Prop Note

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Short Notes for Law Students taking Professional Practice or CLP

FACTORS DETERMINING MALAYSIAN ADVOCACY

What is advocacy?

-A merger of various skills that enable a lawyer to perform properly in ct.

-Knowing how to talk

-Using the right words, intonation, style,

-Ability to ask correct questions to get the answers u aim for,

-Ability to present argument in a way to persuade judge to agree with your version of the story.

-Being good in lang w/o knowing the style is useless. Vice versa

-T/4 it’s a merger.

i.e.: Presenting case, asking question, getting info from witnesses, making statements, arguments based on research & case laws.

1st factor: The Court

1 of the factors determining Msian advocacy: ct.

• The Court System (Adversarial System)

Our ct system is adversarial in nature.

Adversarial ct system:

A system whereby both contesting parties have a duty to present their case before a judge.

-Judge’s duty - to listen to both sides b4 making a decision.

-H/e, in listening to both sides, he has a right to enquire & clarify though it’s x his duty to ask questions.

-Judge x take an active role. Only listens & guides.

-X do his own investigations & questionings.

-H/e, he can seek clarification.

-Adversarial system - judge x get involved.

-Lawyer has to present everything b4 him.

-H/e, a judge is a human being.

-Some judges are forced to take part in order to ensure that justice is done if the lawyers are x good. -There are also opinionated judges who think they are the only ones who know what to do.

-A/t theoretically a judge is x supposed to ask questions, there are some judges who ask more questions than lawyers.

-There are also judges who will x do anything & only decide based on what you say.

-T/4 lawyers / judges / mag/ SAR - make sure know what the role & duty is.

-Lawyer - know facts of case, prepare correct doc, conduct proper research & present it eloquently to judge.

-Judge - listen to what is presented, write down & clarify.

Q: How does this help improve advocacy in Msia?

1. T/4 we cn create better lawyers.

-Adversarial system expects lawyers to present their case.

-Since a judge does x hv to participate, t/4 w/t like it / x, lawyers hv to be prepared.

-Hv to be persuasive to enable you to win your case.

-How? improve skill, enhance research & klg, learn the art of arguing properly b/c even if you hv good command of language but x do any research, how to argue your side of the story.

-It forces lawyers to be fully prepared & take the resp b/c if judge himself does the investigation & ask questions, there is no need for lawyers & the adversarial system. We should just go into inquisitorial system.

-The adversarial system pushes lawyers to be better.

-That’s y adversarial system impacts on the advocacy, the capabilities, skills.

-B/c if x improve skill & capability - will lose case.

-If x do research, arg will x be strong enough.

-If x read up case law & know the latest law - arg will x be able to stand.

Inquisitorial system

- system applied in most European countries. It’s the judges who ask questions. The lawyer’s task is to just prepare the case, statement, bring witness to ct, judge will ask witness questions. If judge x happy, will conduct his own investigation.

-Both systems intend on doing justice from diff angle.

-In msia - a/t we call our system adversarial, the way judges are doing things now - hybrid of 2 systems.

-Lawyers ask questions & judges ask their own set of questions.

-Sometimes cases are postponed to enable judges & parties involved to visit the crime scene.

-At the end of the day, as judges, when they want to write their decision, they x simply use the cases u give them. There are some judges who are lazy & only read the cases you give them. There are some judges, after hearing all cases & arguments, stood down the case for decision & they do their own reading, research so that they will be happy with the decision they made.

-Esp in mag / sar ct. When make decision, chances are 1 party will appeal. As members of judiciary, no judge wants his decision to be overturned. If mag / sar -wd be embarrassing to have many cases they decided overturned at appellate state.

T/4 they hv their own pride. want to be happy in their decision so that higher ct judge agrees w it.

T/4 the ct system has an impact on msia advocacy.

2nd factor: The Judge

-The judges themselves also determine Msian advocacy.

-Sometimes, judges like your style & the way you carry yourself & the way u present your case.

-Sometimes no matter how hard you try, the judge just doesn’t like you.

-Judges impact on your ability to present your case

-As lawyers, need to know who your judges are, how he wants things done etc.

eg: 1 judge wants you to use bolder print with larger font size.

A/t your doc is x wrong, if it makes it diff for him to read your doc, he’s x gonna decide in your favour.

Even if he’s gonna decide in favor of you, will make it diff for you, like asking lots of questions & interrupting you.

-In presenting case, if judge x like the way you present, don’t push.

eg: if judge say issue x relevant etc. don’t push. otherwise, he won’t listen to you.

eg: he wants you to speak slowly so that he cn write. if you keep speaking faster, he won’t listen.

-T4 need to know judge.

-You want judge to like you & be impressed with your performance.

-H/e, don’t take judge out for dinner, golf etc.

-It’s your skill, ability, arg that helps him like you.

3rd factor: Officer of the Court

eg: ct clerks, interpreters, file searchers

-They are imp people. Don’t look down on them otherwise they won’t call your file, find your file etc

-Be friends with them so that you life is easier.

-Same with police officer, pp etc..

-But don’t bribe / ask them to do things they shd x do.

-If know them & are friendly with them - they wd also impact your advocacy.

eg: know file searcher - will find file fast . t/4 cn continue with case.

if rude to him - won’t find your file - can’t go on.

4th factor: The Counsel

Counsels also impact on m sian advocacy.

• His duties

- to himself - maintain integrity

- profession - maintain professionalism.

- client -make sure his interest is protected.

- court - ensure justice is arrived at.

