical level, balance their confidence; and sometimes, the evidence represents, as closely as possible, the voice functions and loyalties as officers of the court and may radically depart from reality. of the witness. It should be a true reflection representatives of their clients? How do they fight for Is there a case for going back to the oral and representation of a witness’s narrative, their clients with robustness and intensity, yet avoid examination-in-chief? Probably not. AEICs are speech patterns, degree of certainty in his or subverting the truth, perhaps even unwittingly? How does meant to save time, and they do. However, her recollection. Obviously, left to their own fidelity to the truth override an advocate’s obligation to advance his or her clients’ cases? These tensions and the practice of exchanging affidavits started devices, witnesses do not always narrate conflicts are the focus of this article. when evidence was recorded by hand, and events in a strict chronological or sequential the pace of a trial was constrained by how manner. Memories can be elusive, events fast a judge could write. We now have audio which are recalled with clarity are not always WE all accept the reasons for affidavits of examination-in-chief recordings, and the possibility of “live” or explained with the same clarity, but jumbled (“AEICs”). They save time and aid the preparation of cross- “next day” transcripts. Oral evidence-in- up and juxtaposed with other events out examination. AEICs clarify and sometimes narrow factual disputes. chief would still slow down a case, but this of sequence; language is used imprecisely They allow us to “manage” the impact of the information would be balanced by other savings in time. and inconsistently; a witness’s knowledge presented and thereby assist us in advancing the clients’ case. I suspect we cannot fully turn back the clock. can be derived from many sources including To what extent do they assist the court in getting to the truth? So how do we allow the court to hear and conjecture, hearsay, ex post facto How may they best be used in a way that facilitates the pursuit of assess a witness’s testimony in its unedited rationalisation and inferences as to what justice? Here are some observations gathered from my experience form? One or two modest proposals come to probably happened. as an advocate thus far – though I am sure that there is still much mind. While lawyers have to impose to learn. First, a trial judge or tribunal can direct organisation, intelligibility and precision that certain evidence be adduced orally, (and correct grammar!) to the evidence AEICs AND ORAL EXAMINATION-IN-CHIEF perhaps where evidence is likely to be both adduced, should we not be alive to Where the emphasis of a case is on non-documentary evidence, material and contentious. All other evidence, the vagaries of evidence, and seek to and where witnesses are likely to contradict each other, it much of which may be formal, background communicate the quality of the evidence in becomes important for the court to assess the credibility of or undisputed evidence, can be set out in as realistic a way as possible? The precise a witness, and the quality of a witness’s recollection. Does affidavits. The evidence to be adduced orally degree of any one witness’s recollection the witness actually recall the event, or is it an ex post facto can be set out broadly in an un-sworn witness may be from 0–100%, and it is perfectly reconstruction of what should or was likely to have happened? statement, or a summary of the evidence legitimate for a witness to depose that an With AEICs, the court is limited in its ability to observe the intended to be adduced. This preserves event did or did not happen, but that he demeanour of the witness. The judge is presented with a sanitised the advantages of the current procedure, or she cannot be absolutely sure. Where a version of events. A witness’s level of doubt or confidence in the and avoids “trial by ambush”. With the witness has reconstructed or recalls events quality of the recollection is not communicated. Words may be introduction of a “docket” system where after being directed to and refreshed by put into a witness’s mouth, and what may have been a messy and the trial judge is appointed in advance and contemporaneous documents, that should chaotic event is reconstituted with more order and discipline in its manages the interlocutory stages of a case, be explained. This may be easier said than re-telling. Often, with grammatical, precise and cogent drafting, this becomes practicable. However, this may done as the advocate’s job is to present a witness appears to recall things more concretely; statements be too radical a change from the existing the case in an advantageous manner to his of fact are drafted more confidently, and the evidence appears process. client. But from the perspective of assisting a lot more definite than it actually is. The judge sees evidence This leads us to a second suggestion. We the court to find the truth, or to arrive as which does not communicate the nuances of doubt or degrees of should ensure that the text of the affidavit close to the truth as is possible, might not
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managing the evidence in this way risk subtle emerge as early as possible. Further, to rely reduced to ashes. It is a tool to seek truth, misdirection? As a better practice, one on cross-examination to discover the whole to hunt for and expose inconsistencies in Perhaps to ameliorate this, simple that is more faithful to accuracy truth about the witness is not always the most specific instances. We are reminded of the steps can be taken, starting with the use of effective method. While cross-examination power and cautioned of the danger of cross- of both sense and sentiment, language and the choice of words. Many does reveal truth and clarify answers, examination in a classic American treatise on of us may have experienced instances perhaps we should try to draft witnesses can be guarded, defensive or the subject: where a witness did not understand words AEICs using the natural speech intimidated. While they sometimes show their or phrases used in the affidavit. Less true colours, at other times, these colours go Not even the abuses, the egregiously, words and phrases, while patterns of a witness as far as into hiding. Honest witnesses can be made to mishandlings, and the puerilities understood by a witness, may clearly not grammatically possible. look evasive, disingenuous or confused under which are so often found associated be part of his or her vocabulary. These skilled cross-examination, or frightened with cross-examination have availed to instances are met more often than not, only into making unjustified concessions under nullify its value. It may be that in more with mild irritation or grudging tolerance witness would say orally, and what appears in aggressive cross-examination. They do not than one sense it takes the place in by the judge, rarely with admonishment. written form. It should be open to opposing always acquit themselves with honour even our system which torture occupied in There are limited disincentives to continue counsel to contend and argue that the when telling the truth. Further, as demeanour the mediaeval systems of the civilians. “managing” the evidence in the AEICs. As affidavit as a whole should be accorded less is not observed during a relatively stress- Nevertheless, it is beyond any doubt a better practice, one that is more faithful weight as it was not a substantially accurate free oral examination-in-chief, the court the greatest legal engine invented for to accuracy of both sense and sentiment, representation of the actual evidence. If cannot compare that demeanour against their the discovery of truth ... A lawyer can perhaps we should try to draft AEICs using these arguments meet with some success observations of the witness during cross- do anything with a cross-examination the natural speech patterns of a witness as from time to time, that would probably have examination. The first time a judge hears if he is skilful enough not to impale his far as grammatically possible. Most people a direct impact in the way affidavits are substantive evidence from a witness is when own cause upon it. He may, it is true, speak in short sentences, use direct speech drafted. that witness is under hostile fire. do more than he ought to do: he may and active verbs. Yet affidavits are overlaid The great Roman lawyer Marcus Tullius “make the worse appear the better with passive verbs, indirect speech, and THE WITNESS AND CROSS-EXAMINATION Cicero was reputed to have remarked, reason, to perplex and dash maturest sentences that are paragraphs in themselves. Of course, a witness is still subject to cross- “When you have no basis for argument, counsels” – may make the truth If such affidavits were treated with greater examination, and arguably, this is where the abuse the plaintiff.” The Roman Senate may appear as falsehood. But this abuse of scepticism by the court, and if that were demeanour and credibility of a witness is have been the arena for verbal gladiatorial its power may be remedied by proper communicated to counsel, it could encourage revealed. This, however, only mitigates the contests, but the common law system has control. advocates to take more proactive measures problems arising from an overly-polished long removed itself from trial by combat or to ensure consistency between what a AEIC and cross-examination becomes trial by ordeal. It is true that our adversarial It is therefore important that we prolonged. First, it may be necessary to system requires and depends on fearless, constantly remind ourselves that cross- As a graphic illustration of this, it is not uncommon deconstruct and rebuild a witness’s evidence robust cross-examination. It is the crucible in examination is a privilege that must be to see words used by witnesses in affidavits that to properly understand its true impact, which evidence is refined and clarified, and treated with respect. It is the “principle would never see the light of day in normal 21st century conversation, eg, verily, therein, thereto, and the degree to which the witness has where the evidence is false or exaggerated, test which the law has devised for the hereinbefore, hereinafter, aforesaid, said, crave confidence in his or her own testimony. leave, vicissitudes, contemporaneous, reprobate, repudiate, innominate ad nauseam. Only after that can one test, clarify and, In fairness to Cicero, this is attributable to him as John Henry Wigmore & James Harmon See, for example, any of Ernest Hemmingway’s novels or if necessary, attack the evidence. In the a “humourous” quote. He did also say that the Chadbourn, Evidence in Trials at Common Law Lord Denning’s judgments to get a sense of this. interests of justice, the unedited truth should “foundation of justice is good faith”. (Chadbourn Revision, 1970).
