Dear Young Lawyer or not-so-young-lawyer, how are you doing today? Do you have processes to respond to and you don’t seem to know where to begin from? May I extend a hand of assistance? Oh! Thank you for accepting my offer. That’s great. I’m confident, it’s going to be a pleasant ride, so hop in on the train while I set the engine in motion.
Now, we begin.
When served with any court process, the first step is to ascertain the nature of the process. This will help in three ways:
It will guide your next line of action;
It will aid your draft of the appropriate process in response; and
It will aid your assessment of the processes for any preliminary issues that could terminate the matter even before it gets to hearing, assuming it’s a full-fledged suit.
I’ll give an example. Let’s say you’re served with a writ of summons and statement of claim. There’re a number of preliminary issues to be on the look- out for as you read through the processes. You may want to consider whether:
the writ was served within its lifespan as prescribed by the rules of court of the relevant jurisdiction;
the writ is properly endorsed for service outside jurisdiction (if that’s applicable);
the parties on the face of the process are juristic persons;
the action is brought within or out of the limitation period (if the cause of action is one to be instituted within a specific time frame;
the court in which the suit is instituted has jurisdiction or not;
there’re conditions precedent to be made (such as a pre-action notice if a government institution is sued) and whether such have been satisfied; and a number of other issues.
You should get the picture by now. Thereafter, you’ll consider whether to enter appearance for your client and whether such appearance will be unconditional, conditional or under protest. And then, you proceed to draft your response as befitting of the process served on you. Remember to make your general traverse at the commencement of the draft of your Statement of Defence. Do you intend to rely on electronically generated evidence? Ensure to satisfy the requirement of the Evidence Act by filing a Statement of Compliance with Section 84 of the Evidence Act. You could also state that in your Statement of Defence. Ensure in your draft to respond to every material fact raised by the other party and go ahead to state the case of your client.
How about if you’re served with a motion and an affidavit? In that case you’ll need to peruse the motion to ensure that it’s correctly signed by a lawyer and not in the name of a law firm. You’ll also want to check whether the content of the affidavit is not in contravention of Section 115 of the Evidence Act. Of course, you’ll be responding with a counter affidavit. So, what’ll be the content of the counter affidavit?
Your oppositions to the facts contained in the affidavit;
Facts that have not been put forward in the affidavit (I must warn that this could be tricky as there could be some danger in putting up these facts. You could put up those facts and give the opponent opportunity to explain more through a Further Affidavit. So you may need to really think through whether or not you want to state new facts in your counter affidavit).
I think this is enough for the now. We’ll continue on another episode where we’ll consider another interesting topic.
Written by Queen Ukpo ESQ
Dear Young Lawyer or not-so-young-lawyer, how are you doing today? Do you have processes to respond to and you don’t seem to know where to begin from? May I extend a hand of assistance? Oh! Thank you for accepting my offer. That’s great. I’m confident, it’s going to be a pleasant ride, so hop in on the train while I
Some days back we told you the story of a strange criminal case. The case was not strange because someone (Miss A) had committed a crime. It was strange because of the verdict of the Magistrate. We ended by saying that that was one case where the Magistrate talked himself into saving a life and he may have done justice. In today’s piece, our professional colleague and friend who is a criminal Prosecutor disagrees. And his reasons are formidable. Do enjoy the read.
So, I just read the article published on your blog a few days ago. I’ll like to share my thoughts considering the facts as a criminal prosecutor
First and foremost, the alternative charge as suggested by the Magistrate in my opinion was incorrect. Miss A should have been charged for robbery and either attempted murder or assault occasioning harm. Never armed robbery.
It is my view that nothing she did from your narration of the facts amounted to armed robbery. This is because for it to be armed robbery, she should have gone to steal the phone or the money with a weapon. But from your narration what happened was that she stole money then bought phone. In my opinion, she therefore committed robbery in stealing the money.
Later on, she went to revenge and stabbed the complainant. This act would amount to attempted murder or assault occasioning harm and both offences are bailable in the high court.
Now on the issue of investigations and police force in our country, it’s well known that the police barely investigate crimes. Apart from that, we do not know what was contained in the file so we cannot say if this case was an exception to the usual police practice.
As much as I blame the police, most of my blame goes to the system. A system that does not make basic provisions for the simplest of things needed to investigate crime is deeply flawed. Things as basis as fuel for the police car to aid in visiting scenes of crimes is often unavailable. There are too many things wrong with the system.
Then the Magistrate. The Magistrates’ Court is a court of summary jurisdiction. Most times, because of the 48-hour constitutional rule, the police seek to charge suspects very quickly and get them off their hands.
Did the magistrate jump into the arena by rendering his opinion after perusing the case without listening to her? I don’t think so. Summary jurisdiction means everything is expedited. Besides Miss A had no lawyer there with her who could speak for her.
The Magistrate only relied on the facts that were before him. If there were opposing facts as presented by Miss A or her lawyer, do you still think the magistrate would have spoken as he did? I don’t think so.
Now on the issue of justice
The whole scenery of ordering Miss A to kneel down and apologize to the Complainant before releasing her because she was pregnant. What does that teach Miss A?
As much as we can say that a 19-year-old girl is still reasonably young and is confused about life, shouldn’t we also be endeavoring to teach our children (and young adults) a lesson that will stick forever with them? In this case, the lesson that every action has a corresponding consequence?
A person who was supposedly confused; stole from her madam, went to buy a phone, was of conscious mind to change the name so it could not be traced to her, when she was caught, later bought a weapon, and went back to stab the person who she assumed blew the whistle on her?
Is that a person that seems confused to you? Or is that the budding mindset of a potential criminal?
And she was let go with a simple tap on the knuckle because she was pregnant?
What has she been taught? That because of her perceived young age and pregnant status, she can get away with serious things? That actions don’t have consequences?
Our system is deeply flawed, yes. But I do not agree that justice was served in this case.
If she committed the robbery alone, I’ll understand forgiveness upon repayment of the money. But if were in the Magistrate’s shoes, I’ll still grant an order for community service or something similar to make her understand that there’s a punishment. But by basically sending her away free, I respectfully think that the magistrate has released a criminal into the society in a jurisdiction other than his own
Justice is 3-way street which is justice for the state, justice for the complainant and justice for the accused. To nobody was justice served in this instance. I’d explain.
For the State, a criminal has been released back into society. From the narration, she had intention for both crimes and she actually committed them.
For the complainant, there was no restitution. You judged (or reached conclusions about) her (as I’m sure others around did) because she did not show any signs of injury does not mean she was not actually injured. If on the other hand, she had gotten something serious and he died, the story would have been different. Did she really want to forgive her but saw to the prosecution of the charge? But when she saw the direction of the Court’s discretion, she may have just bowed to peer pressure and forgave Miss A. So, what restitution did she really get? After all she had spent money at the police and for the little time she spent treating herself, a little bit of punishment could have gone a long way, not the forced forgiveness that seems to have played out.
