Without fear or favour - Part 2
Contributed by President Toh Harnniann
Interesting fact:
Was Paul Harris the first president of a Rotary club? No.
Was Paul Harris the first president of Rotary International? Yes.
A couple of days ago, I was in a situation where most trial lawyers would get themselves into.
I was acting for the Plaintiff (the party who sues others is called a Plaintiff). My matter was fixed for hearing on Monday morning at 9.00 am at Shah Alam Sessions Court.
On Friday evening, the Defendant solicitor called and told me that he had to conduct trial at Kuala Lumpur Sessions Court so he would be late on Monday. He requested me to stand the matter down to 11.00am so he could rush from Kuala Lumpur. He asked me whether I was agreeable to postpone the matter on Monday and take another hearing date, I told him I was not agreeable as the matter has been delayed for 2 years. I agreed to stand the matter down to 11.00 am and asked him to send me a letter confirming the telephone conversation.
I did not receive his letter on that Friday.
On Monday, our hearing date, I was in Shah Alam Sessions Court as usual. When my matter was called up by the court at 9.30am, I informed the Judge that my opponent was not in court and requested the matter to be stood down. The Judge allowed my request and listened to other files first.
I was patiently sitting in the court waiting for the arrival of my opponent.
When my matter was called up again by the Court for the second time, it was already 11.30am. I have waited in the court for 2 hours for my opponent to show up!
The Judge asked me, “ok, apa kes awak? Mana defendan? (What is your case? Where is the defendant?)”
That was the time I had to make the crucial decision. I had 2 choices i.e. either informing the Judge that my opponent was not in the court and I wish to wait for him and requesting to stand the matter down again OR informing the court that I do not wish to wait for my opponent anymore and requesting for the case to be heard in his absence.
Fear rushed through my veins and my judgment was clouded by doubts.
Why?
I had promised to wait for my opponent till 11.00 am hadn’t I? If he was just merely 30 minutes late, can’t I just wait for him for a little longer? He might be stuck in a traffic jam!
But on the other hand, he was late, wasn’t he? I owed a duty of care to my client not to my opponent, agree? In the circumstances, what was the best for my client? Of course my client would be delighted if he knew that the matter was not postponed further and judgment was entered against the Defendant.
If I give chance to my learned opponent, I would win friendship but this matter might be postponed to another date and my client would suffer further delay.
If I decide otherwise, my learned opponent would curse me acrimoniously and label me as a man without honour but my client need not endure another round of delays.
I was only given a few seconds to make the decision.
(to be continued)
I was acting for the Plaintiff (the party who sues others is called a Plaintiff). My matter was fixed for hearing on Monday morning at 9.00 am at Shah Alam Sessions Court.
On Friday evening, the Defendant solicitor called and told me that he had to conduct trial at Kuala Lumpur Sessions Court so he would be late on Monday. He requested me to stand the matter down to 11.00am so he could rush from Kuala Lumpur. He asked me whether I was agreeable to postpone the matter on Monday and take another hearing date, I told him I was not agreeable as the matter has been delayed for 2 years. I agreed to stand the matter down to 11.00 am and asked him to send me a letter confirming the telephone conversation.
I did not receive his letter on that Friday.
On Monday, our hearing date, I was in Shah Alam Sessions Court as usual. When my matter was called up by the court at 9.30am, I informed the Judge that my opponent was not in court and requested the matter to be stood down. The Judge allowed my request and listened to other files first.
I was patiently sitting in the court waiting for the arrival of my opponent.
When my matter was called up again by the Court for the second time, it was already 11.30am. I have waited in the court for 2 hours for my opponent to show up!
The Judge asked me, “ok, apa kes awak? Mana defendan? (What is your case? Where is the defendant?)”
That was the time I had to make the crucial decision. I had 2 choices i.e. either informing the Judge that my opponent was not in the court and I wish to wait for him and requesting to stand the matter down again OR informing the court that I do not wish to wait for my opponent anymore and requesting for the case to be heard in his absence.
Fear rushed through my veins and my judgment was clouded by doubts.
Why?
I had promised to wait for my opponent till 11.00 am hadn’t I? If he was just merely 30 minutes late, can’t I just wait for him for a little longer? He might be stuck in a traffic jam!
But on the other hand, he was late, wasn’t he? I owed a duty of care to my client not to my opponent, agree? In the circumstances, what was the best for my client? Of course my client would be delighted if he knew that the matter was not postponed further and judgment was entered against the Defendant.
If I give chance to my learned opponent, I would win friendship but this matter might be postponed to another date and my client would suffer further delay.
If I decide otherwise, my learned opponent would curse me acrimoniously and label me as a man without honour but my client need not endure another round of delays.
I was only given a few seconds to make the decision.
(to be continued)
Interesting fact:
Was Paul Harris the first president of a Rotary club? No.