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ascertainment of truth” and a valuable or the evidence given by that witness weapon for testing the veracity of a witness (eg, facts going to contradict that witness’s and the accuracy and completeness of testimony), and that witness was not given an his story. It is entrusted to counsel in opportunity to address, counter or respond the confidence that it will be used with to that submission because it was not put to discretion, and with due regard to the him by the other party, then that submission assistance to be rendered by it to the cannot be made. However, this is not a rigid court, not forgetting at the same time the technical rule. Not every point has to be burden that is imposed upon the witness. put to the witness. The submission or the
Justice No matter how robust and aggressive the point made must be of such a nature or of Integrity cross-examination, it has to be tempered with such importance that fairness dictates that it fairness to ensure that we get to the truth, should have been put to a witness. It is also Fairness and not just our clients’ versions of the truth. not a rhetorical formula which is satisfied by a vidence For example, fairness requires a witness recitation of a party’s case to a witness, with E to be allowed to respond to facts or an invitation to agree or disagree. In fact, if allegations that purport to contradict his counsel on cross-examination recites a series or her evidence. It allows the judge to hear of “puts” to the witness, and insists only on a Ethics both sides of the story. Rule 60(g) of the “yes” or “no”, “agree” or “disagree” answer, ruth Legal Profession (Professional Conduct) that may itself be unfair as it may seek to T Rules (Cap 161, R 1, 2000 Rev Ed) states constrain the evidence or elicit an incomplete that the advocate is not entitled to make an answer. Again, that is not helpful for allegation against a witness whom he had discovering the whole truth. Obviously, where the opportunity to cross-examine unless he a point has been canvassed and explored in gave the witness an opportunity to answer cross-examination, it does not need to be the allegation in cross-examination. The court “put” to a witness. Even if it is done out of and the opposing party are protected from an abundance of caution, a witness does not being blindsided. The court is also not have to repeat his prior answers and can give required to consider an argument without the a more limited response. Advocates need aspect of fairness is the need to treat of cross-examination must be used benefit of all the evidence. to seek a balance between efficiency and witnesses with due courtesy and respect. responsibly, and cases “can be conducted Related to this is the rule in Browne caution, as failing to put a point to a witness, This is not weakness on the part of the cross- with the greatest vigour, without discourtesy v Dunn, where if a submission is going if it was material enough, could imply examiner, and such respect and courtesy and insult to witnesses and no room should to be made about a witness (eg, bias) acceptance of the evidence-in-chief. Another “is by no means inconsistent with a skilful, yet be left for an uneasy feeling to be created”. powerful cross-examination”. The privilege The purposes of cross-examination “can be Sir Matthew Hale, The History of the Common Law in See Hong Leong Singapore Finance Ltd v United and are generally achieved without using England (1713). Overseas Bank Ltd [2007] 1 SLR 292 at [42]; see also Lo Mechanical & General Inventions Co v Austin [1935] language which in ordinary society would Sook Ling Adela v Au Mei Yin Christina [2002] 1 SLR 208 Mechanical & General Inventions Co v Austin [1935] AC 346 at 359; cited with approval in Wong Kai Chung v be regarded as insulting or offensive. AC 346 at 359; cited with approval in Wong Kai Chung and Ong Jane Rebecca v Lim Lie Hoa [2005] SGCA 4. The Automobile Association of Singapore [1992] v The Automobile Association of Singapore [1992] Spandeck Engineering (S) Pte Ltd v Defence Science & SGHC 16; see also r 61 of the Legal Profession The privilege to counsel to use in court SGHC 16. Technology Agency [2007] 1 SLR 720. (Professional Conduct) Rules. language which would not be tolerated out of
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to a satisfying performance for the client, possible that they will either say anything to insist on a “yes” or “no” answer. When such Scare tactics or aggressive it does not always advance the cause of get the ordeal over and done with, including an answer is forthcoming, but the witness questioning does sometimes justice. Judicial Commissioner V K Rajah (as agreeing to any answer that the cross- wants to qualify or expand on the answer, he then was) cautioned, “While counsel are examiner suggests, or their answers become the cross-examiner cuts off the witness and work, but at other times, is allowed to probe a witness for consistency confused and equivocal. This may be good refuses to let the witness continue. Insisting counter-productive for getting to and credibility, the micro-dissection of the for our client, but undermines the court’s on a “yes” or “no” answer is fair enough because if such a response is not given and the truth, and therefore a degree evidence of an unschooled witness will often ability to arrive at the truth. Aggressive or produce some inconsistencies. Indeed, hostile cross-examination may alienate a the witness launches into an explanation or of restraint and discretion is it has often been said ... that a witness who witness, or make a defensive witness even qualification, he or she will be explaining or called for. can give flawless evidence may be treated more defensive, with the result that they qualifying an answer which has not actually with some caution as perhaps a rehearsed become non-communicative, and restrict been given. I am, like many others, guilty of witness.”11 their responses to monosyllabic replies when this. Our usual justification is that the witness court is only justified when the ends of justice We all know that some witnesses have more detail is called for. Again, we only get needs to be controlled, the explanation require it. The cases when it is justified are to be shaken and broken down in order for to part of the truth, not the whole truth. may not be relevant, or that the witness is not common”.10 Yet, this frequently is a rule the truth to emerge. The cross-examination I am reminded of a case with a Senior answering an anticipated question and not more honoured in the breach than in the must be robust, aggressive, even accusatory. Counsel on the other side, where it was clear the actual question. observance. However, other witnesses may not be of that he disagreed with the evidence of a However, some hazards do arise when Not all witnesses are equal. Some are similar constitution. To the uninitiated, court foreign witness. He never once accused the witnesses are cut off repeatedly. The court confident, others are tentative. Some proceedings can be intimidating, and the witness of being a liar, but when challenging builds up a record of incomplete responses. speak cogently, others ramble. Some interrogative nature and artificiality of cross- the evidence, would say almost regretfully Counsel then uses these incomplete are articulate, others have an indifferent examination induce tension and nervousness. to her, “I am sorry that I must say this to responses as the basis of challenging command of English. There are witnesses This is exacerbated if they make minor errors you, but I suggest that the last statement subsequent answers. The witness’s responses who come to court with an intention to lie or of recollection or are inconsistent on non- you made is simply not true.” That was may not make sense in the absence of those be economical with the truth. Others have material detail, and counsel takes advantage a measure of courtesy and graciousness explanations or qualifications that he or convinced themselves that their version of of this to excoriate them, often for no other that left an impression on the witness, who she was trying to give before being cut off. events is the truth. Still others have poor purpose than to soften them up for later commented favourably on the dignity and Sometimes a witness answers a question recall, but fill in the gaps of what might questions. Do we get good, reliable evidence respectfulness of court proceedings in on the basis of these yet to be articulated have been; and others while telling the from petrified witnesses? As a minor Singapore. The point to take from this is explanations or qualifications, and the cross- truth, either tell it badly, or from their own digression, I once put an otherwise confident that scare tactics or aggressive questioning examiner and witness talk at cross purposes, perspectives which may not be in accord and blunt contractor on the stand. He was does sometimes work, but at other times, is rendering the cross-examination otiose. with your client’s views. One cannot take in court for the first time, and when cross- counter-productive for getting to the truth, None of this helps the court determine the a broad brush approach and treat them examined, was so nervous that he referred and therefore a degree of restraint and true state of affairs. My view is that with the as or accuse all of them of being liars just to the judge as “Your Majesty”! Aggressive discretion is called for. benefit of an audio transcript, there is no because their evidence does not conform to and robust cross-examination can reduce Another practice which could result in harm in giving the witness some latitude, your client’s case. While that may amount an honest but timid witness to jelly, and it is unfairness is when counsel is overzealous to dispel any subsequent objection that a in controlling the witness in the course of witness was not allowed to give a complete answer. The additional time used is marginal. 10 Per Hope JA in Albrighton v Royal Prince Alfred Hospital 11 Cheong Ghim Fah v Murugian s/o Rangasamy [2004] cross-examination. It is not uncommon to see [1980] 2 NSWLR 542 at 782. 3 SLR 193. counsel, when cross-examining the witness, On occasion, a witness, given sufficient
18 | | 19 Big Picture Big Picture
opportunity to explain, may even end up would have otherwise emerged during cross- enduring”.13 This is not fulfilled if we are economical with the discrediting themselves by the content or examination but for the witness being cut off. truth. It has been said that so far as we can, without actually manner of that explanation. Perhaps we need a change of mindset letting our client down, we should be completely frank in Continuing in this vein, cutting off to see cross-examination as a tool to help all our dealings with the court, with our fellow solicitors and a witness can be hazardous to one’s own the court unravel the truth, instead of using with members of the public generally.14 On this duty to the case. I recall a case where my witness was it as a tool to force the evidence into our court in our pursuit of justice and not victory, there can be no repeatedly cut off when he was trying to case theory. Most counsel never consciously compromise. explain or qualify his “yes” or “no” answers. attempt to mislead the court, but we are Benjamin Disraeli once said that “justice is truth in action”. Later in the cross-examination, he would be human, and do try in subtle ways to make Without a commitment to getting to the truth of any matter, asked questions like, “You said ‘yes’ just now, the evidence conform to our client’s theory justice is not served. I can do no better than to borrow that cannot be correct because ...”. As he had of the case. The checks and balances lie Justice V K Rajah’s parting observations in Public Trustee v been unable to qualify the previous “yes” in our conscience as officers of the court. By Products Traders Pte Ltd, “In the final analysis, solicitors answer, and was not allowed to qualify his Counsel need to be alert to the need to keep [because of our fused profession, ‘and advocates’ is implicit current “yes” or “no” answer, the evidence, the cross-examiner in check, to object when in this reference], as officers of the court, must in their on its face, was inconsistent or unintelligible. witnesses are badgered, or when they are not dealings with the court acknowledge that their obligations To his annoyance, he was continuously allowed to complete their answers. It is our to the court reign supreme, over and above their client’s accused of lying, but still not allowed to role to assist the court when we think that and their own interests. When they enter the profession, justify his answers. I raised continuous the cross-examination is being abused, or the solicitors accept a responsibility, they must be committed objections over the course of the cross- witness is being bullied. The role of the court to ensuring the sanctity and soundness of the legal system examination, requesting that the witness be is to play referee (while judges can protect and the administration of justice. Solicitors must aid and given a chance to explain, and predicted that witnesses, they should not automatically be assist, and never impair the court’s ability to discharge much of my re-examination would simply expected to do so12), and ultimately develop its impartial adjudicatory responsibilities. They must be asking him to complete his answers. some level of consensus on how they deal recognise and affirm that the practice of law is not an I added that if this happened, following with overzealous or over-robust cross- amoral business geared purely towards the pursuit re-examination, opposing counsel would ask examination. and satisfaction of private ends.” for a second round of cross-examination. The trial judge noted this but chose not to OUR DUTY TO THE COURT AND THE PURSUIT 13 Public Trustee v By Products Traders Pte Ltd [2005] interfere. Subsequently, on re-examination, OF JUSTICE 3 SLR 449 at [30]. the witness was able to rebut and explain While we can present our client’s cases in 14 Michael Cook et al, Cordery on Solicitors (9th Ed, 1995) the accusations made in cross-examination. the best light reasonably possible, we need at para 1404. As anticipated, opposing counsel asked to be frank and candid about any problems for leave to cross-examine on these which may affect or compromise that explanations. I objected saying that if the position. Our duty of candour in any given cross-examiner chose to cut off the witness case is “indivisible, uncompromising and on almost every occasion, he could not get a second bite off the cherry. The judge agreed. 12 Though from observation, and anecdotal evidence, judges have since the early 90s become progressively While this was procedurally correct, we lost less tolerant of rude cross-examination or badgering of a the opportunity to test the information that witness.
20 | || 2121 In Focus In Focus
Paul Tan outlines IS the Scheme of appointing Senior Counsel (“SC”) too blunt In Defence of the evolution of as an instrument for recognising good litigators? Does the the Senior Counsel Scheme distort the free market? Does it serve any purpose Scheme and focuses given the present plethora of legal publications that rank on the effectiveness the Defensible: lawyers? Or has the Scheme been successful in its original of such a scheme. An Overview of the Senior aims of raising the standard of the local Bar, to inspire young lawyers and to create a ready pool of lawyers from which Counsel Scheme judicial candidates may be sourced? The recent Horizon Towers saga brought together five SC, and their performances were so riveting that one spectator was reported saying, “Can you imagine a young lawyer doing it? He would have been slaughtered.” We expect, of course, that SC would always be equal to the task. But the perception that lawyers who are not SC are no match for SC may be somewhat unfair. On the tenth anniversary of the inception of the SC Scheme, this article reflects briefly on how the Scheme began and has evolved, evaluates its effectiveness today, and questions its relevance in the future.