For the accused, she was not taught the most important lesson that would guide her adult life. Imagine now, as she has gone free, she gets angry and says they made me kneel down in public, so she picks another weapon and goes after the Magistrate or the Complainant, what will the tale be? She is at a formative age and needs to be taught life’s lessons as quickly as possible
As my mother taught me, when a child commits a crime, beat the child with the left hand, then use the right to pull the child back to you. We do not realise the consequences of our actions, the far-reaching effects, until the chicken had come home to roost
Forgive my lengthy writing. But on this issue of justice, occasionally, it is nice to look at it from the point of the one who was living a simple life and his absolute right to peace was brutally violated by someone for very flimsy reasons.
Thank you and God bless.
Justice is 3-way street which is justice for the state, justice for the complainant and justice for the accused. To nobody was justice served in this instance…A Criminal Prosecutor reacts to our previous post.
Clears throat and sprinkles pretend cough somewhere**
Dear reader, welcome to another episode of; “My Lord May I?” In this episode, I will narrate to you the happenings in an actual criminal matter and attempt to conclude that maybe justice was achieved in the circumstances. But after hearing the facts and my brief restatement of what transpired in court – would you agree that justice was indeed done?
Permit me to set the tone for the gist and cut to the meat of the gist so soon thereafter.
For toning purposes, I will confess that my gist today as you may suspect is not one of your usual or routine criminal charges/matters. Yes, you can call it premium gist.
And of course, it begins in a courtroom with a talking Magistrate. I’m not pulling your legs – this Magistrate actually talks. Of course, I know that all Magistrates talk but some are more ‘expressive’ than others. And our Magistrate in this story could win the Emmy’s for the most expressive jurist on the bench. No cap.
Caveat delivered in a whisper -I have used the word expressive to avoid a coinage that could hijack me to prison for contempt of Court. My own keyboard will not land me in prison – did I hear an amen? Thank you.
Now to the meat of our gist.
The unfolding of the ‘strange’ case
The meat of the gist begins on a Tuesday morning in the month of June. This particular Tuesday in Court dragged on just as any other day before our ‘defendant of interest’ whom you shall soon also meet, stepped in. Let us call her Miss ‘A’ where A would stand for ‘Accused lady’.
The criminal charge that brought Miss A to Court was an ‘overnight’.
Miss A was brought into the Courtroom with handcuffs and the Investigating Police Officer (IPO) motioned her to where she was to sit – not far from the prosecutor’s dangling table as usual. Few minutes in, the IPO handed over the file he walked into the Court with to the prosecutor and the duo whispered like reunited love birds that must not get caught. So soon thereafter, the file sneaked away from the Prosecutor’s table and boldly arrived by the Magistrate’s side who at this time was already adjourning the second case for the day.
After the adjournment, his worship issued the relevant order; “call the overnight”. As expected, the charge number was called and Miss A was led into the dock.
Now let’s get back to Miss A – our defendant of interest. Miss A was definitely not fat; her obvious bones confirmed that. She was fair skinned – or chocolate skinned if you may. Also, she bore an expression on her face that seemed to cloak all her emotions but one; her fear. She stood in the dock but before the charge was read and her plea taken, His Worship asked a question – “why was she not charged for armed robbery?”
Clearly the Court had just read the charge and unknown to us, its content was about to become the subject of an interesting conversation.
“Who drafted this charge?” his worship asked again.
“I did” the IPO replied standing up a couple of seconds before his pot belly.
“Why did you not charge her for armed robbery so that she would learn her lesson. If what I see here is what she did, then she should have been charged for armed robbery”
After those preliminary questions, the Court proceeded to deliver the mix of a lecture, an interrogation of the Miss A and a commentary on how long girls of these days have been reported to castrate men. During this period, eyes starred at Miss A – some in consternation, others in wonderment and others in subtle pity.
From the charge, it was alleged that Miss A stabbed the nominal complainant with a small knife. According to the Court, by the provisions of sections 401 and 402 of the criminal code law, this act properly falls within the ambit of the offence of armed robbery.
But the Court’s interrogation of Miss A and the IPO revealed some other facts. Miss A was a 19-year-old girl from one of Nigeria’s south eastern states who stopped schooling in JSS2 and came into the Magisterial district to make a living. The IPO’s narration was that Miss A worked in a store where she was learning a skill. After completing her training, she stole her Madam’s money and visited the nominal complainant’s shop to buy a new phone. She bought the phone with a different name – clearly to avoid being traced. However, nemesis caught up with her as her Madam’s store had CCTV cameras which captured her when she was stealing the monies. So, she was traced and the phone was recovered from her.
According to the IPO, the loss of her phone probably turned Miss A vengeful and she decided that the complainant was to be the object for that vengeance. How did she carry out this her vengeance (or vawluence if you may)? She bought a small knife, visited the nominal complainant’s shop and stabbed the nominal complainant. Now, criminal charges have been slammed on Miss A in a ‘wotor-wotor’ manner and behold, brethrens, she is in Court.
One more fact, Miss A was pregnant – this answer explained the slight bump in front of her small body. Her parents as well as the man who got her pregnant were back in the village.
With all these facts now in stated in open Court, His Worship clearly was faced with a dilemma. Should the Court proceed with the arraignment and grant Miss A bail? Or administratively direct that the file be sent to the DPP’s office so that the charge is re-drafted to read armed robbery and Miss A gets arraigned properly?
Either option would have consequences for both Miss A and her unborn child. With an arraignment and the commencement of the trial, Miss A already stands the risk of getting a conviction. That risk the Court had warned was particularly weighty as this Court stated that he does not know how to give short sentences (paraphrasing his words). The second option of having Miss A charged for armed robbery was even more risky for obvious reasons. One of which is – what if she is convicted? One knife and one angry or vengeful reaction would have ended her own life.
Its ‘stranger’ outcome
The Court in its wisdom chose an interesting resolution to the whole charge.
The Court suspended the arraignment, binded Miss A over to be of good behavior for three years failing which she would be imprisoned for 180 days with hard labour and after which the charge would be effectively resurrected.
With the ruling of the Court, Miss A was effectively free to go.
I should mention that before the ruling above was delivered, the Court addressed the nominal complainant and directed Miss A to go, kneel down and apologize to the nominal complainant. After the ruling, the court directed Miss A to go back to her State. [“That she should not be seen around here” – if I paraphrase as nearly as the Court’s exact words.]
**My narration of the proceedings is short but ‘as e take happen’ was not short at all. I have attempted to zoom in on the most important happenings as well. Boring you to sleep is not my intention today.
But has anything gone wrong?
What is your take on the whole proceedings as I have ‘gisted’ you above?