Was Paul Harris the first president of Rotary International? Yes.
posted by harnniann at 6:38 pm
9 Comments:
Dear Harniann,
Though I dont go to court that often but i think i know what kind of predicament you were put through at that instance.
If i am not mistaken, its against the ethics of the profession in choosing to go ahead of the case knowing the other party can't be able to make it for the hearing. Anyhow, I think its fair also to say that we need to act in the best interest of our clients which is to expedite the matter.
If I were put in the similar situation, perhaps the following will be my considerations:
1) Do I know the opposing counsel well?
If yes, i might ask the judge to stand down the matter to give him or her another 15-30 mins.
However in your situation, i think since he or she didnt even bother to call and give justifiable reasons as to his/her lateness, either he/she dont bother or you are not very close to him/her and this may seem to indicate that he/she may not even have your number. In this case, you have done what you can in giving him/her the leeway which he/she should not blame you on.
2)Whether my client case will be put into any predicaments?
Which in this case, very obvious if you choose to stand down the matter, the judge might postpone it and then your client's case will be delayed.
Anyhow, the above may just be some considerations that i might make.
To be frank, I think (should be lar..since I wasnt put into that situation, very hard to say for exact) I will probably tell the judge that the opposing counsel was not here yet but if possible to stand down the matter for another half an hour to wait for him/her but indicate clearly that i do not wish to postpone the matter. If the judge reluctant, then I will ask the judge to make an order as his lordship thinks fit and proper.
Cant wait for the continuation of part 2. Cant predict what you have done in that situation, perhaps you can teach me something about that? ;)
Cheers,
TRacy
what is the consequences if we proceed the hearing without defendant?
Tracy,
I could not agree with your first consideration i.e. "do I know the opponent well?"
I guess you have to agree with me that being a professional, the "friendship" or "relationship" you have with the opponent plays no part in discharging your duty to your client.
Hence, it should not be part of the consideration.
Engtee,
Consequence of hearing the case in your opponent's absence? I thought I have made it clear in the article?
"If I decide otherwise, my learned opponent would curse me acrimoniously and label me as a man without honour but my client need not endure another round of delays."
Both ways I still have to deal with my conscience.
Hmm, Harniann, if that the case ie (Quoting you)"I guess you have to agree with me that being a professional, the "friendship" or "relationship" you have with the opponent plays no part in discharging your duty to your client.
Then, isnt that contradicts with the quote below? Why are you taking into account the opponent's emotions or actions towards you? Why your conscience haunts you if you think that your client's interest is the only thing that you will ever consider???
(Quoting you)"If I decide otherwise, my learned opponent would curse me acrimoniously and label me as a man without honour but my client need not endure another round of delays."
From the Curious me,
Tracy
Your opponent can't blame you for the following reasons:-
1) he didn't have the courtesy to confirm the telephone conversation.
2) he didn't take down your mobile number or gave you his mobile number so that any emergencies can be sorted out.
3) if you start the hearing without him, you did not 'breach' the promise as you waited till 11.30am and it was his fault for not showing up.
Dear Tracy,
Exactly my point! The emotions of the opponent should be ignored when we make decision in our client's interest. That's why this article is named "Without Fear or Favour".
But we are normal human being too. Lawyers can't think and act like a robot right? That's why given the circumstances, one will likely to have doubts (especially the rookies like me).
Anonymous,
Would it make a difference if I tell you I have his handphone number but I did not call him to find out why he was late?
Dear Harnniann,
The first time i were in ur shoes, i had decided to stand down the matter to contact my opponent. If i could not reach the counsel in charge, i will leave message to his/her firm.
Then, when the case was called up again, i will leave it to the judge to make the necessary direction but of course, i will ask for costs in any event.
Actually, most of the judges are not keen in proceeding with trial or hearing with the absence of the other side even if u insisted so except that u can convince them that sufficient notice is given to the other side and that the other side has played the same tricks before.
If the judge had decided to proceed in my oppponent's absence, i will be much obliged to go ahead and quickly went back office to type a letter informing my opponent of the events taken place (not only for courtesy purpose but also to protect myself).
So if i had received the same request from my opponent now, i will ask for his/her mobile number just in case anything turns wrong. Will also let him/her be warned first that i may be forced to proceed if he cant made it on time. If that is not a last minute request, i would ask my opponent to write to court in advance as a sign of respect.
i always wanted to strike a balance between my duty to court, client and also to my learned fren if possible.
so, look forward to ur part 3.
with that, i had to prepare for my first criminal trial this afternoon.
regards,
siew yee
Dear Harniann,
I get what you mean. Look forward for the continuation...
cheers and good day,
Tracy
All said and done...please remember that your opponent is acting for the Defendant, the one who owes money to your client.
In keeping up with the legal "tradition" the Defendant's lawyers will use all the tricks up their sleeves to prolong and frustrate your clients legitimate claims. All in the name
of "protecting clients interest!!".
The feelings of trial and tribulations that runs through you when faced with such situations are a good natural process.
The system will spit out those not cut out for court work.
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