A BRIEF HISTORY Although the first batch of SC was appointed in 1997, the legislative framework for such appointments had already been passed some ten years before that. In 1989, the Legal Profession Act (Cap 161, 2001 Rev Ed) (the “Act”) was amended to allow the appointment of SC to those with standing of at least ten years, if, “by virtue of that person’s ability, standing at the Bar or special knowledge or experience in law he is deserving of such distinction”. As Minister for Law, Prof S Jayakumar then explained, “our [SC] will, in effect, be the local equivalent of Queen’s Counsel in England and it is hoped that these leaders at the Bar will provide the inspiration for the younger members of the profession to strive for excellence in their profession”. [Singapore Parliamentary Debates, Official Records (17 February 1989) vol 52 at cols 744–745 (S Jayakumar, Minister for Law).] The Queen’s Counsel (“QC”) scheme which is the basis of our SC Scheme may be traced back to the 16th century By Paul Tan, Legal Practitioner
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when leaders of the Bar were appointed as King’s Sergeants occasionally). Another academic honoured with the title of as advisers to the Crown. Appointments to the common SC, Prof Andrew Phang Boon Leong, is presently Judge of law court Bench came only from their ranks. However, Appeal of the Supreme Court of Singapore. their role diminished with the appointment of the King’s Attorney (the equivalent of Attorney-General (“AG”)) and A CYCLE OF CREATING AND RECOGNISING TALENT? the King’s Solicitor (the equivalent of Solicitor-General As a mark of distinction, the appointment of SC was intended (“SG”)). Consequently, a body of assistants to these two both to recognise a maturing Bar and to incentivise the local principal legal officers was created and they were known Bar to raise its standards of advocacy. Not only would the as the King’s Learned Counsel. In time, however, the King’s desire to be conferred the title of SC be a powerful rousing Learned Counsel were regarded more as ranks of distinction factor for lawyers generally, those who are appointed as SC than as deputies to the AG and SG. Following from this are likely to be stimulated to work even harder in order to more modern development of the scheme in England, our meet the higher expectations of them. In this regard, SC Scheme is patterned on appointments being ranks of Mr Michael Hwang SC, who was among the first to be distinction; awarded in recognition for the highest standards appointed as SC, believes that the Scheme has probably gone of professionalism and legal expertise. a long way in promoting excellence among litigators. By operation of s 30(3) of the Act which deems the AG Our courts, too, share this view, and have demonstrated and the SG to have been appointed as SC, the first SC to be this in their growing reluctance to admit QC on an ad hoc appointed were former Attorney-General Tan Boon Teik and basis. former Solicitor-General Koh Eng Tian. Interestingly, although Indeed, in the year before the first batch of the Act permits all Legal Service officers to be eligible for SC was appointed, it was reported that appointment as SC, it is likely that the only legal service approximately 20 cases were being officers who will be conferred the title of SC will be the AGs handled by QC; whereas in and SGs. The rationale behind this, as former Chief Justice the last ten years, Yong Pung How explained in his speech at the Opening of the Legal Year in 1997, is that the Legal Service is a graded service with its own indicia of recognition. The first, and largest, group of practitioners appointed as SC was comprised of only male lawyers, and was described by the press largely as general litigators. Appointments, however, have since diversified. The second group of practitioners appointed as SC included three female lawyers (one of whom, Ms Belinda Ang Saw Ean, now sits on the High Court bench), as well as specialists such as Mr Steven Chong, who is known for his expertise in shipping. Over the years, the pool of appointees has included practitioners in small firms (Mr R Palakrishnan in 2001), criminal defence lawyers (Mr Palakrishnan in 2001 and Mr Sant Singh in 2007), and academics (Prof Tan Cheng Han in 2004, who also practises
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the number of QC admitted on an ad hoc basis have been because as clients continually turned to QC, even very good few and far between. Notable exceptions include Charles junior barristers might be deprived of the opportunity to be Gray QC in the defamation case between then Prime Minister engaged for the best work. Goh Chok Tong and Tang Liang Hong; Jules Sher QC in the This worry, as it is relevant to the SC Scheme, has been Singtel-IDA dispute; and Michael Jacob Beloff QC and Stuart a cause for some study and debate in Singapore. Statistics Lindsay Isaacs QC in the Japura-Singtel dispute. gathered (albeit from a very small sample size over the last In an oft-cited passage, the late Justice Lai Kew Chai two years) suggest that as a percentage of cases heard in the praised local lawyers in the following terms (see Re Flint High Court and Court of Appeal, SC do not even appear in Charles John Raffles QC [2001] 2 SLR 276 at [9]): a majority of cases. In 2006, SC appeared in slightly above 28% of cases before the Court of Appeal; and in 2007, the [T]he local Bar has matured and is acquitting itself ratio dipped mildly to about 26% (as of the end of October). commendably. There has been forged and carefully As a proportion of civil cases heard in the High Court in nurtured, particularly over the last ten years, a body 2006, approximately 8% were led by SC; and in 2007, about of [SC], potential senior counsel and an impressive 10% (as of the end of October). group of young advocates and solicitors, both in the Statistics also reveal that only in about one-fifths of public service and in the private sector, with excellent judges. However, there are DOES THE SC SCHEME DISTORT all cases in which an SC appears, there was another SC academic credentials and a right attitude. other qualities that one THE FREE MARKET? representing another party. To some extent, this shows looks for in a judge – judicial If SC are regarded, in that clients are discerning and do not engage SC simply Most recently, Tay Yong Kwang J in Re Millar Gavin James temperament and a desire some respects, as first to achieve an appearance of “equality of arms” for its own QC [2007] SGHC 178 went further and observed that “as for public service, for among equals, and even sake. the local Bar continues to mature and the number of SC example – that perhaps form the bulk of judicial Of course, these figures do not tell the whole story. increases”, allowing QC to be admitted even on an ad hoc explains why the correlation appointments, can it be Due to the impossibility of definition, they would not, basis would be “increasingly incongruous”. is not exact. It would be argued that the SC Scheme for example, reflect the proportion of “high profile” or Together with raising the standard of the local Bar, one inaccurate, therefore, to view exercises a distorting effect “landmark” cases handled by SC. However, the numbers of the aims of the SC Scheme was to “create an elite set of the title of SC as restricting on the free market? When do provide some reassurance that the broader litigation lawyers who could form a pool from which future judges could the field from which the abolition of the QC scheme community and particularly young lawyers are not being be selected” (see the Singapore Academy of Law Newsletter higher Judiciary is selected, was debated in England, one deprived of opportunities to do meaningful litigation work (February 1997) at p1). Statistically, of the six appointments or viewing the rank of SC as of the arguments in favour to develop professionally to the best of their abilities. to the High Court bench from outside the Singapore Legal a prerequisite to a judicial of abolition was that the Indeed, one of the hopes in institutionalising the Service after the SC Scheme took root, four were SC at the appointment. In truth, even if scheme was unnecessary SC Scheme was that it would attract more lawyers to time of their appointment to the Bench. Of the three Legal one may look to the pool of because the free market litigation and more young lawyers to stay on as litigators. Service officers appointed to the Bench, two were SC by SC as an obvious source for could serve the same Mr Anand Nalachandran, former Chairman of the Law virtue of s 30(3) of the Act. judicial candidates, the two function. Moreover, some Society’s Young Lawyers’ Committee, opined that the SC Although these statistics are not conclusive, they show appointments are probably went as far as to suggest Scheme was beneficial to young lawyers in two ways. First, a strong correlation between SC and judicial appointments. sufficiently different and that it distorted the free the opportunity to be recognised may provide incentive to This is not surprising given that many of the qualities required should be regarded as market since it created the young lawyers to excel. Second, it provided a benchmark of of SC – including intellectual prowess, professional skill positions of honour in their impression that the only professionalism to strive towards. Young lawyers could learn and ethical bearing – are the same qualities one expects of own rights. lawyers worth hiring were QC and be inspired by working with or observing SC.
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It is also worth observing that the courts do recognise the relevant in an age where rankings by legal publications be true for non-litigators talent and promise of young lawyers. Justice Tan Lee Meng, abound. Whereas rankings by legal publications are based generally. in a recent application to admit a QC, said that (see Re Millar on clients’ feedback (who, in turn, tend to prize winning in Gavin James QC [2007] 3 SLR 349 at [24]): high profile cases as the dominant consideration), the SC CONCLUSION Scheme confers a title based primarily on observation by By most accounts, the The pool of talent has increased considerably since the Judiciary* over a substantial period of time as to how SC Scheme has been 2001. Apart from the fact that more SC have been well counsel have discharged their professional obligations successful in raising the appointed, it must be noted that for the purpose and functions before the court. It is precisely because the standard of the local Bar, of determining whether there is enough local legal appointment as SC is not contingent on winning records or both among senior and expertise in any particular area of law, one must beholden to influential groups of clients that it is able to young lawyers. Additionally, be mindful of the many younger lawyers who have act as an important counterbalance against an unhindered by recognising counsel repeatedly impressed with their knowledge of the law pursuit of commercial success at the expense of nobler who are able to respond to and advocacy skills. aims. To take just one example, it is no secret that criminal their clients’ commercial litigation is not a lucrative trade; and therefore does not needs in a professionally This again shows that notwithstanding the SC Scheme, feature in many, if not any, of the legal publications. But for and ethically responsible there are opportunities for young lawyers to excel, and the the SC Scheme, truly excellent criminal litigators would not manner, the Scheme benefits courts are taking notice. be recognised. the operation of the justice The argument that the SC Scheme may have a distorting system and the rule of law effect on the forces of the free market assumes incorrectly that THE SC SCHEME AND THE NON-LITIGATOR generally. As our legal lawyering is simply a two-dimensional relationship between While it remains likely that the SC Scheme is here to stay, services market grows and counsel and client. Especially in litigation, counsel owe a duty there is, however, a question at the back of many minds, develops, the continuation to the courts as well as their clients. Although they should be which is whether non-litigators should also be appointed of the SC Scheme, and the permitted to prosecute their clients’ cases vigorously, they are as SC.** While this is technically possible, there is a serious new directions it takes to obliged to do so within the framework of certain ethical and handicap in the ability of the Judiciary to observe and assess accommodate changing professional obligations to the court. the work of those who do not appear before them on a needs, will no doubt remain To the extent that the SC Scheme may not necessarily regular basis. an important driver in reflect the free market, this only means that the Scheme has One counter-argument to this has been that academics, motivating the local Bar “to been successful in persuading members of the Bar to view too, do not regularly appear in court, but have been strive for excellence in their their own commercial interests within a broader compass. As appointed as SC. While this may be true, the works of profession”. Jonathan Sumption QC observed in his written response to academics, being an important secondary resource in the Department of Constitutional Affairs during the review of litigation work, may be evaluated by the Judiciary in the * More on the criteria for the QC system, the court system would be worse off, and its way such works are referred to in court and the degree to selection of Senior Counsel work impossible, if judges could not rely on the objectivity and which such works impact the outcome of a trial. As Prof Tan may be viewed at pp30–35 of integrity of counsel who appear before them. The SC Scheme, Cheng Han SC notes, conferring the title of SC on academics this issue of Inter Se. like its English counterpart, actively promotes, encourages and affirms the integral association and interplay between recognises those who make the effort to strike that balance. academic work and the development of case law. The ** More on honorary SC The latter point – that lawyers simultaneously discharge Judiciary is therefore in a position to assess an academic’s may be viewed at pp33 and a public function – also explains why the SC Scheme remains contribution to the law; whereas the same is less likely to 34 of this issue of Inter Se.
28 | | 29 Up Close Up Close
Inter Se approached the Senior Counsel Selection Committee for an understanding of the Senior Counsel Scheme (“SC Scheme”) from those who evaluate The Leading Questions: and select from its applicants. The Honourable the An Interview with the Senior Counsel Chief Justice Chan Sek Keong, a representative of the Selection Committee, delves into some of the questions Selection Committee we posed and shares his views on them.