I will ‘air’ a few considerations in my mind before I arrive at a resolution.
Now we can agree that poor investigations happen often in this country. And usually, any IPO would properly restate the facts of his investigation to satisfy his conclusions, justify the charge and secure a conviction. So, there could have been more to the charge than met the judicial eyes in Court that day. In other words, the story ‘too straight’.
Also, in a clime like ours when the highest bidder can wield so much influence over institutions like the police, justice can actually elude the poor. And in this precarious situation, where an institution as vital as the Police (which should ideally aid the attainment of justice) has hopped into bed with victimization and corruption, the Court must be ever careful and should be able to probe into [or at most be skeptical] of police investigations.
Besides no one heard or knew what Miss A’s narration of the facts was. Did she do it at all? At least my nose seemed to be smelling some fish about the whole thing already – remember that the nominal complainant who was purportedly stabbed as stated in the charge sheet, was in court. But she did not limp when moving and she was not bandaged or even give off the look of one who was recently released from the clutches of a bandage. That was fishy to me. Also, did the CCTV footage actually show what the IPO said it captured?
But what if she really did it? What were the circumstances leading to that? Should the law just punish a young person? Though at 19 she’s already an adult but 19-year-olds, clearly are still usually trying to make sense of life. After all, a lot of things could have contributed to Miss A’s actions – ailing parents at home maybe, peer pressure, the frustrations that afflict many in the country, you can name them.
But she has an innocent child on the way and is not possible that she could be reformed rather than condemned and left to hang? [I know our correction/custodial centers would not do any reformation.] She may have acted out of frustration and in that case, should she not be made to undergo counselling?
Let’s also not forget that in Law she is presumed innocent. So, was the Magistrate’s sentence wrong in law? Did it arise from or was it based on a presumption of guilt? Ruling that she be of good behaviour for three years failing which she would be imprisoned for 180 days seems to mean preparing the punishment in advance of her next misdeed. Also, was his insistence that she apologizes (in the manner she did) not something of concern?
In my personal opinion and with due respect to the Court, I believe that accused persons no matter how vile should not have the impression that the Court’s mind has already summarily convicted them -without hearing their side of the story. This is especially important as the Court is not only supposed to be impartial – but is to be seen to act impartially (let’s call it- actual impartially and the impression of impartiality). In this case, while the Court had to say a number of times that he would be impartial, the impression of impartiality was already largely eroded with the vituperations cast on Miss A.
Apart from this particular case, there is also the question of – what really underlies criminal prosecution and our criminal justice system? I know that it is our general interest to ensure the safety of society by locking away the bad guys. But do we take it too far with the capital punishment? I say so because killing the convicted never brings back the deceased victim and, in that case, is it just the feeling of schadenfreude that has gotten us to insist on it?
And has justice been served?
That Tuesday, I walked away from the Court with the nagging impression that the justice of a matter may be outside the forms and strict letters of the law. In respect to Miss A’s charge, I might call it the strange case where the talking Magistrate talked himself into saving a life. I think that can be cloaked as justice.
What is your take?
Written by Frederick Nkobowo Esq
Clears throat and sprinkles pretend cough somewhere** Dear reader, welcome to another episode of; “My Lord May I?” In this episode, I will narrate to you the happenings in an actual criminal matter and attempt to conclude that maybe justice was achieved in the circumstances. But after hearing the facts and my brief restatement of what transpired in court –
In the season premiere of this post, I could not get into dealing with all the areas I mentioned. So, here we go for a season two of the post. Hopefully, the entire series of what law movies don’t teach law students will end with this season.
Oh, pardon me, did I mention that the purpose of this post is not to kill your movie cravings? Far from it, an enjoyable law movie is always worth it. So, add the movie – A time to kill to your list.
This post is really aimed at telling the truth as it is and encouraging law students along the way. In essence, after watching the movies, one always has to remember that the journey to mirroring the great lawyers we see ‘on screen’ is actually undertaken ‘off screen’. Therefore, it would take more than just cramming Harvey Specter’s lines to be like Harvey Specter. And the journey to being the lawyer of our dreams is definitely not a sprint, it’s a marathon. A number of us are still undertaking that journey in fact.
So here we go again, my second expose on what law movies don’t teach intending attorneys or law students –
In the movies I have seen, the cases are usually decided by a jury. The Judge simply calls Madam foreperson to announce the verdict. And she stands and says something to the effect of – “in the matter of the Commonwealth of Pennsylvania versus Walt Miller, on the count of murder in the first degree, we the Jury find the Defendant, not guilty”. And bam, the case is closed, finished or if you will, affaire classée.
Ready for a bubble bust?
We don’t operate a jury system in Nigeria. So, the judge is both the trier of fact and law. Second bubble bust? Judgments are often not that short. In fact, they are rarely short unless it is a concurring judgment delivered by an appellate Court Justice. Some are so short that all the Justice says is – I Concur. Yes, “I Concur” is the whole judgment. But that’s just the concurring Judgment of course. The lead judgment is usually detailed and it is expected to be so. This is because the reason for any decision of the Court should not be left to conjecture or speculation – see GABBY STORES (NIG) LTD v. MAGAJI & ANOR (2015) LPELR-40381(CA). To borrow some words from Karibi-Whyte, JSC on this point “…If judgments were to be delivered without supporting reasons, it will be an invitation to arbitrariness, a rule of merely tossing the coin and the likelihood to result in judicial anarchy”. This principle especially applies to the judgments of trial Courts (High Courts, magistrate Courts etc) since there exists the likelihood of an appeal.
In fact, when delivering judgment, a Court is expected to properly and holistically evaluate the evidence presented by both parties in the suit. The Court is even expected to mention and give reasons why it believes one witness over the other. This is why in judgments we have the ratio decidendi and the obiter dictum. The ratio is the reason for the decision while the obiter are comments made in passing by the Court.
So, it is really not as short as the movies may make it out to be. I have not convinced you beyond all reasonable doubt? Good. Visit any law report and eliminate your doubts. I should add a caveat which is – you could get bored into a snore at your first reading. It’s not strange. The first time I sat through the reading of a judgment, I recall hearing just two lines of what the Court said. The remaining time I honestly struggled to keep my eye lids from embracing one another.
Annalise Keating in How to get away with Murder
What Cross Examination really looks like in the real world
Law movies most times don’t reflect how cross examination happens in the real world. In most episodes, the witness breaks down crying in the witness box while admitting to be the real murderer or even a liar. Permit me to ask – like seriously? Who does that? The movie script writer does anyway. In real life, the one I and you are in right now, those things rarely ever happen. Instead, you have witnesses that lie through their teeth as though they are professors in whatever institute teaches lying.
There are others who are honest. And strangely, many of the honest ones don’t swear on the bible when about to commence giving their testimony. They swear on iron and indeed due to the fear of their ancestors releasing thunder, they end up telling the truth, the whole truth and nothing but the truth.
