The Trilogy of Civil Litigation

The Trilogy of Civil Litigation

The author has been involved in and engaged in civil litigation since becoming a pupillage. Therefore, I can say that I am quite familiar with the civil litigation.

Most of Chinese classmates of the author grew up watching Hong Kong TVB drama. Under the influence of the drama, everyone admires the barristers who can talk confidently in court and defend their clients in an orderly manner.

When the author became a pupillage and started to participate cases in court, I discovered that the TVB plot that I had watched from an early age seemed a bit different in actual civil litigation. Before the author has unveiled the procedures for civil litigation in Malaysia, the author hereby gently warns readers that this article may undermine everyone’s impression and admiration of lawyers since childhood. Because most of the litigation is not as same as the TVB plot (it is more based on the script of the drama).

The first step in civil litigation is the case management or mentions. I believe that everyone often reads in newspapers or online media that “the case of XX has been filed to the court, and it will be postponed to the XX period, etc.”. The case management or mentions is a process in which the Plaintiff and the Defendant report their positions to the court before they reach the real battlefield (Trials). I call it the process of allowing both sides to test each other’s cards. When going to court, both the Plaintiff and Defendant must ensure that they have submitted their arguments, documents, and witness lists to the court so that the court and the other party is aware. The court has the discretions to give a new date when either party is not ready or the documents are not finalized. If a case is delayed for too long and the court has given both parties sufficient of time to prepare, the court can choose not to give it further postponement and proceed directly to next stage of the litigation.

Case management is also giving both parties to warm up and allowing both sides to freely play “small tricks” to analyse both opponents. During the Case management process, both parties can make some interlocutory applications upon approval by the court, the purpose of which is to clarify the views and positions of the law. Examples include:

1)       Applying for Striking out application;

2)       Applying to add Co Defendant(s);  

3)       Applying for an Expert Witness;

4)       Applying for Third Party Proceedings;

5)         Application for Discovery of Documents.

In a civil litigation, going to court is the only way for every pupillage or junior lawyer to experience or learn the art of litigation or advocacy. The reason behind this is that you can understand the entire litigation process. Secondly, the senior lawyers or the master of the pupillage is more comfortable to let the pupillage or junior lawyer handle it, because the case management is usually only for everyone to report to court, and there is less room for law disputes. What we must understand is that the stage of case management actually takes up about 60 to 70% of the entire civil litigation process.

Only when the court is satisfied that both parties have filed all cause papers and are ready to proceed, the entire litigation case will proceed to a trial. A trial is the procedure in which the court receives the evidence presented by both parties. To put it bluntly, the court trial is to let both parties to present all the documents or arguments prepared previously to the court for evaluation.

The most important element of the trial is that the witness must sit in the witness box and swear to give evidence. Those lines “witnesses you must answer the truth, otherwise giving false confessions will have serious consequences“, “witnesses, you lied!” “Your Honor, I oppose to the opposing lawyer’s extortion of witnesses like this.” happened in court when trial. The trial is actually the stage that testing the skill and advocacy of a litigator. A good litigation lawyer is able to cross-examine and obtain the desired answer from the opponent’s witness accurately; and how to reorganize the case so that the judge can have better understanding of the views and positions of his clients.

Since the trial is the highlight of the litigation case or the battlefield of fighting with his opponent, the lawyers leading the case would usually be senior lawyers or the boss of the law firm. Of course, because the witness must attend the trial; and the client is usually one of the witnesses, the senior lawyer or the boss of the law firm must conduct the trial in person to show the importance of his case.

The final stage would be the hearing stage (Submissions). This is to allowe both parties to lay down all the evidence and arguments based on the trial. Unlike trial, the witnesses will not participate in the hearing because the hearing is a final statement given to the court by the lawyer after integrating the case and the existing law, convincing the court that its client is relatively correct and reasonable.

Unlike what we saw in the plot, most of the closing statements do not have very dramatic or emotional statements. The most important thing is to make the court understand your case easily. Another point is that in many civil lawsuits closing submissions, the judge will only require both parties to submit written submissions instead of oral submissions. The reason may be that written submissions can save the judge a lot of time and can achieve a better understanding on the positions of both parties by reading the submissions of both parties. Generally, the court will give a judgment after the hearing. If the judge is unable to give a judgment on the spot after hearing or reading the closing submissions, the judge can fix another date to grant a reserved judgment.

The trilogy of civil litigation mentioned above is only applicable to Writ cases whereas some cases, such as Originating Summons, have only two parts: case managements and hearing, but no trial. The biggest difference between a Writ and an originating summons is that the plaintiff and the defendant of the Writ have disputes on the facts of the case and the originating summons is only required the two parties to dispute the law of the case. The court is to clarify or decide the legitimacy or translation of legal provisions or contract terms.

BY WINSON TAN

Note: This article is for reference only and does not constitute legal advice. Therefore, if readers have any legal questions or needs, they should seek professional legal advice. If the reader suffers any loss by relying on this article, the author will not be held responsible.

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