One of the great attributes of being a lawyer is that once a Client engages a Counsel to “champion” their cause, the latter has the freedom to craft and create an appropriate argument on facts and law that just might persuade a Court to rule in his favor. Every Counsel has his or her own methodology and unique way of preparing a case but for purposes of being thorough, one thing is apparent – a Counsel must submit to the discipline of law. What is the discipline of law? I have yet to come across any set or universal definition of the phrase – yet my Ustaad tells us time and time again, to read Judgments authored by the esteemed Judges of the Privy Council, prior to partition. These judgments reflect a logical thought process comprising well-reasoned analyses of the particular cases, including their facts and applicable laws and legal principles. In order for a litigating lawyer to convince a Judge to rule in his favor, aside from the acquired art of advocacy, the Counsel needs to bolster arguments with judicial precedents, either binding or persuasive, depending on the forum where one is appearing. However, having that binding authority on your side is not enough to bank on – at the end of the day, the quality of the judgment will solely depend upon the quality of the preparation of the case on facts and law by the Counsel.

In our times, us lawyers are quite fortunate to have a wealth of resources available to us for purposes of “finding the law”, as mentioned in an earlier installment of this series. The advent of the Internet has allowed us to have access to legal papers, judicial precedents and statute texts from all over the world and as such we have a distinct advantage over those who came before us – at least with respect to the legal knowledge database. But what we do lack today is the ability to absorb this information practically and be able to analyze and apply it in 3-D.

There is an increased reliance by practicing lawyers on “headnotes” which are given in the beginning of reported judgments. These “headnotes” are basically summaries of the legal principles that have been relied upon and discussed in a particular judgment and are inserted primarily for the guidance of Counsels seeking to rely upon particular topics or sections of law. My Ustaad, who to date, reads judgments in full, has always made it a point to discourage us from relying upon a Judgment by reading from a “headnote”. He calls it ‘poisonous’ as it does not allow a Counsel to fully prepare his or her case, as they have not bothered to understand as to how the law or legal principles were applied to the particular facts and circumstances of the case. And whenever we do go and harp about our achievements in finding a good judgment to bolster our arguments on a particular case, the first question we are asked is: “Have you read the whole judgment? If you have, then please tell me the facts of the same!” A sometimes harsh, but necessary barometer as to whether one understands how to use a judicial precedent.

A standard judicial precedent consists of the following: the name(s) of the Judge(s) hearing and deciding the case, the names of the contesting parties, the type of case being decided, the dates of hearings, the “Headnotes”, the names of the Counsels, the facts, the legal issues involved, the analysis of the applicability of the legal principles to the facts of the case for which a decision is to be given i.e. the ratio decidendi and then the final decision of the case. Whilst studying for my LLB exams, I would often see in Study Guides and solved past papers, the use of quoting multiple citations to support an answer to a particular exam question. However, upon being exposed to the practical reality of being a litigating lawyer, rather than quoting too many precedents in a particular case, it seems more appropriate to focus on quality as opposed to quality. We were appearing in a matter before a Civil Judge in a particular Civil Suit and a miscellaneous application was being argued by the Counsel for the other side. He seemed very confident whilst citing numerous precedents (highlighted “headnotes”) to support his case. My Ustaad asked the Counsel to provide him with copies of the said judgments then and there and as he had prepared their case better than our own case, he submitted before the Court that upon a reading of the particular facts and circumstances of the cases, it would be apparent that the precedents being cited went against the opposite party. It was an eye-opener for us juniors but a valuable lesson learnt for the future that reliance on “headnotes” was indeed suicide and a useful guide to let us know that in order to be an effective litigator, take the trouble to know your opponent’s case better than your own!