What circumstances led to the In other words, without a formal implementation of the SC Scheme in SC Scheme, we could end up short-changing Singapore in 1997? Was it a matter of our own lawyers. The situation was, natural progression, having cut formal unfortunately, exacerbated by the perception legal ties with England in the early 1990s? that QC would get a better hearing from the Or was the Scheme started to provide a Judiciary than local advocates, with the result career path for practitioners? Would not that if one party appointed a QC to represent competence, reputation and previous him, his opponent felt that his case would experience provide adequate distinction? not be given the same consideration if he did How important was it, at that time, to put not appoint another QC to represent him. In in place a scheme that would allow the order to build up our own corps of advocates Singapore legal community to develop its that could be immediately recognisable own pantheon of respected advocates? by prospective litigants and also by other It was extremely important for Singapore advocates and solicitors, the SC Scheme was to put in place a formal scheme whereby introduced. Such a public recognition would our best advocates would be accorded due also serve as an incentive for advocates to recognition by the Judiciary for their legal improve and enhance their legal expertise expertise and advocacy skills. In the absence and advocacy skills in order to attain that of a such a scheme and the easy availability status. of Queen’s Counsel (“QC”) to plead in our courts, it was inevitable that however good Clearly, the SC Scheme is patterned on or skilful our advocates might be, they would the tradition of QC in England. Is the be looked upon by litigants and the public as Senior Counsel (“SC”) simply “Singapore’s second-class litigators and inferior to any QC, equivalent to the QC”? whatever his seniority might be. This did not The SC Scheme was, of course, based on the reflect the reality in many cases, although in English QC scheme which had a long history general it had to be conceded that the best and was recognised throughout the common QC was a notch above our best advocate. law world as being able to identify the best
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So we need to take into account the is character. It is very difficult to define (Cap 161, 2001 Rev Ed), however, is framed societal context in which we have established character but what we look for is the integrity broadly so that it is possible that non- the SC Scheme. I do not think it is feasible, and honesty of the applicant and whether advocates may be appointed under it. given our political, economic and cultural we have implicit trust in him in doing the Is the SC Scheme advocate-centric simply circumstances, that we could or should aim to right thing, such as not misleading the court because it has evolved from a tradition produce SC to challenge the role of English in small things, citing legal principles out of that was reserved for English barristers or QC in the common law world, although context. This means that those advocates who has it been a deliberate decision? from time to time, it is possible that we may plead before the Court of Appeal often are Currently, the SC Scheme is meant for produce a few SC who can match the best the most likely to be noticed and assessed advocates. We are not contemplating of the English QC in terms of advocacy and on their character and merits long before appointing pure corporate lawyers as SC, mastery of the relevant law. For example, they apply for appointment as SC. Others although we will continue to appoint first- to my personal knowledge, we have today a who appear in the High Court will of course class academics as SC. One serious problem number of SC who are equal to the best QC be assessed by the judges before whom they is that the Selection Committee may not have or at least better than many QC who have have appeared. the requisite knowledge to assess corporate appeared before our courts. lawyers. We cannot rely entirely on the Are there regular re-appraisals and judgment of others for this purpose. The title of SC is awarded to an advocate re-accreditations of SC? If so, what is the We might consider appointing Legal and most skilful advocates to provide the and solicitor of the Supreme Court of basis? If not, should there be? Officers with the requisite advocacy skills and best legal services that money could buy. Singapore or a legal officer who, in the The current system does not provide for legal knowledge as SC if there is a need for The English QC Bar is a relatively large Bar opinion of the Selection Committee, is regular re-appraisals or re-accreditations of it. Currently, the AG and SG are ex officio SC. made up of a sufficient number of barristers deserving of such distinction “by virtue SC. Frankly, we did not think about it when to specialise in all areas of law, however of the person’s ability, standing at the the legislation was drafted. We might have to Are the selection criteria different for esoteric they may be. The English QC Bar Bar or special knowledge or experience reconsider the need for it. In England, practising SC and honorary SC? enjoys the advantages of volume and depth in law” and “the emphasis ... will be a QC’s normal occupation is to plead in court. The selection of honorary SC would be from in terms of the types of legal problems in all upon outstanding ability as an advocate, Therefore according a barrister the honour of a very small circle of academics who have a fields of law that come before the courts. professional integrity and maturity, a QC appointment does not change his normal proven record of outstanding contribution to Singapore is a small jurisdiction, but there is extensive grasp of the law as well as a occupation. But, because Singapore has a the development of the law. no reason why in most areas of law practice, successful practice”. What are the Selection fused profession, many of our SC have been our SC are not in a position to offer legal Committee’s benchmarks for these broad pleading less and less. So, in order that the SC What might be the response to those advice or services of a quality equal to many criteria? Scheme does not fall into disrepute where SC who argue that in the light of Singapore’s of them. A Singapore SC is not simply an In the case of some advocates who have find it more lucrative to evolve into corporate fused profession, the idea of a scheme for English QC transplanted with all the cultural been appointed as SC, it has not been lawyers, I will set up a committee to see “advocates” only is introducing a “quasi- values and prejudices of an English QC. difficult for the Selection Committee to whether we should impose certain conditions split profession” with the majority of A Singapore SC, having lived and worked agree that they deserved the accolade. In for the appointment of SC in future. complex litigation work going to a handful in Singapore all his life, and enured to the the case of others, there were questions of of SC? cultural values of a Singaporean, may not character. An advocate might be eloquent With few exceptions, the appointment of Whether or not we have the SC Scheme, necessarily view a legal dispute in the same or knowledgeable on the law, but one of SC is something associated with advocacy. litigation, whether simple or complex, had way as an English QC. the most important qualities we look for Section 30(1) of the Legal Profession Act always been confined to a small group of top
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quality and experienced advocates. That is a licence to charge higher fees. After all, lawyers. We must be focused on what we are In Inter Se Print (Jul–Dec 2007), the Chief inevitable in all professions. A surgeon who the client has a choice. He does not have trying to achieve through the SC Scheme. For Justice remarked that “Senior Counsel must has operated on a 100 cases is likely to be to pay the proposed fees because there are the moment, the senior judges are in the best act as role models for the young lawyers”. better than one who has just operated on enough SC in the pool of SC to cater to the position to judge who are the best and most Is there a mentoring scheme in place? ten. Experience counts a lot in advocacy. needs of clients. The SC Scheme does not trusted advocates of the day. In contrast, How may Senior Counsels fulfil this role Therefore, the establishment of the restrict competition* in any way, although it the commercial sector is in the best position effectively? SC Scheme does not create a monopoly of has to be admitted that the problem of SC to judge whether they are getting the best Role models are not supposed to act as litigation in SC. What it does is merely to give being conflicted out of difficult cases can be value for the fees they pay to their corporate mentors but simply to serve and act as recognition to the fact that they are already a serious problem. However, I should add counsel. examples of what a model SC should be, qualified to do the complex litigation work. that the current composition of the Court ie, to display the qualities that we look for It is inevitable that complex litigation work of Appeal is such that a party with a good The appointment as SC is on an in an SC, such as: (a) having a high standard will go more often to SC than ordinary case on the law and/or the facts is not likely applications basis. Why is this so? Has this of advocacy in terms of articulation of advocates, especially where the parties to lose the case because his advocate is less approach in any way prevented due credit arguments; (b) displaying knowledge of the are corporations or institutions with deep accomplished or skilful than the advocate of from being given to the deserving? Is substantive law relevant to the dispute; pockets. the other party. there an avenue for review for unsuccessful (c) having the ability to marshal complex facts candidates? and simplify them for legal exposition; In July 2002, the UK government published Are there plans to admit increasing There was no particular reason why we could (d) demonstrating mastery of legal procedure; a consultation paper entitled In the Public numbers of non-litigation practitioners not have adopted a scheme of appointing (e) having the ability to think on his feet Interest? seeking views on the perceived as SC on the grounds that specialist SC. But it cannot be a criticism of the Scheme and produce sensible rebuttals of contrary benefits and potential drawbacks of the knowledge of the law and high regard because an application has to be made. If an arguments or a state of mind that can deal QC system. Some of the concerns raised by the Bar is manifesting in increasingly advocate believes that he has all the qualities with unexpected difficulties or events; were: does the conferment of “QC” mean a diverse ways and the advocate-solicitor of an SC and deserves the appointment, he (f) conducting himself or herself with courtesy “licence” for those with the title to charge dichotomy is inappropriate to our local should apply to be so appointed. I do not to the court; and (g) most importantly, a higher fee? Does the award enhance a context? Is more being done to recognise see how an application system has prevented being exemplary in ethical conduct and QC’s competitive position over others? potential honorary SC who specialise in due credit from being given to the deserving. professionalism and someone whom junior Does the rank restrict competition and not areas of the law where the majority of There is no reason why an advocate should advocates can look up to and emulate. allow market forces freely to determine the his or her work is on paper or is directed be appointed as SC if he shows no interest In Confucian terms, he would be regarded allocation of resources? towards achieving resolution out of court, in being an SC. But this is not an inflexible as a “superior” advocate. Is/will Singapore facing/face similar issues? eg, lawyers in trust, tax, employment law? system. It is not uncommon for a deserving Our litigation Bar is a small Bar and most There are no plans to appoint non-litigators advocate to be given encouragement or Inter Se thanks the Chief Justice for of our best advocates are partners in as SC,** apart from qualified academics. Top some hint that he is fit to be appointed as SC. agreeing to this interview. the largest law firms. That is a natural corporate lawyers are constantly subjected There is no review for unsuccessful development because these firms would to evaluation and scrutiny by their clients applicants. They can apply as often as they * More on the SC Scheme and the free have the best research and other resources for the quality of their work. The Asian Legal think they have a chance of being appointed. market may be viewed at p27 of this issue of for any litigation. The conferment of the Business awards and also the rankings of Not all first-time applications succeed. In Inter Se. SC title would probably allow an advocate the Legal 500 directory are probably better any case, all applications are confidential to charge fees that are commensurate with guides to the quality of work of our non- and members of the panel will take sufficient ** More on honorary SC may be viewed at this standing. But, I do not think that it is litigation lawyers, especially the corporate steps to respect their confidentiality. p29 of this issue of Inter Se.
34 | | 35 Up Close Up Close
Confessions from Three Senior Counsel Three Senior Counsel speak candidly to Tan Boon Khai about the trials and tribulations of an advocate’s career, feeling like they are on top of the world, and the importance of staying grounded through it all.
By Tan Boon Khai, Legal Service Officer (left to right) Mr Harry Elias SC, Justice V K Rajah, and Ms Deborah Barker SC.
Ever wonder what makes a their personal perspectives the first SC appointed by the one of the “roses” amongst appointment of SC altered Senior Counsel (“SC”) tick? with you. As someone former Chief Justice Yong the thorns). the legal landscape in What drives and motivates mentioned to me, such Pung How in January 1997. If there is anything that Singapore? If so, in what them? Is the SC Scheme information was priceless It was certainly a privilege one should know before way? good for the Singapore (for everything else, there is when I managed to sneak meeting an SC (whether Harry Elias SC: It has legal profession as a whole? MasterCard, of course!). in an appointment with him in court or otherwise), it is certainly raised the standard What now for those who are So off I went, searching for at short notice. By some always be prepared. At each of the Bar here, but I must appointed as SC – is this the “answers” to these questions. measure of good fortune, interview, I posed three also say that the fact that end of it all or the beginning A senior member of the Bar I also managed to squeeze in thought-provoking questions you have these titles does of a new chapter in their once told me, “In law, it is not two separate interviews with to this distinguished panel of not make you a giant professional career? always about what you know two other SC. One was with SC. In typical SC fashion, because the giant is in the Several weeks back, about the law, but where you The Honourable Justice I took away more than man himself, not in the title, when Inter Se asked me to find the law.” As any lawyer V K Rajah, one of the I bargained for. Curious and I can certainly give you pen an article to mark the would do, I applied this piece youngest SC when he was to know what these three the names of several non-SC passing of a decade since of “advice” literally, which appointed in 1997, now distinguished SC shared with who are on par with our SC Singapore’s very own SC meant, for the purposes of Judge of Appeal of the me? Then read on! today. Are you saying I will were first appointed, these this article, approaching a few Supreme Court of Singapore; definitely have an advantage were precisely the questions of our most distinguished SC. and the other with It has been more than ten over them? Not necessarily. running through my mind. I started first with Ms Deborah Barker SC, one years since SC were first I am just putting these views After all, it is not everyday Mr Harry Elias SC whom, as of the few female SC (or, as appointed in Singapore. so that we do not get carried that one gets SC to share many would know, was one of I was reminded anonymously, In your view, has the away.
