Justice Andre Maniam: Speech delivered at the Litigation Conference Workshop 2023

Litigation Conference Workshop 2023

Litigation 201: A Better Tomorrow

Justice Andre Maniam
Supreme Court of Singapore

Representatives of the Law Society, speakers, trainers, and organisers
Members of the litigation bar
Ladies and gentlemen

Introduction

1. Thank you for the opportunity to share my thoughts at this first in-person litigation conference since the pandemic.

2. My theme is, “Litigation 201: A Better Tomorrow”:

1. “Litigation 201”, because this is not as basic as “Litigation 101”;
2. “A Better Tomorrow”, because this is forward looking, and hopeful.

3. I will cover three topics: 

1. What is “business as usual” in litigation?
2. What is litigation like in the “new normal”? How have virtual hearings, and the new rules of court, changed things? 
3. What do I wish I had known whilst in practice?

A. What is “business as usual” in litigation?

4. What works, and will continue to work?

5. 5 Cs:
(1) be clean;
(2) be clear;
(3) be concise;
(4) communicate; and
(5) be current.

6. Be clean – this is basic, but crucial. Lawyers are members of an honourable profession, officers of the court; lawyers play a vital role in the administration of justice. There is no place for unethical conduct.

7. Be clear – at worst, the court will disagree with you; but at least the court will understand you. Conversely, if you are unclear, you may waste a good point because it was not understood.

8. Be concise – spend time to save time. Blaise Pascal said, “I have made this [letter] longer than usual because I have not had time to make it shorter.” It takes time and effort to write short submissions, but they are better than long ones. In one of my first trials, I forgot to set page limits on written submissions, and the parties gave me 800 pages in total. It was painful, I learned the hard way, and I have not let that happen since.

9. On a related note, consider telling the court early on – what is the matter about, what are you asking for, why should the court agree with you; then elaborate. Stating your Bottom Line Up Front (“BLUF”) is often a good strategy.

10. Communicate, don’t just present – be responsive to the court. There is little point in reading out written submissions that the court would have already read. Oral submissions are an opportunity to emphasise or elaborate, to respond to your opponent, to interact with the court. If the court has a question, try to answer directly, there, and then; at least briefly if you want to develop the point later. Do not just say, “I’ll get to that in an hour’s time”.

11. Be current – keep up to date with developments. For instance, did you know that in international commercial arbitration matters governed by the International Arbitration Act, you can file applications directly with the Singapore International Commercial Court (“SICC”)? There was a recent legislative amendment on this, following which the Singapore International Arbitration Centre revised its model clause to encourage parties to such matters to make an express choice of the SICC as the supervisory court.

12. Continue learning; and in that regard, I am glad to see so many of you here for this conference.

B. What is litigation like in the “new normal”?

13. Two recent changes of note are: the prevalence of virtual hearings, and the new rules of court.

         (1) Virtual Hearings 

14.  The standard allocution is a reminder that virtual hearings are still court hearings (except that you do not need to stand and bow). Bear in mind that when your microphone is off, but your video is on, you can still be seen – so avoid distracting behaviour. And if you turn off your video, but forget to turn off your microphone, you can still be heard. You may be surprised how often lawyers have animated discussions with their colleagues off screen but “on air”, during breaks in the hearing.

15. Think through the logistics. If you need to share documents on screen, are you comfortable with the process? Are you using hard copies with tabs (but no pagination)? If the judge is using a soft copy instead, pdf page references would be more useful.

         (2) New rules of court 

16. The new rules of court are simpler and shorter, they aim to modernize the litigation process, enhancing efficiency and speed of adjudication.

17. I highlight Order 3 of the Rules which sets out five Ideals which the Rules seek to achieve. The court will seek to achieve those Ideals in all its orders or directions, and all parties have the duty to assist the court and to conduct their cases in a manner which will help to achieve the Ideals. Those Ideals are:

(a) fair access to justice;
(b) expeditious proceedings;
(c) cost-effective work proportionate to –
         (i) the nature and importance of the action;
         (ii) the complexity of the claim as well as the difficulty or novelty of the issues and questions it raises; and
         (iii) the amount or value of the claim;
(d) efficient use of court resources;
(e) fair and practical results suited to the needs of the parties.

18. Of course, knowing the Ideals does not mean you do not need to know the rest of the Rules. The Ideals flesh out the spirit of the Rules – understand the Ideals, and you will understand the Rules better. Put the Ideals into practice, and you will be a better litigator.

19. Going back to the 5 Cs I mentioned – be clean, be clear, be concise, communicate, be current – they all help to achieve the Ideals.

C. What do I wish I had known whilst in practice?

20. Let me put it this way:

1. procedure matters more than you might think;
2. cases turn on less than you might think; and
3. you, as a litigator, are more important than you might think.

         (1) Procedure matters more than you might think

21. As a practising lawyer, it was tempting to focus on the substantive merits of a case. Why should procedure get in the way of substantive justice? Why should good cases be lost on a “technicality”, or because of difficulties with the evidence?

22. But the court seeks to balance procedural justice and substantive justice, to achieve – as far as possible – a fair and just procedure that leads to a fair and just result (per Andrew Phang JC, as he then was, in United Overseas Bank v Ng Huat Foundations Pte Ltd [2005] 2 SLR(R) 425 at [4]–[9]).

23. So pay attention to the rules of court, pleadings, timelines (especially for unless orders and appeals), disclosure obligations, evidence, and so on.

         (2) Cases turn on less than you might think

24. Many cases turn on only one point, or a few points.

25. As a practicing lawyer, it was tempting to argue every conceivable point, to throw in everything but the kitchen sink, and then to throw in the kitchen sink as well. But it is rare for the kitchen sink to win a case – and if it does, perhaps that should not have been the point of last resort!

26. If you do have many points to argue, take the time to consider which ones are more important. Then place more emphasis, and spend more time, on those.

         (3) You, as a litigator, are more important than you might think

27.  A lawyer in practice is many things. You make a living as an employee, or business owner; you are a member of the legal community; you represent your client; you are an officer of the court.

28. You play a vital role in the administration of justice:

• as your client’s guide, counsellor, and voice; and
• in the assistance you provide the court, helping the court fulfil its role in the process.

29. One change for me when I left practice for the courts: I no longer worked on cases with teams of colleagues; instead, I had to count on the lawyers appearing before me, for support. So, whether you win or lose, thank you for your help. I am, of course, particularly grateful if you present your case in a clear and concise manner!

Conclusion

30. In conclusion, let me thank the organisers, speakers, and trainers, for giving of their time and effort for this event. I know what this would have cost if the experienced litigators (including Senior Counsel, and King’s Counsel) had charged their usual hourly rates; there are also the contributions of my colleagues from the court, and those from the Attorney-General’s Chambers. It is heartening that we have come together to uplift one another in this way.

31. I have fond memories of my involvement as a speaker or trainer with the Litigation Conference over the years. I learned much, from fine points of advocacy to basic tips such as: don’t be late, and visit the washroom before a hearing!

32. I wish you all a fruitful today, and an even better tomorrow.

33. Thank you.

Topic: Speech, speeches