But sometimes, the truth could seem very improbable given a particular set of facts. Other times, the truth could actually implicate the Defendant. This is where the cross examiner usually tries to show that even if the truth is as the witness as stated, he is or could have been honestly mistaken due to one reason or the other. The witness could also have a lot juggled in his memory that his recollection of the facts is not trustworthy. For example, a color-blind witness would honestly be mistaken as to whether the traffic light was green or red when the Defendant sped past it. Similarly, a witness who suffers from dementia could actually have seen the Defendant at the crime scene but how sure are we that her memory loss hasn’t set in again and the Defendant wasn’t only passing by the crime scene without more. After all being at the scene of crime doesn’t mean you committed the crime.
This is why I sincerely doubt that the movies can fully teach anyone to be an effective cross examiner. That is just my personal opinion. Rather a host of resources could help one out. If I were to list a few resources (just as I may have done elsewhere already), they would be the following;
The list above is not exhaustive by any stretch of imagination. A lot of Senior lawyers could suggest more resources. I’ll suggest you ask for their list when and if you have the opportunity to do so.
Lastly, lest I forget. If I may add, the strategy you see in the movies where the lawyer argues with the witness under cross examination is not very advisable. I don’t think you should try it even in a moot competition. The aim of cross examination is really to control the witness’ responses. As a cross examiner, you want answers that support your case theory or narration of the facts. And arguing with the witness does not achieve this. In fact, in the average Nigerian Court, it is difficult to imagine that the Judge would be able to write down the quickly spoken words from your angry or argumentative exchange with the witness. Mbanu, the Court is not a typewriter. Besides evidence is to emanate from the witness and not the Lawyers – so your argument with the witness no matter how persuasive, does not eliminate or override whatever the witness has said in evidence. So please calm down on attempting to go all Annalise Keating on a witness in Court. Hope you got my point.
The difference between knowing law and knowing the business of Law
Law movies don’t teach the business of law. Law School doesn’t teach it as well. I’d explain. While in school, law students are taught the various principles of law. Yet little to nothing is said about how business works throughout the 6 years of learning. In the end, skillful lawyers are trained. Expectedly, they graduate with sufficient knowledge of the law. But it is hoped that they would proceed to set up and run efficient law practices. Yet they were never equipped with basic business skills. This leads to one result; we currently have Lawyers who don’t make the best business managers. I could be genuinely wrong but this is my current observation and I surmise that it is a simple result of the lack of business skills or training.
That said, it is noteworthy to mention that nearly every skill has a business side or part to it. A trained hairdresser needs to know how to attract clientele and grow revenue for her hairdressing shop. Else she could sit hungry with very skillful fingers that could wow even Mrs. Aisha Buhari’s scalp. A funny individual who wants to go into the comedy business must know his onions and that business sphere as well. Same thing applies to the rave of high-income skills we hear about on the internet these days. And in the same way, this applies to law as well. The skillful lawyer would only be able to derive maximum commercial value if he can employ his business skills. This means he should have some measure of business skills in addition to his legal expertise.
You may contend that the law is really a vocation or calling and business skills have no place here. I will invite you to view the reality which is that law practice has largely evolved into being a business like any other business. I agree that there is the vocational part to legal practice; where the law is a calling and the lawyer is the conscience of society and voice to the voiceless. This part remains unhurt and is entirely fundamental. I even believe that effectively managed and profitable law practices can better fund Law based initiatives aimed at societal improvement.
To take a cue from other climes, the world’s largest law firms are efficiently managed businesses. In fact, in the United Kingdom, law firms are listed on the stock exchange and members of the public can own shares in them. This is possible due to the UK’s Legal Services Act of 2007. I might not currently argue that we need the large-scale changes introduced by the UK Act in Nigeria.
But my point is this; imagine that a law firm of that magnitude exists in Nigeria and dedicates just a fraction of its profit towards running a pro-bono program aimed at decongesting our prisons, we may achieve much more. So, better and bigger law businesses could mean more funds for driving public interest initiatives. A clear example is Hogan Lovells. In the 2021 financial year, the law firm grew its global revenue by 12.9% to $2.6bn largely due to its transactional practice. But more importantly, the law firm runs a dedicated pro bono department that has been operational for 50 years and the department still continues. Talk about law business and impact.
So that I don’t veer off the point. Let me state it again, Law movies don’t really teach students the business skills relevant for running a profitable law practice. Law books may not teach them either.
Lawyers tend to be workaholics. Even the movies show this in some bits. You know the signs – they range from keeping late nights to courting dark coffee and the obvious sleep bags under tired eyes by morning. We know the drill. From the University Faculties to law school as well. The truth remains that the reward for hard work is more work and there lies the temptation. The slippery one that I think has capacity to approach any lawyer and overcome him.
It is the temptation to just keep churning out work without considering the quality of work being churned out. I have posited in a previous piece that there are always two things to learn at every point – how to get things done and how not to get things done. When a lawyer has gotten grips on some fundamental parts of the lawyering job – he could stay at that plateau; just churning out work and more work without a deliberate attempt at reviewing and improving the quality of work delivered. This is what the movies don’t teach. Our favorite character in the movies never talks about going back to school for a master’s degree or undertaking a certificate course. But self-development and improvement are a must. In our profession one has to keep learning or get phased out. Our fav tv lawyer doesn’t stand that risk. But lawyers in actual practice do.
In sum and like I said earlier, law movies are great. I enjoy them. We all should enjoy them but, in the end, remember that the journey to mirroring the great lawyer you have seen ‘on screen’ is actually undertaken ‘off screen’.
For now, please get out another box of popcorn and binge on another blockbuster law series. T for tenks and sure, don’t mention.
If you considered this long season helpful, please share. And don’t forget to sign up for our web updates.
Written by Nkobowo Frederick Nkobowo LLB
In the season premiere of this post, I could not get into dealing with all the areas I mentioned. So, here we go for a season two of the post. Hopefully, the entire series of what law movies don’t teach law students will end with this season. Oh, pardon me, did I mention that the purpose of this post is
Now let’s be clear, suing is one thing and getting a favorable judgment is an entirely different thing. Technically speaking, both are even arrived at by different means. The first (i.e. suing) just requires the filing of the official documents required by the rules of Court or procedure. So, all a person needs to sue is file either a complaint, writ, petition, originating summons, or originating motion. When that has been done, the suit is in motion or better put, the suit has been instituted. In other words, the first step to reaching the light at the end of the tunnel has begun. Clearly the tunnel has to be our judicial process and the light at its end has to be the anticipated favorable judgment or outcome.
Somewhere along this journey to getting a favorable judgment is where the gist of this opinion piece lies.