36 | | 37 Up Close Up Close
Justice V K Rajah: I think practitioner and judge, is of the town. If my memory ever being appointed as SC. inside at your own talent, is that it has made a serious that while an SC will certainly serves me well, a leading Appointment to the ranks good. I would also add, just difference to the litigation get a good hearing and daily had a banner headline of SC is just the beginning on a very superficial level, landscape in Singapore. be taken seriously when that read something like of another track and not the I certainly do not think QC Both for those within and he presents a case, other this, “Jane and the Two end point. stand out more than our SC outside the profession, lawyers are certainly not Tarzans”. Not all SC have today. there is now an independent disadvantaged if they do a well-rounded experience Deborah Barker SC: Even mark of quality. This mark have good cases or points that gives them a distinct before the day of SC, certain People often ask how it of quality is acknowledged to argue. Personally, I have advantage over advocates people were recognised as feels like being the cream as being objective and witnessed a number of who specialise in particular having risen to the top of of the profession. Has being largely accurate in singling cases where SC have not fields. So the advantage the profession and being an SC changed your life or out some of the better succeeded against parties conferred on an advocate very good in their field. But your practice? How so? advocates of the day. There represented by other as an SC is mainly one of the fact of having an SC H Elias: Not particularly, is now a presumption that advocates. Indeed, I am market recognition and an quality mark has assisted although what it did give an SC has all the necessary sure many of us can still acknowledgment within the that trend, and certainly me was the pride and joy prerequisites to handle remember the matrimonial legal community that the assisted our profession by that I had been part of the the most difficult and matter where two well- advocate concerned is one of allowing us to rely more first batch to be chosen sensitive cases. Having known SC roundly lost their the better advocates, but it on our own resources. The from among the profession. said that, it is important arguments and bearings is by no means a guarantee very fact that you have a You certainly feel honoured. to recognise that for one against a feisty female that that SC will succeed selected group approved Did I celebrate? I would say reason or another, there are litigant in person. in all their cases and/or by their profession and the “yes”. Did I bring a lot of a number of extremely good It was the will be more effective than Bench has encouraged the joy to the family? I would advocates who are not SC. talk other lawyers in all cases trend of not looking outside undoubtedly say “yes” also. My experience, both undertaken. At the end of for foreign Queen’s Counsel And did I walk around with as a private the day, I can now say with (“QC”). You look inside to a strut? At the beginning, confidence, the court looks whoever you have here, “yes”! But over the years, it at the message and not and this is a good thing. Of is an accepted norm that you the messenger. I must also course if there is someone have more critical matters stress that being an SC is who is really the best or the to do other than strutting not necessarily the be all only one in that area, a QC around. And one of the and end all. One can be would still be available to be things that SC should, and At the end of the day, I can now say recognised as being a appointed, and I would have must do, is to give back to with confidence, the court looks at the good and effective nothing against that. So the the profession. So for me, advocate without SC Scheme, by encouraging I would like the day to come message and not the messenger. local lawyers and setting the when the phone rings, and trend to look someone says, “My name
38 | | 39 Up Close Up Close
is XYZ, I have a criminal more involved either in been given this honour and Work on the basis that it is matter, my client is ... Can the Singapore Academy of privilege, you should give important to maintain your Receiving recognition from the you please come and help Law and/or the Law Society back to the profession and credibility with the court at court and/or your peers will bring on a free basis?”, I would say of Singapore, working do some “national service”. all times by showing that “yes”. with them, through legal Personally, I also wanted you have applied yourself to with it an incalculable measure of education or in the various to get the appointment in the matter and have covered satisfaction. Rajah JA: It was a matter committees. As a quid pro memory of my father, and all grounds, factual and/or of considerable pride quo for the recognition, in that sense, I was very legal. It is also important to and satisfaction to be they ought to make time pleased and honoured when establish a rapport with the appointed as SC and to contribute to the legal I did. court. Once you have done thereby ranked amongst community. I hope more, if that, it leads to a better the better advocates in not all, will step forward. The Finally, what are some hearing. After credibility is abiding commitment to the experience – you reach highs Singapore. The fact that Senior Counsel Forum* is things which, as an SC, you established, the court will profession and its ideals. It and lows. Personally, I find this was among the very unfortunately rather lacking would share with our young be prepared to repose more must also be appreciated doing cases exciting, and it first appointments made it in vigour and direction. lawyers today? Is there a confidence in the advocate. that one cannot be always gives great intellectual joy special. I must acknowledge secret to your success which Second, be passionate about correct or successful. and satisfaction. So I think that it benefited my practice, D Barker: It has not changed you could impart to today’s what you are doing. The Accept adverse results with there is a very special job and gave me an extra fillip my life in any real way aspiring young litigation satisfaction comes not so equanimity when you have satisfaction, but you must do with clients who were not I suppose, although I recall lawyers? much from just the material done your best and move on. it to know about it, so I would familiar with me and/or my that when I was appointed H Elias: That is a difficult rewards but from the sense encourage young people to practice. The fact that there as SC in January 2001, about question. A lot of young of pride in craftsmanship that D Barker: I can see why try it. You must, however, were so few SC initially a week later I conducted people nowadays make the when a job has to be done, some young lawyers feel distinguish this satisfaction appointed did not hurt. a case before the Court of mistake of coming into the it is done well. Receiving that they will have a less from glamour, I do not recall It also encouraged me to Appeal. I remember feeling law without knowing what recognition from the court stressful life if they are not in it being glamorous at all, grow the firm rather rapidly. very nervous, because in it is all about. So I would and/or your peers will litigation or in the profession given that it involves a lot of But let me say this. With my mind I was wondering encourage those who wish to bring with it an incalculable at all, or if they are in-house hours and hard work! the benefits and privileges whether, now that I was an practise law to find out what measure of satisfaction. counsel. I would think one comes a responsibility to the SC, the court expected me exactly it is before jumping The greatest satisfaction in has to accept that and Inter Se thanks Mr Harry legal community to share to be brilliant, and whether in. litigation is being able to that we cannot completely Elias SC, Justice V K Rajah knowledge and expertise. I would be able to live up to bring a personal dimension eradicate the trend of and Ms Deborah Barker SC I like to think that I played the court’s expectations? So Rajah JA: There are two to a matter which perhaps litigation lawyers leaving for their time in granting us my part. Today, I feel that the one thing about being or three attitudes I would few others could have the profession. To a large this interview and wishes a small fraction of SC may an SC is that you do feel like to share. They are not brought, in short, being able extent, litigation requires them every success. not be wholeheartedly some pressure about the peculiar to me. First, always to make a tangible difference a certain mindset and discharging their role as standard you may have to be thoroughly prepared for to your clients and to the character, but for those who * More on the Senior role models for younger live up to and that all eyes any court appearance. It is court. In the final analysis, have it, I would say that it Counsel Forum may be advocates. This disappoints are on you. Also, there is the better to be over-prepared this can only be effectively can be very satisfying. Doing viewed at p43 of this issue of me. I hope all SC will be feeling that since you have than under-prepared. done if there is a real and a case can be a thrilling Inter Se.
40 | | 41 Minority Report Minority Report
Up to 1997, clients sought lawyers based say that each of them is an experienced and Senior counsel, on recommendations of their seniority and a respected member of our legal profession expertise. In the Opening of the Legal Year who would have been well sought after 1996, then Chief Justice Yong Pung How even without his or her appointment as SC. the subordinate said, “Over the last few decades, our legal Yet, appointment as SC is something more profession has grown in experience and than just an official form of accreditation courts and two expertise; and I think the time has come when recognising the best in Singapore litigation. we are ready to endorse those at the apex of There are heavy responsibilities that come the profession.” One year later, Chief Justice with the status. First, SC stand at the lessons learnt Yong, at the Opening of the Legal Year 1997, forefront of assisting the various stakeholders announced the appointment of Singapore’s in the administration of law and justice. first 12 Senior Counsel (“SC”). Second, SC are expected to work with RAJAN CHETTIAR INTERVIEWS Legal Service officers, lawyers who excel their fellow lawyers to improve standards MR MICHAEL HWANG SC AND MS ENGELIN TEH SC in their practice and academics who make of professionalism and to enhance the ON THE ROLE OF SENIOR significant contributions to legal education quality of legal services. SC have a duty not COUNSEL WITHIN THE LEGAL have been appointed as SC. As at 2 July 2007, only to display high standards of integrity, PROFESSION, THE WORK OF 41 men and 5 women have been appointed as professional conduct and legal skill but to SENIOR COUNSEL IN OUR SC. This number grows each year. encourage, by example, similar standards in SUBORDINATE COURTS AND The SC appointment is much-coveted. the wider legal community. Recognising their ON IMPROVING PROFESSIONAL STANDARDS IN SUBORDINATE Although the exact number of applications responsibility as role models, a handful of COURTS PRACTICE. filed by lawyers aspiring to SC status every SC in private practice decided to proceed in year is not known, it is understood that of the direction of collective action in 2001. The the many lawyers who apply to the Selection result was the Senior Counsel Forum. Committee headed by the Chief Justice, the Attorney-General and the Judges of SENIOR COUNSEL FORUM Appeal, only a handful from the pool of Headed by Mr Michael Hwang SC, the Senior applicants is eventually selected. In 2002, Counsel Forum (the “Forum”) is an informal Chief Justice Yong gave an insight into the group which communicates through e-mails selection process by sharing that all the facets and holds two dinners a year. The first of of a lawyer’s career are considered during the two yearly dinners is to welcome new SC the selection process. Factors such as the appointed at the Opening of the Legal Year candidate’s grasp of the law, advocacy skills, and the second dinner is usually hosted in integrity, experience and standing in the Bar honour of a local legal luminary or visiting are fully considered. The views of all of the foreign legal dignitary. Apart from serving as Supreme Court judges are also sought before an important professional support network, the final selection is made. a key agenda of the Forum is to look at the Looking at the individuals who currently various ways in which SC can contribute to make up our pool of SC, it is reasonable to the administration of justice in Singapore. By Rajan Chettiar, Legal Practitioner
42 | | 43 Minority Report Minority Report
On the achievements of the Forum, manifest in the comparably large numbers controversial legal issues, which require common to read opposite parties’ affidavits Mr Hwang SC shared that through the work of High Court cases in which SC appear* careful analysis. She further elaborates on which contain numerous grammatical and of the Forum, a pro-bono mediation scheme and the relative dearth of SC appearances in the ways in which SC can contribute, “Some typographical errors. Their submissions are to resolve disputes between lawyers has been Subordinate Courts cases. provisions in the legislation require changes either poorly prepared or not prepared at set up. Some of the members of the Forum Both Mr Hwang SC and Ms Teh SC are well- in order to meet the changing world we live all. Judges should take issue with this and have been amongst the first appointed to act placed to shed light on this belief since they in. Cogent arguments have to be made to insist on certain standards from the lawyers as Specialist Judges under a scheme initiated have both acted in criminal proceedings in the effect these changes. Also, research needs to appearing before them.” in the Subordinate Courts. The Forum has Subordinate Courts. Mr Hwang SC pointed be conducted on corresponding law in other Ms Teh SC notes that institutional changes also functioned as a source of feedback to out that where SC appear is largely a matter countries.” to the Family Courts may also help to raise various committees. determined by clients, “Some clients feel that standards of professionalism which may be The activities of the Forum have not certain white collar cases and civil cases are of ADVOCACY IN THE SUBORDINATE COURTS suffering due to the increasing case loads prevented some from asking why SC are not sufficient importance to justify the expenses of To wrap up the interview, Mr Hwang SC and before the Family Courts. Her suggestions? doing more for the profession at the level engaging an SC. So, it is really up to the client Ms Teh SC were invited to comment on the Increase the number of deputy registrars of practitioners themselves. Highlighting whether he wishes an SC to represent him in apparent disparity in standards between and judges to cope with the sharp increase this to Mr Hwang SC during our interview, the Subordinate Courts.” Contrary to belief, High Court advocacy and Subordinate Courts in family matters, improve the administrative Mr Hwang SC explained that the main reason SC do not make a conscious decision to restrict advocacy. In the Subordinate Courts, system so that there is less difficulty in for the Forum not doing more for the legal themselves to appearances in the High Courts. Mr Hwang SC expressed that the standard getting urgent hearing dates and ensure profession was the sizeable demands on Clients have instructed SC on matters ranging of advocacy is more variable because of the that sufficient time is properly allocated for the time of SC who are often left having from suits in the courts to arbitrations, and large numbers of lawyers who go before the hearings. to juggle higher expectations from the many SC have appeared in Subordinate and courts, “I find it very disappointing to see Bench, Bar and clients as a result of their Family Courts. One example cited is Mr Lok Vi very senior lawyers not trying hard enough SUMMING UP appointment. “Having said that, there are Ming SC who appeared for the Defence when for their clients. A lawyer who makes a In my conversations with Mr Hwang SC some shining examples of SC who have Mediacorp actor Christopher Lee was charged plea-in-mitigation owes it to his client to and Ms Teh SC, I have come to realise two served the profession above and beyond the in the Subordinate Courts recently. say everything that can possibly make a important things. First, it should not matter call of duty,” states Mr Hwang SC who cites Ms Teh SC, a specialist in family law, is difference to the sentence and not merely what you are called, just what you choose Philip Jeyaretnam SC as one such person. quick to point out that the prejudice against say, ‘I leave it to the court to decide’.” On to do with your calling. Second, it should Mr Jeyaretnam SC has served four years as certain specialisations is misguided, “I do the other hand, Mr Hwang SC also notes not matter what your practice is, just how President of the Law Society of Singapore. not see why SC should not appear in family that there are a number of outstanding you choose to practise it. We can spend our law matters. I want to dispel the myth that senior lawyers who act in Subordinate Court professional days agonising about the whats SENIOR COUNSEL IN THE SUBORDINATE family practice is simple, factual and routine. matters. but we will probably be better off working on COURTS I have seen some opposing counsel making In the Family Courts, Ms Teh SC feels that the hows – for two lawyers I had the pleasure Moving on to another area of debate half-hearted efforts in advancing their clients’ the level of advocacy needs to be improved of speaking with, this has certainly been the surrounding SC, it was put to Mr Hwang SC cases. They lose their cases because of and that there is little that SC alone can do case, both in and out of the Subordinate and Ms Engelin Teh SC that being top insufficient preparation and poor advocacy and to improve it except to ensure that they Courts. lawyers, SC are at liberty to charge premium not due to unmeritorious cases. This is unfair take all steps to maintain the standards fees and that this has made representation to the client who instructs them.” in the presentation of their own cases. * More on the statistics of SC appearances by SC a privilege afforded to and affordable According to Ms Teh SC, family law is However, she is of the view that the Family in courts may be viewed at p27 of this issue by the privileged only. This may seem to not fairly settled in Singapore; there are Court judges can do more in this area. “It is of Inter Se.
