4 Challenges of Litigation from a Layperson’s Perspective

Choosing a lawyer may feel like a challenging process for many people and indeed, it might be. Almost every one of us, at one point or another, may find ourselves in a situation where one may require the services of a lawyer, be it to handle a real estate transaction, criminal matter, family-related dispute or a land-related dispute which requires litigation[1]. Therefore, here are a few things to consider before you go about choosing whom you potentially want to represent you in Court.

Firstly, it is recommended that homework and research are to be done. For example, if you have a case on family issues, it is straightforward to say that you will be seeking for a lawyer who is well versed and is in the practice area of family law instead of one who practices company law. Therefore, you would need to prepare a list of lawyers in the practice area of family law. The best place to start when compiling this list is often personal referrals[2]. In addition to that, the Malaysian Bar Council website has a list of all the law firms in Malaysia with their respective areas of practice, as well as the names of their lawyers and the firm’s contact numbers[3].

Once you have your list prepared, it would be common to schedule a short meeting with the lawyers. Keep in mind to be fully aware of your budget and ask yourself how much you are willing to invest in this case before the meeting. Every lawyer in Malaysia is bound by the Legal Profession (Practice & Etiquette) Rules 1978[4] (“LPPER”), which lists down a few criterias that lawyers have to take into account before determining the amount of fees involved. The LPPER Rules state that, amongst others, lawyers will take into consideration:

a) the time, labour and skill required;
b) the novelty and difficulty of the question or case involved;
c) the customary charges of the profession for similar services;
d) the amount in controversy; and
e) the special position or seniority of the particular advocate and solicitor[5]
before determining the amount of fee for litigious or contentious matters which involves representation of the client in Court[6]. In other words, a lawyer is not allowed to quote you any figure he/she favours for his/her services.

During the short meeting with the potential lawyer, it is advisable to bring any relevant documents to the meeting, in order to explain your case more thoroughly and clearly to the potential lawyer. You are allowed to ask the lawyer what he/she thinks of your case and what the chances of success of your claim are. The potential lawyer could be of a general opinion where he/she feels that your claim is worth pursuing or not, or if you are a party defending a claim, whether the case is worth defending or settling with the other party.

This is also a good time to gauge your potential lawyer. It is crucial that the lawyer you choose in the end is confident and exudes trustworthiness to you as a client. The lawyer should also be able to build a professional relationship with you as a client, and at the same time giving you a sense of comfort and a deep understanding of you and your case. Keep in mind that you will be meeting with the lawyer of your choice frequently, therefore, you should look for someone whom you can work together well with.

After the first meeting, the potential lawyer will proceed with issuing you a brief advice and a quotation of the legal fees involved in the case – in some firms, the advice plus fees involved are known as a proposal. This is the point of time where, if you have visited several law firms, you have to choose the lawyer who will represent you in Court.

When you have chosen that particular lawyer from a particular law firm, you would then have to proceed to sign an agreement with the lawyer that you agree to the proposal and it would suffice for him/her to become your lawyer and to represent you in Court. Majority of law firms will produce a contract for this agreement, but depending on the firm’s practice, an email may be sufficient for you to agree to the proposal and that you agree to choose that particular lawyer to represent you for your case.

Once you have decided on the lawyer of your preference, you will have to dispense information about your situation to your lawyer. Generally, one common concern of a client would be the confidentiality of the information that is communicated to the lawyer. However, it is trite law that communications between lawyers and their clients are privileged, thus, are inadmissible as evidence in any proceeding.[7] This is stated under Section 126 of the Evidence Act 1950 and has been confirmed in the recent case of Gideon Tan v Tey Por Yee[8]. A party may, however, waive this legal professional privilege impliedly or expressly by voluntarily publishing privileged communications to others outside a confidential setting[9] (Section 129 of the Evidence Act 1950).

It is crucial for you as a client to disclose all information regarding your case to your lawyer in order for the lawyer who will be representing you in Court to be equipped with complete knowledge of your case so as not to let the opposing party have an upper hand.

During the first few meetings with the lawyer, you will be asked to supply documents such as contracts, agreements, letters, email correspondences, invoices and so on to help the lawyer better understand the facts as well as to ensure that the verbal evidence from the client and the documentary evidence provided correspond with one another.

The most conventional type of meetings is face-to-face. However, in this age of technology, it has become common practice to hold meetings through phone conference calls, emails, Skype video calls and WhatsApp calls/video calls.

Once the Court fixes the dates for trial, the lawyer will need to meet the witnesses. The witnesses would have to meet with the lawyers frequently in order to prepare witness statements and to be briefed of what to expect at the trial. At this stage, much work goes into extracting information from the witness and articulating them into writing. This process may take hours or days, sometimes even weeks to complete.

As mentioned above, the witness would pen their thoughts into a witness statement. A witness statement is in the form of a question and answer (Q&A) format, capturing the answers given by the witnesses responding to the questions by lawyers; the questions of which would be rephrased to extract the best and most truthful answer from the said witness. This witness statement is usually the Examination in Chief for the trial.

In addition, the said witness will also be prepared for Cross-Examination. A Cross-Examination is an exercise by the opposing lawyer who may try to discredit the witness or diminish the veracity of the witness’ testimony. Most witnesses will be guided by their lawyers on the mental preparation to face such questions.

You are required to tell your side of the story and be truthful. Your lawyer is there to try to persuade the Judge to listen to your side of the story. Bear in mind that coaching witnesses to give false evidence is not allowed and amounts to an offence.

You are advised to dress well according to the Court’s dress code and etiquette[10]. Also, it would be helpful to bring along your supporting documents which may be of assistance during the testimony. At this stage, you should be mentally prepared and have built certain knowledge in regards to testifying in Court.

During the trial, a witness may need to go through 3 stages of questioning:

Examination in Chief
Cross-Examination
Re-Examination
Some preliminary preparation for a litigant or for a witness in a trial includes:

To have read, understood and if possible, commit to memory the documents and issues related to the case;
To remain calm throughout the testimony;
Whenever the counsel (or sometimes the Judge) poses a question, listen to the question attentively and carefully;
When offering an answer, formulate the answer in your mind and explain it clearly and slowly;
If unsure or unclear of a certain matter or fact, inform the Court that you are not certain of the veracity of what you are about to tell the Court;
Do not concoct or try to offer an answer when you don’t know the answer.
During testimony, the witness will take questions from the lawyer who called that witness to the stand. In most circumstances, the questions are favourable in nature unless you are a hostile witness. As mentioned above, most questions and answers at this stage would have been in a written format already. This is known as Examination in Chief. Once the Examination in Chief is complete, the opposing lawyer will then start the Cross-Examination.

So how do you deal with Cross-Examination? It is common that during Cross-Examination, the opposing counsel will ask some harsh questions in an intimidating way. However, the etiquette and conduct of Malaysian lawyers are regulated by the LPPER 1978. For example, in Rules 14 and 15 of LPPER, a lawyer is restricted from harassing a witness with annoying, insulting or irrelevant questions.

During Cross-Examination, many witnesses tend to be anxious when they are being put to answer some questions. Therefore, you are advised to listen carefully to the questions and always wait until the entire question is asked before answering. Take your time and always think before you answer.

Nonetheless, your own lawyer during trial will always have the last opportunity to ask you further questions to clarify your answers which you had given during cross-examination. This is referred to as “Re-Examination”.

Always keep in mind that the Judge will write notes. Stay composed, express your thoughts in simple and unequivocal language for the Judge to understand and always look at the Judge when you are speaking.