This journey is what makes the Dispute resolution/Litigation Lawyer’s work tasking but in fact interesting as well. On this journey to judgment, evidence must be the travel guide, the knowledge of law would save the day or its absence will occasion doom, timely reactions or responses can restrain stormy clouds too.
While on this journey, the lawyer would have a travel companion. Not the mythical, mental or legal ones noted already but physical Companions. I mean he has commandeered the ship substantially. And he will have to still do so. The pleadings are his output – his drafting skills are shown there, the presentation of his client’s case is also his burden – his skill would show there as well. But at some point, witnesses would be vital companions to reaching that desired destination called favourable judgment. This is where things can get almost tricky – that is at the point were the witnesses step into the witness box, take the oath and have to give their testimony.
Thankfully, with the current procedure in High Courts around Nigeria, the witness’ tale is contained in his or her witness deposition. So, the possibility or likelihood of the witness narrating an oral portion of his autobiography is nipped in the bud. However, diligence in drafting the witness deposition is required to ensure that; evidence is given on all crucial points in the pleadings and documents are not dumped on the Court.
But that witness would be cross examined and there lies the ticking bomb that we’ve actually been trying to get at.
Let’s not forget that any skillful cross examiner often aims to conduct a fatal destruction of his opponent’s case and the only person that would have to overcome this attempt is the witness.
And drums rolllllll….most times, witnesses while in the witness box and when brought under the heat of cross examination, goof in flying colors.
Valedictory Court Session at the Supreme Court
Goofing in this instance usually includes everything stated in this list (with sprinkles of more or maybe slight variations);
The witness enters the box
Swears to tell the truth and nothing but the truth
Adopts his witness statement
Proceeds to answer questions under cross examination
Then begins to go off tangent andstarts saying things you wish you could choke him from saying.
Expresses confusion, looks at you (his lawyer) for some saving tips after ignoring the ones you had given before he got in there.
You try salvaging the situation by skillfully injecting but the witness’ loud mouth digs further, better and deeper pits for your case. When you need him to keep his lips sealed, guess what? He doesn’t! He opens his wide mouth while your eyes react in despair by widening in shock to the words visiting your ears.
You hold your wig, fighting the pressure to gently rise, take a bow at the Judge and immediately remove your wig for a vibrant toss at the witness’ digressing mouth.
Then maybe the witness turns and gives you that nervous smile – the annoying one. You can picture his face now. maybe the case and Court room even comes back to your memory.
We surely may not have been there and definitely do not know his name, so permit us to call him – the goofing witness of Madagascar. But is there a way out? A way to help both this witness from Madagascar and your suit which is being tried in Nigeria. After a new experiences, we think the suggestions hereunder may help;
Expect the damage – its supposed to happen.
2. Prevent the damage – pre-trial preparation
3. Control the damage – during cross examination
4. Contain/Mitigate the damage – final address
5. If Not Possible? Emotionally detach and continue acting professionally
– Expect the DAMAGE;
This to our minds is the first rule.
And we think, it has to be in the rule book for litigation gladiators. Litigation has been described as regulated contest; we agree that it is to an extent.
Damaging their opponent’s case is what trial lawyers do.
We dare say; it is an important step in our unwritten litigation ‘fight’ book. We crave causing damage to our opponent’s case. We dream for it. We live for it and in fact walk around with loads of techniques up our gowns for achieving it.
That is why we have the art, science and technology of that emotional endeavour called cross examination.
Remember that a one sided story sounds all true until the questioning starts – then you see the many cracks in a once perfect story. So there you have it – Cracks! Unveiling or in fact drilling cracks into the opponent’s case is why we have Section Section 214 of the Evidence Act 2011.
As Lawyers, hope that by revealing these cracks we get at the truth or at least know those witnesses that are lying through unperforated teeth.
Do we ever achieve the first aim of knowing or getting at the truth? Maybe we do sometimes.
But generally we settle for what can be proved or what most probably actually happened from all that has been said and proved in Court.
But either ways, ‘the damage‘ is expected. It is a crucial part of the whole affair. It should be done unless of course, there is nothing to damage (the opponent’s case is so weak that zero cross examination actually sustains the already existing damage – can one damage an already damaged leg? Maybe no.)
Prevent the DAMAGE
Expecting the damage puts one in a better position to properly prepare for and respond to it. After all, it is a common saying that proper preparation prevents poor performance. This is why pre-trial meetings with the witness are very important.
In our view, it is a prudent step not to totally believe the witness’ confidence outside the witness box especially that cocky confidence some of them exude before the hearing. It may be genuine but many times it proves very insufficient when placed under the heat of cross examination.
The pre-trial meeting should ideally cover some essentials one of which is the likely questions the witness should expect under cross examination. The breadth and length of what should be covered is really a matter of discretion.
Control the damage
It can be observed that most times during cross examination hints fly around. We both know from who – especially when the witness is saying what he shouldn’t. Most times the hints are not overt. An objection is used to pass it across. While explaining the reason for the objection – the hint is wittily thrown at the drowning witness with hopes that he quickly notices the hint and takes it. This arguably nears some border of unethical conduct. But the truth is – it happens often. And we both know who does it. Most clients (especially professional litigants) seem to applaud such interjections and benefit from them but expectedly the bench frowns at them. After all, the case is the parties’ and the witness should know his case through and through. If he doesn’t, why should he be worthy of believe or entitled to judgment in his favor.
But most times, most witnesses are genuinely confused, startled and could use some lawyerly succor while in the witness box. So, in trying to answer questions – they say more than they should. Hence the goofing syndrome. This is why an honest or moderate ‘expectation of goofing’ should be kindly accorded to each witness.
Mitigate the damage
In most cases, the damage could be mitigated at the point of final address. Some fundamental flaws could knock off the base from the adverse party’s case. This definitely leads to a ‘UAC V Macfoy’ situation where the damage becomes the ‘something that can’t be put on nothing’. And the nothing in this context would be the suit. Some of the major flaws are jurisdictional.
Where a jurisdictional flaw doesn’t save the day, contesting the admissibility of a crucial document and getting it expunged from evidence could. This is a slim rope to walk on; especially at the point of final addresses. The rule in Salau Okulade v Abolade Alade is to blame.
Other mitigating options could be tacit admissions arising from failure to cross examine on a crucial point, dumping documents on the court etc.
Sadly, but truthfully, another situation that tends to contain or even eliminate the damage is – a de-novo trial. A fresh bite at the cherry I would call it or old things passing away no matter how advantageous it may have been to one party. Most times, one party is happy when de-novo trials happen. That’s arguable – but it would be honest to expect it to be a common happening.
In containing the damage, there is a temptation to avoid. It’s a very attractive temptation and falling into it is almost seamless. It is the temptation to convert the written address into a medium for giving evidence – a.k.a attempting to say what the goofing witness should really have said. As honest an attempt as this may seem, it is yet to get judicial pass. So, no matter how flowery, enticingly smooth and suspense studded the lawyer’s written address is, it cannot enter the witness box. We mean, it cannot take the place of evidence.