44 | | 45 Minority Report Minority Report
Mark Goh debunks the THE Subordinate Courts are often perceived mistaken perception that the as the main arena for the small litigation firms. THE SMALL work of small law firmS is The extension of such a perception is that confined to procedural or the work of the small law firm lawyer in the administrative matters, is less Subordinate Courts comprises work mainly of challenging or demanding LAW Firm and is confined to the the procedural and/or administrative nature. Subordinate Courts practice. Compared to the larger firms’ high profile work in the Supreme Court, the work of the Litigator small law firm in the Subordinate Courts is less demanding intellectually and less glamorous. Thus, a small law firm set-up, with limited resources (in terms of both man and brain power), would fare well to stay within the comfortable walls of the Subordinate Courts. This article hopes to dispel the above perception.
THE SMALL LAW FIRM IS ANYTHING BUT SMALL The Law Society defines a small law firm as one comprising one to five lawyers and less. By that definition, the small law firm becomes stereotyped as a firm with limited man and brain power. The raison d’ tre for such a definition by the Law Society was not to typecast the small law firms, but was necessary for administrative reasons. Their putting a number to size was for different considerations, eg, insurance and training programmes. The number and delineation was not intended to limit small law firms to certain markets, or type of work or client. As at 13 August 2007, there were 690 small law firms in Singapore, and they are difficult and/or almost impossible to categorise, given the diverse nature of their business goals, economic considerations, set-up, proprietors’/partners’ profiles and areas of speciality. By Mark Goh Aik Leng, Legal Practitioner
46 | | 47 Minority Report Minority Report
While the list may not be exhaustive, some for research, management, billing, accounts, may be described as boutique law firms, clients’ log, presentation and archival needs. doing only one or two specific practice areas. With better and more intuitive search tools, Others may be described as community and the know-how to exploit the tools, a small law firms, having firm roots in and serving law firm litigator can use technology to shore a specific community, and yet others may up his arguments. be described as small poly-practice firms Perhaps the greatest contribution which offering reasonably priced, wide-ranging technology has given to the small law firm legal services. There is a common mistake lawyer is instant connectivity. Working in that small law firms are cheaper than larger an inter-connected environment, complex law firms and small law firms shrewdly exploit problems and issues are often floated between this to their advantage. friends. Being connected allows the small law firm lawyer to be in touch with the latest cases Technology levels playing field and developments in the community. Like In the epic battle between David and Goliath, David’s slingshot, technology allows the small the heavily armed Goliath was a formidable law firm lawyer to close the distance. foe to behold. Goliath’s choice of weapons At the heart of most small law firms, relationship, but oddly, the very idea – of were, firstly, “fear” as a psychological THE CLIENT TYPES IN A SMALL LAW FIRM the partners and proprietors strive daily to lawyer as counsellor – is today rejected in weapon, and secondly, size and strength. Perhaps the only distinguishing feature of cultivate the “dog” element of goodwill. certain professional quarters.” For decades, David would easily be defeated if the the small law firm would be the lawyer-client However, and because of common prejudices Arthur Liman represented the very best of the distance between him and Goliath closed. relationship. The type of clients a law firm about size and price, they have had their fair legal profession in America. David eventually defeated Goliath by retains may be evidenced by the classification share of clients who form no attachment to It would be erroneous to think that using the technologically more advanced of a law firm’s “goodwill”. “Goodwill” is the law firm nor lawyer. To the clients who litigation work begins only in court. On the weapon – the slingshot. The slingshot was best described as the probability of an old remain loyal to the lawyer, the lawyer is not contrary, it happens before the case goes to a projectile weapon and it allowed David to client returning to the old premises whether merely a service provider but also a friend, court. It involves counselling your client to strike Goliath from a safe, stand-off distance. or not the lawyer continues to occupy the confidant and advisor. manage expectations and organising his case. In skilled hands, the slingshot, launched premises. In the old English case of Whiteman A substantial amount of work, goodwill and accurately, proved to be more deadly than Smith Motor Company v Chaplin ([1934] CAN THE SMALL LAW FIRM LAWYER BE A revenue can and do come from the “lawyer as the sword. 2 KB 35 at 42), “Goodwill” was classified as “LAWYER COUNSELLOR”? counsellor” role. This is certainly true for the Likewise in skilled hands, today’s either the “dog”, “cat” or “rat” elements In his book, Lawyer: A Life of Counsel and boutique-type and community-type small law technology and advanced research tools of goodwill. The “dog” element of goodwill Controversy (PublicAffairs, 1998), Arthur firms. As for the small poly-practice type law have levelled the playing field for small law involves customers who remain attached to L Liman wrote, “Behind my desk hangs a firms, they can avert the scourge of the “rat” firm lawyers. More importantly, the cost the individual person. The “cat” element nineteenth-century Old Testament sampler element of goodwill, if they are able to latch of access to such technology is no longer customers are those who are attached to the that Ellen found for me in a flea market. It is onto some institution. prohibitive, when compared to about five to place, ie, the brand. The remaining customers from the Book of Isaiah, and it reads ‘Fear Economic reality compels small law firms six years ago. The platforms have become are those who are neither attached to the Thou Not, For I am With Thee.’ To me, the to pay attention to harnessing more of the more intuitive and user friendly. There is now person or place, and may desert both the quotation expresses perfectly what every “dog” element of goodwill, and do more a plethora of platforms, tools and software person and place. lawyer should strive for in the lawyer-client of the “lawyer as counsellor” type of work.
48 | | 49 Minority Report
Otherwise, the natural progression would INTERACTION WITH COURTS NOT DETERMINED be to build a house brand, so as to be able BY SIZE to attract clients of the “cat” element of Law firms, whatever their size or moniker, goodwill and do more of the institutional can choose how they wish to interact with type of work. The foundations for successful the courts. For some, economics will dictate small law firms comprise clients of the “dog” that the interaction gravitates towards the element of goodwill and performing this administrative/procedural types of work. It type of work. It cannot survive in a highly is true that the Subordinate Courts handle competitive market by constantly dishing out more of the administrative/procedural types highly administrative and procedural services of work, compared to the Supreme Court with low intellectual content. and special tribunals. The challenge thus for the Subordinate Courts is the ability UNDERTAKING LITIGATION WORK to discern between the types of firms, Unfortunately, and often, clients may have regardless of size. to face litigation. In such circumstances, the It is humbly proposed that such an “lawyer as counsellor” becomes the natural approach, will allow the Subordinate choice litigator. The client will expect its Courts to better cater to the diverse “lawyer as counsellor” to assume position needs of different litigants. Efficiency and at the helm, helping the client navigate the consistency may rank highly for litigants strange and unfamiliar waters of litigation. with administrative/procedural issues. While At the heart of most small law firms is the fair play and empathy may rank highly with “lawyer as counsellor”, the “lawyer as matters of great concern to litigants. litigator” is only an ancillary role. It does not matter whether the litigious CONCLUSION work undertaken by the lawyer in a small Small law firm lawyers practising in law firm is conducted in the Subordinate any court or tribunal should not be Courts, Supreme Court or other tribunal. characterised as only capable of handling Regardless of where it is conducted, the the administrative/procedural types litigation work involved is the same and it of work. It is not uncommon now to may be undertaken by big or small firms. find Senior Counsel practising as sole Whether in court or a tribunal, the client proprietors or in small law firm set-ups. expects the “lawyer as litigator” to perform Also, there are just as many small law in the same personal and professional level firms working alongside Senior Counsel as the “lawyer as counsellor”. The decision and Queen’s Counsel in the courts and to litigate in the Subordinate Courts may tribunals. be determined by constraints of finances, The small law firm lawyers are in fact resources and time, but that does not mean it such a diverse group, there is no one-size is any less challenging. fits all characterisation of small law firms.
