When a Client brings a problem to a lawyer, looking for a solution, the Client comes armed with not only with his or her knowledgeable background of the case and their own input as to how it should be presented, but also with the relevant documents/papers and materials that substantiate the facts and circumstances of the problem. As litigating lawyers, it is necessary to be good listeners for sure, but as far as steering the ship of a case is concerned, the lawyer (in an ideal world) is the Captain and the Client is the first mate on board. The Client is always welcome to express his or her views on the merits of their case to the lawyer, but it is the responsibility of the lawyer to inform the Client that their views are important inputs no doubt, but that those views can only be practically useful if the documents, papers and materials being relied upon are relevant to the applicable laws of a case. This ammunition that a Client is armed with, once analysed by the lawyer, forms the genesis of the record of the case. And whilst advising a Client on a possible solution to their legal problem, the lawyer is responsible for meticulously analysing the legal adequacy and admissibility of such documents, papers and materials, with the end goal of presenting them in the trial Court, and making sure that their relevance and legal veracity remains intact up to the Appeals stage. The construction of the record of a particular case is the procedural foundation upon which cases are won and lost and cannot be lost sight of by a litigating lawyer, no matter how many legal precedents are in one’s favour.
The Courts are required to adjudicate disputes between rival parties and litigation is an adversarial process. In order to adjudicate the merits of disputes, the Court is required to judicially determine the contesting claims on the basis of the record that is before it. The record does not only include the documents and materials that a Client brings to his or her lawyer, out of which the lawyer places on the record of a case, but also includes the orders passed by the Court on the dates of hearing, the contents of the pleadings of the parties, the documents relied upon by both parties and the evidence produced on behalf of the parties. And owing to the fact that litigation is often a time-consuming and tedious process, the record of a particular case often becomes quite voluminous and maintaining its sanctity and propriety becomes even more important. Depending on where one initiates litigation, there are different rules of procedure that are involved with respect to the presentation of record in a particular case. The rules are less stringent for litigation before the subordinate Courts, but before the High Courts and especially the Supreme Court, procedures and rules are more stringent and require a lawyer to be meticulous, efficient and assume his or her role as an ‘Officer of the Court’.
During my early days as an apprentice, we were assisting my Ustaad in an Appeal from a decision from a Single Judge of the High Court in a Constitutional Petition on behalf a media enterprise on a matter relating to violations of fundamental rights of freedoms of trade and speech qua the infamous media regulator of our proud nation. The Appeal was being heard by a Bench of two Judges – the Senior Judge was an accommodating person whilst the Judge sitting with him was known for his strict adherence to procedures and his annoyance with lawyers who sought relief without proper preparation of their briefs. My Ustaad began to argue his case and he was seeking to rely upon a particular document, when the ‘other’ Judge stopped my Ustaad and said, “What material or document you are arguing from is not before us. And if it is not before us, how are we to proceed to decide the merits of your Appeal?” He then turned towards us – a senior lawyer in the office and me, the hapless apprentice – my Ustaad’s so-called “support team” - the persons responsible for making sure that all documents and materials to be relied upon were on the record of the case, and said, “Perhaps you young gentlemen should take your jobs more seriously and be cognisant of the fact that your negligence in adhering to procedures may cause your Senior to not properly assist us in this matter. Ensure you do the needful next time around.” We bowed our heads in humility whilst being addressed and once the case was adjourned, well, lets just say that my Ustaad was not very happy with us and the drive back to the office was one that we would never forget!
The job of a litigating lawyer is a strenuous one indeed. There are so many facets and complexities that one has to be mindful of, whilst preparing and arguing a case and in accordance with the rules and procedures of the Court in which an appearance is being made. But in order to be a competent Officer of the Court – recognising that the time of the Court is most precious – aside from knowing the law, citing the applicable precedents and being able to efficiently articulate the arguments to be presented, the preparation and practical use of the record of the case, for the benefit of the Court is vital. A lawyer’s sensitivity in this matter is most crucial for not just the cause of his Client, but in the eyes of the Court deciding the cause on merits.