If Not Possible?
Most times, it could almost be impossible to prevent the damage. Some cases are really bad cases. They happen. Although bad cases can switch mid-stream in few instances, it might be wise to explore the chances otherwise available for getting the Client’s interest protected.
Written by Frederick Nkobowo LLB. BL
Now let’s be clear, suing is one thing and getting a favorable judgment is an entirely different thing. Technically speaking, both are even arrived at by different means. The first (i.e. suing) just requires the filing of the official documents required by the rules of Court or procedure. So, all a person needs to sue is file either a complaint,
Law movies are great. I can assure you. Or do I have to convince you beyond reasonable doubt? Let’s consider the facts. The suspense of each episode leaves you on the edge of your seat, the plot twists has you suppressing a full bladder and the iconic lawyers make you haggle the price of suits every other day. Your favorite character in the movie is the lawyer who makes witnesses cry on the stand while admitting to perjury. Where the witness doesn’t cry or cower, this favorite character of yours argues with the witness during cross examination while the Judge bangs his gavel. That hot exchange wins the case most times as the jury immediately sees the point of the lawyer’s heated exchange.
Did I add that the court cases get concluded in a single episode? After all, the courts always sit, there are no letters of adjournments, no cause lists or learned Silks (and Senior Lawyers) who will get to call cases out of turn while your favorite character waits for his wig to get sufficiently old for the privilege. Besides an entire episode is not dedicated to replicate the last day you spent lengthy hours trying to file a time sensitive process at the registry at TBS.
Back at the office, this fav Lawyer of yours ogles his fellow employees and throws sexual banter freely in fact. Surprisingly, the judicial hammer in EjikeMaduka v Microsoft hasn’t found him out yet.
Your favorite lawyer in the movie series could be Alan Shore or Denny Crane in Boston Legal, Harvey Specter or Louis Litt in Suits, Rumpole in the series of the same name or the QCs in Anatomy of a Scandal. And did I just forget Annalise Keating in How to get away with murder? That oversight should be a capital offence in itself.
I duff my hat to you – one law movie series lover to another.
Certainly, I must not kill the thrills that any law enthusiast or student would get from seeing his best law movies. These movies do actually help in some ways after all. First, they show us that the effective Lawyer would have to be a confident person. He would have to possess great or substantial oral and written persuasive skills. His negotiating skill must be top notch. He cannot avoid being a rainmaker. And maybe lastly, he should have some poise, a great sense of fashion and some well-polished shoes as well. Did I miss out anything? I hope not.
But let’s hurry to the gist of this scribble. The gist is – the movies don’t give you the entire preview of law practice especially litigation practice in Nigeria. They do not contain some ticks and antics that are peculiar to litigation practice in our clime. I agree I repeated that point. But hope you get what am I saying.
Let me now attempt to convince you into agreeing with my point. I admit what I will say here may not entirely cover the field of discuss. Yet I will give it an honest attempt.
Movie poster of How to get away with Murder
So here we go, my expose on what law movies don’t teach intending attorneys or law students –
Drafting skills – Preparing pleadings, final addresses or briefs
The Law movies don’t test or refine your legal drafting skills. Many times, in these movies, the pleadings are flawless – so we get to the meat of controversy in the episode. Trial begins without any fuss and we see the lawyers flex the legal muscles that the script writers have assigned to them.
In real life and in our clime, many cases can be and are won or lost because of the poor drafting of the originating processes or the pleadings. Section 98 of the Sherriff and Civil Processes Act and the Supreme Court decisions in Izeze v INEC and Ors (2018) LPELR 44284 SC and PDP V INEC (2018) LPELR 44373(SC) pages 15 – 18, might be your cue here. Also, this brings to mind a defamation matter where we represented the Defendant and due to the various weaknesses in the pleadings and evidence of the Claimant, we could put forth an arguably formidable case for our client. Why was this so? No evidence of a third party was called and the defamatory publication was not reproduced verbatim in the pleadings. Your cases in point would be – OMALE v. FEDERAL POLYTECHNIC KADUNA & ANOR (2015) LPELR-25933(CA), Sun Publishing Ltd v Dumba (2019) LPELR 46935 (CA), Okafor v Ikeanyi (1979) LPELR 2418 (SC) and Guardian Newspapers Ltd v Ajeh (2011) LPELR 1343 (SC). I do suggest you look them up.
Apart from the pleadings, final addresses are usually not filed in the movies. I mean adopting final addresses with little to no adumbration like we oft do in our clime would take all the fun out of the movies. Wont it? In addition, the arguments are usually aimed at persuading a jury and so the issue of citing authorities and relying on stare decisis rarely shows up. And these are core issues any litigation lawyer would have to deal with.
Am I saying law movies are useless on this score? No, far from it. Rather, the final summations in these movies show that many times – even with the same set of facts, it is possible to argue for either party. Shocking? Maybe that should be. The Law may not weigh in favorably for one of the party’s case – but things can and sometimes do change at trial. Many times, this change (at trial) centers on what a party does eventually prove. If he can prove nothing – the law might just be able to something similar – grant him nothing, no matter how favorable the facts may have seemed to be at the beginning.
A scene from Anatomy of a Scandal
Thinking on your feet
The movies do show why every lawyer must learn to think on his feet. But they don’t teach you the actual thinking. Or do they? Throughout trial, the Lawyer would have to make some professional judgments and call some shots based on what he honestly believes to be in the utmost interest of his client’s case. These professional judgments could range from determining whether to object to a document, ask a certain line of questions, rest the Defendant’s case on the Claimant’s or whether to even cross examine at all.
Sometimes these shots have to be called under very short notice and immense pressure. And the decision has to be in the best interest of the client but within the boundaries of the law. Most times, it’s a tough call – like being between the devil and a hard place. But if I could borrow a few words from Iain Morley on this they would be this – “judgement is what you are paid for…it is your greatest necessity as a lawyer. Whether you have it or not is usually a question of talent, feel, common sense, understanding of the law, experience and occasionally cunning”
Judge Clark Brown from Boston Legal
Dealing with Judges
A core part of litigation work involves dealing with Judges. They are the impartial triers of fact. But they are human as well. So, they have their mannerisms, ticks and biases. Yes, I typed that – biases. Above these three things (i.e. mannerisms, ticks and biases) sits the law, and we expect judges to pay allegiance to it while dispensing justice. So, dealing Judges is crucial part of what the litigation lawyer does. It will also affect how effective he is perceived to be at what he does.