50 | SC Project
They are Amongst Us: The Untold, Secret Story of the SC Project
By Adrian Tan, Legal Practitioner (and Inter Se’s freelance conspiracy theorist)
| 51 SC Project SC Project
Reader, beware the invasion of the that such applicants also Counsel”, and in other the post-nominal is because It is not true, further, that Superlawyer! Or are you one of them? have to undergo a secret countries, such as Sri Lanka, we are still too young, bored members of the press The truth is here. deoxyribonucleic acid the term used is “President’s and it is only a question of have placed bets on which (“DNA”) test to verify that Counsel”. The implication in time. Contented with this SC will produce the most they are in fact part of the those names is that Queen’s explanation, we ask no more shrugs in any given one-hour SC Project. Counsel and President’s questions. period. In short, therefore, an Counsel are lawyers who are SC have also shown fine Outside the courtroom, Modern science has a a new breed of Superlawyer SC is a genetically-modified so good that they are fit to disregard for their hair. Many SC are noticeable for lot to answer for. With in the form of the Senior barrister who is stronger, counsel the head of state. appear not to care about it, their curious gait. Many the advent of genetic Counsel (“SC”). smarter and more resistant On the other hand, the SC some have very little of it walk at speeds which are, engineering, scientists According to the to attacks from opponents. Project has eschewed such and one even covers it up. frankly, quite excessive in have been able to create Singapore Academy of Law In terms of billings, an SC labelling, preferring instead The garments favoured by SC the circumstances. Often, new breeds of organisms. website, SC are appointed also produces better yields to use the term “Senior”, are also noteworthy. In court, they rush into court (using Such genetically-modified pursuant to statute and for law firms, which explains which merely denotes age, they wear robes that, to put their statutory right to skip or “GM” creatures are by a selection committee why law firms are all eager to rather than skill. Obviously, it kindly, have seen better queues) and thereafter rush generally improved versions constituted under s 30 of grow or import their own. they had remembered their days. The idea is basically out again. In fact, it has been of the original species. For the Legal Profession Act How this breed of Julius Caesar, where Cassius the more bedraggled the recorded that the speed at example, in Europe, farmers comprising the Chief Justice, Superlawyer has assimilated remarked: robe, the more learned the which they depart a hearing are growing GM crops which the Attorney-General and the into mainstream legal culture wearer. is inversely proportional to produce better yields and are Judges of Appeal. is yet another stroke of You wrong me every Because many of the level of success they more resistant to herbicides The Selection Committee genius. The SC Project has way. You wrong me, their robes have lost have had at the hearing and pests. appoints SC on the basis sought to draw our attention Brutus. their shape, seasoned SC itself. Hence, an SC who Singapore is a hub for of applications received away from the immense I said an elder soldier, have developed what is saunters out of chambers the life sciences and it is not from persons who have had advocacy powers of the not a better. universally recognised as has usually had a very good surprising that it is at the a minimum of ten years’ SC (and resulting probing Did I say “better”? the “SC shrug”. Often, in hearing, whereas an SC who forefront of GM research experience as advocates questions of how it can be the middle of their ringing scampers out (usually with to create new and better and solicitors or as Legal possible for a mere lawyer to Shakespeare had oratory in open court, an a mobile phone attached to life forms. It is heartening Service officers or both. be possessed of such skill, no trouble making the SC will abruptly grab his each ear) is thinking of filing to note that one of the The Selection Committee grace and billing powers) by distinction between a better robe (which is fast slipping an appeal. first beneficiaries of the may appoint a member of linking this superior being soldier and one who was off his shoulders in a far The only time an SC new technology is the legal the Bar as SC if they are of with connotations of dotage merely “elder”. By the same from enticing manner) and suddenly slows down is when industry. Where hitherto the opinion that, by virtue and general lack of anything token, the key feature shared hitch up his garments in a he leaves the main door of the public has had to make of the person’s ability, resembling savoir faire. by all SC is their “seniority” violent shrug. Many High the Supreme Court. That is do with mere advocates standing at the Bar or special To start with, SC are, by and advanced years. That Court judges have been because one simply has to and solicitors, a marriage knowledge or experience in their very name, “Senior”, enables the rest of us who quite discreet in noticing the give the press photographers of science and the Legal law, the person is deserving ie, old. It is no accident are not (yet) SC to comfort number of times certain SC a fighting chance. (That is Profession Act (Cap 161, of such distinction. What that in England, the best ourselves by saying that the have shrugged in the middle usually the only time one 2001 Rev Ed) has introduced is generally not known is lawyers are called “Queen’s only reason we do not carry of their closing arguments. sees an SC smile –
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a terrifying sight where unused facial muscles are wrenched into shapes they are unaccustomed to hold.) By employing the “God is fair” approach to the engineering of the SC, the SC Project has had unparalleled success in maintaining the secrecy of its grand experiment. Sadly, there are simply not enough SC to go around. At last count there were only about three dozen in active practice. Hence, some firms have had to go without, even having a rattle at the If there is one thing, while other firms have end of its tail in an effort to however, that QSC have selfishly refused to share. imitate a rattlesnake. failed to master has been How can this issue of scarcity These quasi-SC (or “QSC”) the SC’s native language, be addressed? are no slouches. They are which is English, but spoken One innovative solution careful to adopt the grey- at such a rapid rate and has been for litigators, haired, grizzled and worn- with such complexity and who are not themselves out visage, curious gait and repetition as to sound SC within the meaning terrifying smile of SC and do almost foreign to normal of the Legal Profession it with the lack of panache ears. This lone quality is Act (ie, those lacking the needed to be convincing. what sets the SC apart requisite modified DNA), to Over the years, they have from everyone else in assume the look of an SC. evolved to such an extent a crowd. So, if you find The strategy of mimicry is that not only are the public yourself in the Supreme adopted from nature, where confused, but sometimes even Court one day, in a harmless snakes have fooled fellow lawyers are not quite courtroom or dining at the predators by evolving to sure. These QSC have played Academy Bistro, and come look like their more deadly an integral part in helping face-to-face with an elderly cousins by having the same the SC to assimilate into person dressed in shapeless colouring and – in the case mainstream society, allowing robes, listen very, very of the Eastern Yellow-bellied them to live amongst us in a carefully – you may just be in Racer (Coluber constrictor)– fairly inconspicuous manner. the presence of a real SC.
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Academy Turns 20! Academy Turns 20!
corporate lawyers and the academics in the so that the committees could implement law schools. activities for members. SERVING And LEARNING: On the occasion of its 20th year of working “To Build Up the Intellectual Capital EXPANDING ITS SERVICES AND REACH OUR 20TH ANNIVERSARY and Infrastructure of our Members”, we take Just like its people, the Academy has grown a brief look at the path taken thus far and over the years. The Academy’s increasing commemorate good times – so COME ON! ability to do more for the legal community Read on. Let us celebrate ... has been credited to its Senate leadership, its strong institutional networking structure EARLY DAYS and talent base and its ability as an umbrella The Academy started small. There was no body for the legal fraternity to pull together single institution where different branches the Bench, the Bar, academics, legal officers, of the legal profession could gather to in-house counsel and legally-trained people share experiences and expertise and working for large companies and businesses facilitate social and professional interaction. in Singapore. “The Academy of Law fills this void,” said The diversity of its membership has meant former Chief Justice, the late Dr Wee Chong that the Academy’s focus has not just been Jin, who was also the first President of the on services catering to traditional litigation Academy. At its opening, Chief Justice Wee but on a whole host of dispute resolution said that the Academy would strive to alternatives. The primary work relating to provide “a comfortable venue and genial alternative dispute resolution (“ADR”) has surroundings for all its members to interact been undertaken by the Singapore Mediation socially ... relax and meet friends and also to Centre. enrich themselves in the law and contribute to its development”. ADR services In 1990, the Academy’s Senate was The Singapore Mediation Centre (“SMC”), made up of eight committees: Publications, a subsidiary of the Academy was formed Library, Legal Education, Membership & in 1997, focusing on providing commercial Rules, Law Reform, Endowment, House & mediation services in Singapore and Social, Young Lawyers and Students’ Affairs. mediation training workshops regionally. “The Academy has to create a strong on 1 November 1988 under the Singapore Resources were thin and the committees The idea of SMC was first mooted collegiate feeling, set the tone for the Academy of Law Act (Cap 294A). worked with what they had, supported by by The Honourable the Chief Justice profession, and regain for it the high esteem The Academy was, and continues to Supreme Court Assistant Registrars and Chan Sek Keong in his Opening of Legal Year of the public.” This is how Minister Mentor be, the first institution of its kind to bring a few legal officers from the Attorney- address in 1996 when he was then Attorney- Lee Kuan Yew defined the work of the together the various branches of the legal General’s Chambers. In its early days, General. He was inspired by an article he Singapore Academy of Law (the “Academy”) profession under one membership body. the Academy was unabashed in asking read on how some states in the United States at its official opening in August 1990, Its members include the Judiciary, private and accepting donations from charitable had successfully used mediation to resolve two years after the Academy came into being practitioners, the Government Legal Service, foundations, firms and individual well-wishes family law disputes.
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(left to right) ADR services – SMC’s Tenth Anniversary and Launch of Asian Mediation Association; Academy Publishing – publishing arm of the Academy; Launch of LawNet2; Legal Education – SAL Conference 2006 and Launch of SingaporeLaw website.
In late December 1996, the Supreme available. This growing resource was to written grounds.” The Digest provided a legal knowledge, the Academy has actively Court and the Academy stated a pilot project become the foundation for a number of quick, weekly update for the profession on pursued electronic publishing avenues as well under the chairmanship of then Justice key Academy projects over the next two the latest on case law. “As we had more in the form of the Legal Workbench and more Goh Joon Seng to study how SMC could decades. resources, we published the Annual Review broadly, LawNet. provide quality mediation services. The of Singapore Cases and the last issue covered Supreme Court supported the project by Legal publishing some 20 areas of law.” LawNet2 referring suitable cases for mediation. Two In the 1980s, Singapore did not have its In 2007, the Academy set up a dedicated The idea of organising the various primary years later, SMC was ready to take off. It had own set of law reports. Judgments in publishing arm, Academy Publishing, sources of Singapore law under a single dealt with 84 mediation cases, 75% of which the Singapore courts were reported into to further its aim of disseminating legal search engine was first mooted in 1996. had been successfully settled. the Malayan Law Reports. The Academy knowledge. Nearly 20 years after the There were sceptics at the outset. However, With the continued support of the started the Singapore Law Reports founding of the Academy, the issue of the LawNet Committee was convinced Singapore judiciary and Ministry of Law, in 1992 in partnership with a legal professional ethics of lawyers remains a of the value of it and thought it was SMC is now a leading mediation organisation publisher. “As we got better organised, concern and the first book published by worth the investment of resources. In and well known as an incubator of future we became the publishers,” says Chief Academy Publishing was, fittingly, Ethics 1996, the Academy took over the LawNet mediators. SMC’s training programmes Executive Serene Wee. “Producing the and Professional Responsibility: A Code Secretariat from the Attorney-General’s are well sought after by public and private fortnightly series was not an easy task for the Advocate and Solicitor – a work Chambers and is now fully responsible bodies in Singapore and regionally. and we learnt a lot from this experience. commissioned by Chief Justice Chan and for the development and management of As the Academy grew and the legal We also introduced the Academy Digest, written by Prof Jeffrey Pinsler. LawNet, the IT portal which provides users community evolved, this development was pushing for short succinct summaries Not content with this traditional instant access to a wide range of legal matched by the corpus of Singapore law of every judgment for which there are approach to originating and disseminating information and transactional databases.
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LawNet2, an improved version of the platform what has come before and not motivated People do want to remember their past and was launched in August 2007. by a drive to innovate what comes after. celebrate their heroes.” Recognising that the legal community’s The Academy’s legal heritage and legal It is this celebration of heroes from the key resource is the over 6,000 members research work underscore the importance of past and the hopes for the future that the that comprise the Academy’s membership, this point. Academy wishes to commemorate on the however, has meant that the focus of the occasion of its 20th year in the service of the Academy’s activities has always been the Legal research and heritage legal community. provision of opportunities for continuing legal Former Attorney-General Tan Boon Teik education for its members. chaired the Academy’s first Law Revision 20 YEARS AND COUNTING ... and Reform Committee which was set up in In some way, every year which the Academy Legal education January 1989. Chief Justice Chan, who has worked to live up to its mission statement Some 300 members attended the first legal was then a Supreme Court judge, was Vice- has been a remarkable year for those who education seminar held at the Academy’s Chairman of the 13-member committee which work for and with the Academy. In its 20th Function Hall in May 1989. In his keynote included senior government lawyers from the year, the Academy will venture further in address, the late Justice Lai Kew Chai, Attorney-General’s Chambers, law academics working with the SingaporeLaw Committee then Chairman of the Committee on Legal and senior lawyers in private practice. set up in 2005 to take Singapore law beyond Education and Studies, was optimistic that Describing the role of the committee, Mr Tan our shores and create an international the Academy’s legal education workshops said, “Our business is not to be involved in relevance to it. It will continue to ask itself, would afford meaningful opportunities for policy changes ... [but] to assist in helping “What are we here for? How can we continue the different branches of the profession to our lawmakers to focus attention on matters to be relevant to this profession and the interact and exchange views in a congenial legal.” Helping to focus and refine issues industry?” and intellectually stimulating atmosphere. for lawmakers continues to be a guiding But in its 20th year, the Academy will also These programmes, he hoped, would over principle for the committee today. pause to ask itself, “How can we thank our time “acquire a distinctive character and Just as law reform work today is helping members who have supported us through the reputation”. to shed light on the path forward, the years and who have grown with us and made Over the years, the Academy has focused Academy’s legal heritage work has sought our growth possible?” on signature events such as the Annual to shed light on those who have allowed us We would like to begin to answer this Lecture which was started in 1994. In the last to arrive where we are as a legal community question by inviting you to celebrate with us 14 years, the Academy has hosted a line of and system today. A Legal Heritage in various ways throughout 2008. distinguished speakers for this annual event, Exhibition was held at the City Hall Chamber To start off the year, the Academy will be most of whom have been Chief Justices from in 1995 and the Academy participated in presenting members with a limited edition The Academy will also launch a major legal jurisdictions around the world. a documentary, “The Passage of Law”, Member’s Diary. In it you will find nuggets 20th Anniversary website in January 2008. Much thought has gone into the Academy’s in collaboration with the then Television of legal heritage photographs. We have also We would like to invite members to share programmes which are the result of careful Corporation of Singapore. “It’s an area that included contact information which we trust with us memories, memorabilia, photographs planning of topics and speakers. Today, few organisations in Singapore want to invest will make your work more convenient. and reflections from experiences at the the Academy holds large conferences with in but it is amazing that for such a forgotten A legal heritage exhibition is also in store Academy since its inception. Please send your a reputation for quality of discussion and subject, there are good people who offer later in the year to provide an opportunity for contributions to Audrey Chan (Tel No: 6332 succinct summary of the law. their time for research and documentation,” the legal community and the public to take 5371 or e-mail: [email protected]). However, keeping up to date alone is said Serene Wee. “It is work that creates a trip down memory lane to discover how the We are 20 years young, and we have loved insufficient if not informed by a sense of a sense of fraternity in this profession. legal landscape has evolved over the years. every minute of it. We hope you have too.
