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Speech by the The Honourable The Chief Justice Chan Sek Keong at the launch of Modern Advocacy: Perspectives from Singapore

Speaker: The Honourable The Chief Justice Chan Sek Keong
Date:
2008-07-25T00:00:00+08:00

Fellow Members of the Singapore Academy of Law:

 

1.      I am absolutely delighted to be here this evening to launch the latest book from Academy Publishing - “Modern Advocacy: Perspectives from Singapore”. I am also very proud to do so. I wish I could take some credit for the idea for the book, but it goes to a group of people I will now acknowledge.  

 

2.      As you will read from the Preface to the book, the idea for this book came from the late Justice Lai Kew Chai more than 5 years ago when he was the Chairman of the Professional Affairs Committee. He wanted the SAL to publish a book on trial advocacy written by Singapore lawyers for Singapore lawyers. When Justice V K Rajah JA became the Chairman of the PAC, he took up the challenge and, with his drive and persuasion, succeeded in getting together 17 Senior Counsel and 3 Judges to finish their chapters within less than two years. This is actually quite a feat, given the family, social, professional and other commitments that the authors had. So credit must also go to Justice V K Rajah JA for bringing this project to fruition.

 

3.      I would also like to thank the three general editors for their oversight of the book. In particular, I would mention Associate Professor Eleanor Wong and commend her for reviewing the drafts to ensure that the quality of the writing and the ideas match the standing of the authors. Thanks are also due to Academy Publishing for bringing out another outstanding book in the Law Practice Series.

 

4.      Of course, full credit goes to the contributors for volunteering to share with the litigation Bar their experiences and expertise in the management of court processes and trials. The authors have made an invaluable contribution, one truly not measurable in financial terms, to the future generation of advocates. I am fully aware of the imposition on the authors to put pen to paper (or fingers to keyboard) to write this book. It is an imposition because advocates usually prefer talking to writing, unlike other professionals, such as perhaps academic lawyers. But in fact, writing down ideas and know-how is just another form of advocacy for a different audience and a different purpose.  On behalf of the SAL, I wish to extend my heartfelt thanks and gratitude to them for writing this book as a legacy to the legal profession.

 

5.      I have read some but not all the chapters in the book. The contents page shows that it is an extremely well organised and structured book: surely the work of a superior lawyer. Although the title of this book is Modern Advocacy, it is really about the modern trial process in civil and criminal proceedings in our courts. The book begins with a chapter that distils the experience and wisdom of our most senior Senior Counsel as a summation of what good advocacy is. It is then followed by an innovative chapter on the need to formulate a case theory on which to strategise to advance your client’s case or destroy the other party’s case. The other chapters are equally useful, perhaps less scintillating, on how to prepare your case and present it, how to conduct yourself and so on. Most important, of course, is how to substantiate your case theory with evidence and law and to persuade the Judge that the other party has no case, whatever his case theory may be.

 

6.      So, it is a battle of wits and wiles of opposing counsel, and that may explain why litigation can be exciting and exhilarating to some and fearful to others. Two days ago, the Judges had the pleasure of having Lord Hoffmann to lunch, in the course of which he was asked about the best advocates at the English Bar. He told us who they were, and then told us of a recent case before the House of Lords in which Jonathan Sumption QC and David Pannick QC were on opposite sides. After the hearing was over, an observer informed Lord Hoffmann that what he had seen was the legal equivalent of the 2008 Wimbledon Tennis Final between Federer and Nadal.

 

7.      The word “advocate” comes from the Latin word “vocare” meaning “to call to”. The word “vocation” is derived from it, and this may explain why the legal profession began as a calling or a vocation. The Dutch word for “lawyer” is “advocaat”, but it is also the name of a Dutch alcoholic drink called “advocaat”, which is like eggnog. It is called “advocaat” because it is supposed to help clear the throat, so that he who drinks it may speak better. Advocacy is in essence a way to communicate a message to an audience. An advocate is one who pleads, intercedes or speaks on behalf of another. The art covers a whole range of clamouring for various causes and interests in many forms and styles. Blogging is the latest. Others do it by walking the talk, demonstrating in the street, going hungry and even gluing oneself to another. Law academics do it by agreeing or disagreeing with court decisions by giving better reasons than those given by the judges.

 

8.      But the type of advocacy that this book is concerned with is forensic advocacy which, in the history of the common law, took a few hundred years to establish itself as the accepted mode of pleading a case in court. In the past, there was trial by battle and combat, trial by ordeal (fire and water), trial by the taking of oaths, and then trial by judge and/or jury when the advocate came into his own. Modern advocacy in Singapore is a specialised form of communicating to only one person, the judge, with the single objective of persuading him to decide in your client’s favour. In this connection, you may recall the theory of the realist school of jurisprudence that the law is not in the books, but in the judge, in his personality, i.e., his likes and dislikes, his quirks and failings and vanities. Some counsel may sometimes find advocacy somewhat arcane when they cannot fathom how they could have lost the case on the evidence before the court.  But, I am glad to note that in this book the contributors have not stated or theorised that in Singapore knowing the judge personally or the habits or beliefs of the judge can give an advantage to his case. 

 

9.      Let me now reprise a point I have made previously that for various reasons, corporate advisory and execution work in the law firms could supplant advocacy as the traditionally primary function of a lawyer. The battle is still on, but it is not yet lost. Contrary to anecdotal evidence, the litigation Bar is thriving. Here are the statistics from the Supreme Court records.

 

(a) Between March and July 2008, a total of 1073 (unique) advocates attended hearings before the Registrars. 
(b) Between January and June 2008, 409 advocates appeared in High Court trials and 278 appeared in Court of Appeal hearings. 
(c) The corresponding trial figures for State Counsel and DPPs are 24 and 15 respectively.
(d) The corresponding trial figures for Senior Counsel are 14 and 18 respectively.

 

10.      These are raw and self-contained figures. They overlap in place and time, and hence double and perhaps triple counting exist. But the bottom line figure is 1073 which we can assume comprise largely junior advocates. It is reasonable to add another, say, 120 more senior advocates to that number, giving a total of about 1200 litigators. That is slightly higher than 30% of the 3540 lawyers holding practising certificates today. This is a good number. So today I am now more optimistic than last year about the state of the litigation Bar. This book is a timely reminder that litigation has a redeeming value in the administration of justice and one worthy of pursuit as a career. 

 

11.      Let me now conclude by reminding the litigation Bar that litigation is civil warfare conducted in a civilised setting according to fair means and transparent rules designed to bring the truth, which we know is out there somewhere, into the courtroom so that justice will prevail. The defining words are “civil”, “civilised”, “fairness” and “justice”: these are the hallmarks of the litigation process in our courts.

 

12.      I now have great pleasure in launching the book Modern Advocacy:  Perspectives from Singapore.



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