Shouting at the Judex or antagonizing the bench may not get the job done. This is my personal opinion and I could change it by dusk tomorrow. But from what I have seen so far, I honestly hold the view. Do I think we should not be firm when the need arises or when occasion demands? Certainly not. Each response should depend on the Judge involved – that is why the advice – know your judge is eternally important. Do the movies show that? Sometimes I think they honestly do – at least Boston legal did; with Judge Hooper and Judge Clark Brown. But I don’t think adopting the strategy employed in the movies would help your client or his case.
In sum know the Judge and know how to deal or better still relate with him. And certainly, I mean knowing and relating with the Judge within the boundaries of the law.
My gist is already getting quite long but four last points are yet relevant. I’d just list them and try overcoming the temptation to talk a lot further. So here we go; Law movies won’t teach the following as well;
What a judgment really is like
What the business of law actually means
Cross Examination in the real world
The importance of continued Self and professional Development
Permit me to rather adjourn further discuss on the subject to a later and better blog post.
Written by Frederick Nkobowo LLB
Law movies are great. I can assure you. Or do I have to convince you beyond reasonable doubt? Let’s consider the facts. The suspense of each episode leaves you on the edge of your seat, the plot twists has you suppressing a full bladder and the iconic lawyers make you haggle the price of suits every other day. Your favorite
I remember the class and the lecturer. But the day of the week I cannot recall at this moment. The class was the Law of Evidence and the Lecturer was an Elderly male Lawyer with a fair skin (Name withheld). It was the last class on evidence for the semester. So the Lecturer began a review of the course work done during the semester till that point. Exams were fast approaching so everyone needed some shaping before Ds and Es would ‘jam’ people’s children.
I know I heard his first words and then this heavy evil spirit of untimely sleep came upon my eyelids, causing my head to nod like that of an impregnated agama lizard. I fought to keep my eye balls open and facing the dear Lecturer. Oh how I wanted to just stare at him at least. But the more I tried; the more I nearly fell off my seat.
However, once he said something to the effect of ‘that is the end of our course work for this semester’, the dose of sleep threatening to send my head rolling, immediately left me and my eyes started shining like those recently rinsed in local gin. No sleep, no nodding. All just seized.
Fast forward to some years later; I was tasked to conduct a hearing – the cross examination precisely. The law of Evidence I had dosed in front of; now stared me in the face literally and I dared not dose this time.
But I hold the respectful view and dare say before the point of cross examination, a case can be won or lost from the pleadings and evidence in chief. Why do I say so?
As Lawyers, we believe in Justice. And many times; we believe the task of the Court is to find the truth of what actually happened in any given case so that justice can be achieved. I believe in justice but I share the view that in many cases than none; judicial business is not an inquiry into the truth, but an inquiry into facts that can be proved by credible and admissible evidence.
So, however we see it, justice does not walk around unclad. Rather she is very piously dressed in long flowing gowns of evidence and due process. This is where i believe the lawyer’s job comes in.
The client is the master of the facts. As lawyers it is not our job to manufacture facts but once we have the facts, we are to handle them professionally. The first port of professionally handling the facts is really the pleadings. The rules of pleadings when not obeyed, could mar the chances of a party obtaining judgment in his favour. Sometimes it is needful to pull apart the pleadings by asking very simple and salient questions such as;
What exactly is the adverse party saying?
What exactly has he NOT said?
What evidence does he intend to rely on as proof of his assertions?
Are these pieces of evidence admissible in law or do they suffer some other defect that could weigh negatively on their credibility?
The questions above are surely questions for the attack. We could add more to them to ensure we have surveyed the suit from as many angles as possible and then have settled our preferred mode of contesting it (with the facts at our disposal). But on our own part, we have work to do as well.
The Client has given us facts as well. Our job has also started. We are to satisfy the conditions that will transform the hard facts into admissible evidence, evaluate the weight of the evidence we intend to rely on and review our case strategy from time to time. We also must look closely so that we can tell apart mere speculation from hard evidence as well as second-information or embellished hearsay from hard evidence. If the adverse party’s lawyer does not sniff out the loops in our case out, the Judge may and if the Judge does not, the three wise Men may so do. And when they do not the infallible panel of 7 or 5 Law Lords may do so to our own peril.
Litigation Notes are a series of short courtroom and practice lessons gleaned from the personal practice journal that chronicles the green wig years of Frederick Nkobowo Esq. They represent his considered and respectful opinion which could change as his age at the bar inevitably progresses. It is respectfully hoped that these notes would proffer some aid toother practitioners even as the writer looks to gathering more learning. He practices in Delta State and can be reached via fredericknkobowo@gmail.com
I remember the class and the lecturer. But the day of the week I cannot recall at this moment. The class was the Law of Evidence and the Lecturer was an Elderly male Lawyer with a fair skin (Name withheld). It was the last class on evidence for the semester. So the Lecturer began a review of the course work
In this note, I have compiled various thoughts passed down by senior colleagues and gotten by observation. They are couched in short paragraphs and sure wont bore you to the bone. So here we go;
On Judges
Know your Judge.
Judges have this fearful thing called discretion. General rule: Judges don’t bite but their discretion may sting.
During Cross Examination
At cross-examination– fear not. Understand the witness. Understand what you want to establish by asking each question. Know your cross examination destination and take the witness on the trip with you. Avoid his deviations.
Preparation is key.
Be smart on your feet and at home with the facts/applicable law of your case. Understand the general direction of the case/litigation and the manner of presentation of the case on both sides. Be quick to notice a sharp move when it happens especially when same comes from your learned friend. Nip such quick stints in the bud.
Churning Or Learning?
The grit and grin of law practice can keep you churning out work and never ‘really’ learning and improving your law practice. Therefore, you may end up churning out lots of work but with less productivity, skill and expertise.
Periodically audit the quality of legal services you offer and be deliberate about improving the quality of your work and services.
Skill set, knowledge and drive = three must-haves
Written Address
From the beginning make your postulations
Produce the facts. Don’t embellish.
Draw logical inferences from the facts and analyse to support your postulations
End with the affirmation of your postulations
When Reviewing cases that you intend using for your arguments and addresses, do not only look at the ratio or determination of the Court on the issues raised. Also consider the arguments made by Counsel for the parties in the case under review. There you will see first-hand the ingenuity of Counsel, sometimes the arguments of others would help offer guidance to yours too.
Professional/Personal Development;
Dedicate an hour every day to personal development because you are your first business and largest investment especially as a lawyer.
Gather knowledge. Salaries and benefits could be gotten back from you but knowledge acquired cannot be gotten back.
Don’t class what you are worth by your background circumstances. As a lawyer you are a professional. Think as one. Observe critically. Be a positive contributor to any system you are a part of. Explore and exploit the opportunities of relationships you have to be better.
Grit
The litigation lawyer must have the skin of a thousand crocodiles; thick, tough, unbending but useable for making leather that solves the client needs. Litigation is regulated war. Sometimes you bleed and sometimes you bleed others – not literally though. Scratch that, because I know that when you get neck crushing and spine twisting cost awarded against you as counsel that is near bleeding literally. I just know.