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his views on the Australian legal system and Judicial education its ties with Singapore. When asked how best to implement judicial education (and this is especially helpful in THE GLEESON CJ ON ASPECTS OF THE the local context given that Singapore does AUSTRALIAN JUDICIARY not have a formal programme of judicial HONOURABLE Judicial appointment training), Gleeson CJ said that the proper On the topic of judicial appointments, approach, and this has been recognised in particularly with respect to the desirability of Australia, England and the United States, MURRAY appointing judges from anywhere other than and most of the Commonwealth world, the Bar, Gleeson CJ is of the view that a lot is to ensure that programmes of judicial GLEESON AC depends on the local context. In Australia, training are judge-led. In his view, the risk the Bar does not have a monopoly on of inappropriate pressurisation of judges is appointments to the Judiciary and there have one of which people are conscious and the CHIEF JUSTICE been some very successful appointments best way to deal with the risk is to rely on in recent years of people who have spent judges to have a large input. In Australia, OF AUSTRALIA most of their working life as law teachers or in addition to reliance on judges for input, the judges provide the training themselves. By Goh Yihan and Nathaniel Khng, Justices’ Law Clerks, solicitors. Those who have been law teachers Supreme Court have usually spent some time in practice Indeed, the courses in judicial education before they have been appointed to the in Australia are largely conducted for Bench. That having been said, in New South judges by judges, although there is also the The Honourable Chief Justice of Australia Murray Gleeson AC, the Wales, which is where Gleeson CJ comes invaluable assistance of experienced law guest speaker at the 14th Singapore Academy of Law Annual Lecture, from, the Bar is still the principal source of teachers. cites winning the Lawrence Campbell Oratory Competition in both appointments to the Bench as the view is that 1953 and 1955 when he was at St Joseph’s College as one of the experience in advocacy remains a very useful Interest in judicial decisions factors which influenced him to read law. “The fact that I was keen background for judicial appointment. Moving to the issue of increased public on debating at school and at university was one of the considerations Going into a related topic, Gleeson CJ interest in judicial decisions, Gleeson CJ which led me to take an interest in becoming a lawyer, but I did not stated that one of the reasons he has thinks that this is a healthy development. In decide that I was suitable, hardly, until I was well into my university encouraged formal systems of judicial his view, it is a sign of rigorous democracy, course.” education or training in Australia is that where all branches of government are Whatever the motivation, Gleeson CJ graduated from the this is the only way of effectively widening subject to public interest and public University of Sydney with first-class honours in arts and law in the gene pool of judicial appointments. In comment. Furthermore, he has not heard of 1962 and went on to have an outstanding career at the Bar. He Gleeson CJ’s words, “It is not fair to expect any judge in Australia feeling pressure as was appointed Queen’s Counsel in 1974 and in 1988 was the first people to go to the Bench without training a result of comments of this kind. Indeed, barrister to be directly elevated to the position of Chief Justice (of or experience and in effect throw them in the Gleeson CJ candidly said that, “Anybody the Supreme Court of New South Wales) since 1934. Ten years later, deep end.” In order to widen the gene pool who is exposed to comment will feel Gleeson CJ was appointed Chief Justice of Australia. effectively, state governments in Australia uncomfortable from time to time, but that What follows is an account of an interview which Gleeson CJ kindly have recognised that they have to establish is too bad, it comes with the nature of the granted Inter Se in which the head of the Australian judiciary shares appropriate systems of judicial training. job.”
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Increasing legislation decisions are heavily influenced by the As with other Commonwealth jurisdictions, Australian constitution and the local context I would recommend Australia is now witnessing an increasing is administrative law. In order to understand to anybody starting out as prevalence of legislation, which intervenes Australian administrative law, it is necessary in areas traditionally regarded as under the to keep in mind the constitutional context in a barrister to try to take Judiciary. In relation to this, Gleeson CJ which it is operating, and also the legislative every opportunity to gain expressed that he does not have a problem context, which includes among other things, any advocacy opportunity with it at all. He cited two examples in an extensive system of merits review of Australia of increased legislative activity in administrative decision-making. that is available and to areas previously reserved for judges. The As jurisdictions become increasingly appear in a wide variety first would be sentencing. He pointed out connected, Gleeson CJ thinks that it is that the public is becoming more and more desirable for courts to continually refer to of jurisdictions. interested in the administration of criminal other jurisdictions in aid of their decision- justice and parliamentarians are becoming making process. However, he cautioned that increasingly interested in legislating in that it is an obvious risk that foreign decisions of interaction. Gleeson CJ pointed to the this account of our interview with what area. This he regarded as a natural and may not be completely understood, and “healthy interest on the part of Australia and Gleeson CJ shared about his 25 years as healthy development. The second example obviously, when the courts in Australia refer Singapore in each other’s legal system”. He a barrister. Gleeson CJ commented that Gleeson CJ gave is in the area of what he to decisions of other jurisdictions (including highlighted that there is also a degree of experience in advocacy is extremely useful referred to as tort law reform. In this respect, decisions of non-common law jurisdictions), cross-fertilisation at the level of law teaching in the early years of a young lawyer’s career. there has been major legislative activity there is a need to be careful to ensure that and legal study. “I would recommend to anybody starting out in the Australian states in recent years on the courts are understanding these decisions, Gleeson CJ also said that an Australian as a barrister to try to take every opportunity issues pertaining to tort law. Both of those and especially, the context in which they are law journal has recently published an article to gain any advocacy opportunity that is examples, according to Gleeson CJ, simply delivered. The courts also need to ensure which makes references to Singapore cases available and to appear in a wide variety show that the public and politicians are that they are relevant to local situations. If on property law (it is, of course, well known of jurisdictions. Specialisation can come taking an interest in law reform, and this is a these two problems are avoided, there should that Singapore took its Torrens system later, but advocacy itself is a specialist skill good thing. not be unpredictability in decision-making. from Australia). Gleeson CJ observed that and it can be developed by looking out for Subject to these qualifications, Gleeson CJ there was quite an extensive commentary in opportunity to appear in a good variety of GLEESON CJ ON AUSTRALIA’S CONTRIBUTION thinks that such inter-reference across the article on the Singapore decisions and jurisdictions.” TO THE COMMON LAW jurisdictions is a very healthy development. suggested that this was an excellent example When informed that the possibility of On the topic of Australia’s contribution of the two jurisdictions benefiting from each replicating his experience is quite remote in to the common law, Gleeson CJ shared GLEESON CJ ON THE INTERACTION BETWEEN other’s decisions. Incidentally, Gleeson CJ Singapore as the big law firms, in general, that Australia regards itself as being in the AUSTRALIAN AND SINGAPORE LAW also remarked that “it would be hard to beat” do not allow junior counsel to speak in mainstream of the common law tradition, When asked to give his views on the the Torrens system as it is one of the best court, Gleeson CJ stressed that watching but there are some areas where the common interaction between Australian and exports of the Australian legal system. and learning from others can also be an law of Australia has developed differently, Singapore law, Gleeson CJ opined that important way of picking up advocacy skills. and in some respects, this reflects local both jurisdictions regard themselves in the GLEESON CJ ON THE ART OF ADVOCACY If the opportunities for appearing in cases conditions. An obvious example of an mainstream of common law tradition and, Finally, in light of the theme of this issue are limited, “the next best thing is to watch aspect of Australian law in which judicial on a professional level, there is a good deal of Inter Se, it is fitting that we end off others do it and learn from them”.
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Book Title: No Further Questions: A Primer for the Singapore Advocate Authors: SC and former and current High Court judges First-ever GUIDE for General Editors: Assoc Prof Eleanor Wong, Mr Lok Vi Ming SC and Mr Vinodh Coomaraswamy SC the Singapore Advocate Publisher: Academy Publishing, 2008
The idea was mooted editorial committees. From topics. We were (some might almost five years ago by the the start, one of the thorniest say ingenuously) ambitious. Singapore Academy of Law questions was – who would The proposal called for (“SAL”) Professional Affairs write this book? To pick just 20 chapters written by a Committee (“PAC”) under one or two writers would selection of Senior Counsel its then Chairman, the late scarcely do credit to the rich and members of the Bench. Justice Lai Kew Chai: a book talent of the local Bar and Getting them on board (and on trial advocacy written would hardly expose the on time) would be a dream by Singapore practitioners reader to the full range of or a nightmare. Likely both. for Singapore practitioners. insight and opinion available. By this time, we had lost our While there is no dearth of To write by committee was, dear colleague Justice Lai, books on advocacy generally on the other hand, unwieldy and the helm of the PAC had and while it may fairly be and impracticable; and to passed to the indefatigable said that many principles of simply request contributions Justice V K Rajah. With good advocacy are universal, from all and sundry would characteristic energy, Justice Singapore litigation (like result in incoherence. After Rajah issued what must have so much else of Singapore) much discussion, the solution been irresistible invitations. has its own unique flavour. was to appoint a small team The result is a contributors Context, culture and of general editors who would list that reads like a who character influence the guide the overall format, is who of the Singapore practice of advocacy in content and coherence of litigation Bar, and a real treat subtle ways. General primers the book but who would for a reader hoping to get a written for other jurisdictions call on contributors to write glimpse into the secrets and can only go so far. The time individual chapters. strategies of the Singapore seemed ripe for this project. In 2006, the core team Bar’s most valuable players. Since then, the idea was constituted and we got Some chapters deal in has gone through several to work hammering out our detail with specific aspects incarnations and sets of wish-list of contributors and or parts of trials. There are By Eleanor Wong, Associate Professor, Faculty of Law, National University of Singapore 66 | | 67 On The Bookshelf
dispute resolution and counsel at different stages The chapters another on appellate of a case and the concrete contain anecdotes advocacy. considerations that may Other chapters tackle affect decisions. Inevitably, and samples of broad, overview questions. certain topics crop up in effective practice. The book kicks off with ten more than one chapter. They discuss tips from one of the Bar’s The extent to which our top senior statesmen and ends advocates differ in their the different with two chapters containing approach to these topics is strategies that may observations from the Bench as revealing as the areas of (both past and present) as commonality. The chapters be available to to the qualities of effective reveal the distinctive voices counsel at different advocates. In between, and characters of their there are chapters on different writers, reminding stages of a case etiquette and ethics and on us that advocacy is, at the and the concrete how to deal with the media. end, an art. An art engaged There is even a chapter in by master artists. considerations intriguingly titled “Advocacy The book is targeted that may affect for the Long Haul” which at the mid-level advocate. decisions. the General Editors hope Someone who has a few will reveal the secret of years of advocacy under his how to achieve the lawyer’s or her belt and who would equivalent of “sustainable appreciate a more in-depth development”. Family discussion. Nevertheless, chapters on case theory, members may want to read anyone interested in pleadings, interlocutory this chapter too! knowing what Singapore proceedings, affidavits The approach throughout advocates do and how they (including affidavits of the book is to provide not go about doing it should evidence-in-chief), cross- just general principles but also find it an illuminating examination, expert specific examples of how read. witnesses, admissibility those principles might of evidence, opening play out in a Singapore No Further Questions: statements and closing court or case. The chapters A Primer for the Singapore submissions. Different contain anecdotes and Advocate will be available forms of advocacy also get samples of effective mid-2008 for purchase their own treatment, with practice. They discuss through the Academy’s two chapters on criminal the different strategies website at www.sal.org.sg or advocacy, one on alternative that may be available to at major bookstores.
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