Sometimes everything that could, would and should go wrong in a case just happens. And you are in the midst of the storm of wrongs. Your wig feels like falling off and you just want to duck under your gown.
Yet, you only must pick up yourself, dust your gown, adjust your wig and in your next words raise your voice and say; “Most Respectfully My Lord…”
Simultaneously as you voice those words, a part of your mind whispers; “if I perish, I perish”
Litigation Notes are a series of short courtroom and practice lessons gleaned from the personal practice journal that chronicles the green wig years of Frederick Nkobowo Esq. They represent his considered and respectful opinion which could change as his age at the bar inevitably progresses. It is respectfully hoped that these notes would proffer some aid toother practitioners even as the writer looks to gathering more learning. He practices in Delta State and can be reached via fredericknkobowo@gmail.com.
In this note, I have compiled various thoughts passed down by senior colleagues and gotten by observation. They are couched in short paragraphs and sure wont bore you to the bone. So here we go; On Judges Know your Judge. Judges have this fearful thing called discretion. General rule: Judges don’t bite but their discretion may sting. During Cross Examination
When we start off after being given proper license to wear our wigs and gowns without fear or favour, we know we still have a number of things to learn. A lot has been passed down our throats theoretically and even with these a lot more are not taught in the conventional law class. I will give a few examples. I am yet to attain a law class on how to relate with a critical or difficult judge. What about how to deal with the office politics in the law office you currently work in…any law professor taught you that? None taught me.
A number of these things are practically learned while in the bustle of legal practice. Besides navigating some of these issues most times may require knowledge/wisdom that is found outside the pages of any law textbook in existence. So, in my respectful opinion, an old wig has its worth.
Thankfully too a number of seniors have taken the labor to put down in books some practical guides to help out in the course of our practice as young lawyers.
These Books are not about the law strictly but about the practice life and experience of lawyers.
Reminiscences at the bar was a title I found I my university library. Then there is Oputa’s book – another title I found before My call. However 4 books came into my personal collection after call and I have found them to be immensely helpful. And like I mentioned earlier, I do not hesitate to recommend these books to any and every practitioner (whose core of practice is dispute resolution).
They are;
Hints on Legal Practice by Anthony Ekundayo
The Devil’s advocate by Iian Morley
Cross Examination; the trial Lawyer’s most potent weapon by Yemi Osinbajo and Fola Worrey
Advocacy Tactics and Antics by T. Oscar Aorabee
Furthermore, the point to me remains that when we have been called to the bar and are still regarded as ‘new wigs, just called yesterday’; but being a young wig does not mean being grossly incompetent. It does not have to be; especially if you do not let it.
In fact in my opinion being young at the bar could be an advantage; the advantage of youth, strength and passion. In effect; being young could really mean; grossly underrated but serially powerful (if the needed work is put in that is). Why do I say so?
The senior lawyer (if he is for the adverse party) might clearly underestimate your abilities; I mean he has seen none of your abilities on display to even rate in the first instance. And therefore learned senior counsel may comfortably risk leaving a number of loose ends to chance with the comforting thought of – “after all counsel on the other side is a young lawyer”.
This reminds me of Malcom Gladwell’s David and Goliath and a pending matter I was involved in a while ago. The lawyer for the adverse party clearly assumed that the young lawyers ‘on the other side’ could do no harm to his case. The confidence was palpable. But I had read in Malcom Gladwell’s book that Goliath’s huge stature was a disadvantage. I somehow took this to heart and the rest they say is history. We obtained victory for our client.
The point as already made is; your being young at the bar and thus being underestimated would likely make the confident side unwittingly give you a lot of loose ends to work with; use them appropriately. After all, who closes his parlour door when it is rumoured that one soldier ant is visiting at night. That’s just an analogy. But hope the point is made.
Please note that the above is not always the case. But when you have the penchant of always giving in your best, it really should not matter. In addition, to borrow the admonition of a senior colleague that I respect immensely; the goal is to be an experienced lawyer and not necessarily an old lawyer.
As an added suggestion: Hints of Legal Practice by Anthony Ekundayo is a worthy read.
When we start off after being given proper license to wear our wigs and gowns without fear or favour, we know we still have a number of things to learn. A lot has been passed down our throats theoretically and even with these a lot more are not taught in the conventional law class. I will give a few examples.
Thank goodness our first appearance is off the table. We are however still grinding our legal teeth – the litigation pair that is.
But there is that strain. The slight inconvenience of being a ‘junior’ Counsel in Court and with another junior appearing for the adverse party. You arrive Court before 9am, take a seat where your shiny new wig would permit. Then you search for your matter on the cause list. This is not the Federal High Court or the Court of Appeal. Not at all. For those, you would have a senior leading your humble learned self. This is the State High Court and you are the junior whose matter has been listed as number 22 on a cause list of 22 matters.
You know the feeling. It’s like coming last in class. Or maybe not, since you reason you could negotiate your position forward by seeking the kind permission of your learned seniors in Court. You seek that kind permission. Very humbly you ask. But sometimes that kind permission is unkindly withheld. You frown. Clearly another day of yours has been involuntarily assigned to you sitting through till the Court rises. Just like it happened last week, and the other before.
The wait for all seniors present to finish prosecuting their cases so you get to ‘indicate your interest’ in number 22 on My Lord’s cause-list can be distressing. But within that period, just like within every other period during our professional career; you and I can do two things by simple and careful observation –
We can learn ‘how to’. And We can learn ‘how not to’.
In effect we can learn – How to approach matters before a particular Judge, how to deal with various issues that may arise in the course of arguing a contentious application, how a particular principle of law is applied to a set of facts etc.
So if we see an issue excellently handled or successfully navigated– that is ‘how to’. When we can, it can be advised that you replicate same.
If we see an issue improperly handled and thus necessitating a stern rebuke from the bench (in some cases) – that is how not to. When tempted to do same, it is advised that we kindly call on all celestial forces we know to help us overcome such an urge.
Even in chambers these two learning pathways in my respectful view are always open. How to and how not to. We can choose either at any relevant time.
Litigation Notes are a series of short courtroom and practice lessons gleaned from the personal practice journal that chronicles the green wig years of Frederick Nkobowo Esq. They represent his considered and respectful opinion which could change as his age at the bar inevitably progresses. It is respectfully hoped that these notes would proffer some aid toother practitioners even as the writer looks to gathering more learning. He practices in Delta State and can be reached via fredericknkobowo@gmail.com
Thank goodness our first appearance is off the table. We are however still grinding our legal teeth – the litigation pair that is. But there is that strain. The slight inconvenience of being a ‘junior’ Counsel in Court and with another junior appearing for the adverse party. You arrive Court before 9am, take a seat where your shiny new wig