• His profession - professional integrity & independence

-This juggling of duties cn impact msian advocacy. -Sometimes we forget what our main duty is.

-Sometimes we are too eager to please our client that we forget there are certain things we can’t do. eg: hide info, lie, create evid etc just b/c we want to help our client.

-A lawyer’s duties to all the diff parties cn sometimes lead him astray & destroy the effort he has made to improve his advocacy skills & msian advocacy as a whole.

-To decide which duty comes 1st, what is the most imp duty is x easy. You want to defend client & protect his interest but at same time want to ensure justice is arrived at.

-If client is innocent, t/4 you’re fighting for justice & client.

-If client is guilty - prob. If he refuses to plead guilty & want u to defend him & get him out of trouble - then u may be denying justice.

-T/4 the role & duty to self, profession, client, ct - hv to balance properly so that u x transgress & do something x allowed.

-No specific way. But if you x go vs client’s instruction & x lie to ct - then u wd hv successfully  maintained your integrity, professionalism & at end of the day, w/e the ct decides, u hv tried ur best the right way.

-U hv the right to advice client b4 commencing proceeding & b4 taking up defence.

eg: he has committed offence. need to plead guilty etc.. as long as hv told client the truth & if he still x want to listen to your advice - then it’s out of your hands.

8 lamps of Advocacy

Honesty

Courage

Wit         -to remain alert and observant; be prepared for anything

Eloquent-having or exercising the power of fluent, forceful, and appropriate speech

Tact        - skill in dealing with difficult or delicate situations.

Industry

Judgment

Fellowship

RETAINER

What is the meaning of retainer?

A contractual relationship between a solicitor and his client, in return for proper remuneration, the solicitor provides legal services to the client.

Can a minor retain a lawyer?

No because generally retainer involves capacity to enter into contract, which a minor is not able to enter into contract. However, a minor can do so through guardian ad litem

Can a lawyer refuse to be retained? Why?

Yes, there are several good reasons for a lawyer to refuse:

1. Where the client instructs (expressly / impliedly) to carry out an unlawful act
2. If retainer exists, there will be conflict of interest
3. There may be breakdown of relationship of confidence & trust
4. Where there may be possibility that the client fails to pay his legal fees.

How many types of retainers are there?

There are 2 types of retainer:

1. Express retainer
   1. Written retainer – existence of written retainer avoids misunderstanding
   2. Oral retainer – it can be orally agreed to retain a lawyer
   3. Implied retainer

The court may imply a retainer for the facts of the case

Are rights of an accused person in criminal case the same as the rights of a defendant in civil case with regard to appointment of a retainer? Why?

The right of accused person to appoint a retainer is different than civil. The right to appoint a lawyer may be delayed by the police. This is because the presence of a lawyer during interrogation may interrupt the interrogation. However, the police needs to justify the reason for the delay to avoid being sued for violating accused person’s constitutional rights.

Under what circumstances it would be considered as “an interference with retainer”?

1. When the lawyer acts for 2 parties in the same matter
2. When the solicitor or his firm act for 1 client and another client in different matter but their interests conflict.
3. When the client instructs that he wants the lawyer to deal with his matter, but the lawyer asked his assistant to deal with the matter.

What would be the effect if there is an interference with a retainer?

There may be a conflict of interest.

Can a client terminate a retainer?

Yes, upon conclusion of the matter.

What needs to be done before withdrawal or termination of retainer?

Solicitor will inform the client about how much to be paid and bill the client.

PREPARATION FOR TRIAL

Personal preparation

• Knowledge of fact

You need to know facts of case at tip of fingertips. So, conduct your own interview. Lawyers need to know whole story. When you know the facts well, it will give you idea on how to come up with arguments.

• Knowledge of law

When you know facts, you will know what area of law involved in your client’s case. Then, you need to do research on that area of law

• Knowledge of procedure

There are different court structures. Different courts involve different procedures. So you need to know procedures involved in dealing with the case. Where procedures are correctly followed, it will make the judge’s job easy. Judge is also a human and when you make him feel good, he will help you. When procedures are followed, it will make it easier to move to your arguments on points of law.

• Legal Research

Research must be done personally and thoroughly. When research is well done, you will feel more confident in your argument. This will strengthen your knowledge of law and you will know how to suit it with facts of your case.

• Preparation of course papers - civil litigation. (Bundles of Documents, Pleadings & Authorities)

Criminal cases do not have many documents. Only FIR, IO report (if any) charge sheet (if any). other relevant reports if any lawyers acting for @ x even hv to file a stmt of def. if x want to file notification that you hv been engaged to represent @, just go to ct on that day & stand up inform ct that you are representing the @.

Civil matters - lots of documents have to be prepared.

1st document you have to prepare is notice of demand.

2nd. - if not comply with notice of demand- issue summons, SOC.

if high ct - soc hs to come writ of summons

if lower ct - soc comes on its own.

3rd - affidavit of service

Summons has to be served. So other side knows that summons has been filed

4th – Defendant must enter appearance & file SOD.

If Plaintiff has no good case, normally file summary judgment

Courts like things all structured & in order.

They will then ask you to prepare bundles.

Bundles in court:

1) bundles of pleadings

This includes SOC & SOD

O18  ROHC - pleadings

-x mention about affidavit

affidavit - set of facts prepared by parties involved to support their application & x the claim itself.

Therefore, affidavit is x a pleading & x included in bundle of pleadings

2) bundles of docs

med reports - claim w regard to accident.

agmt - claim for ctt

land title - claim for land matters

will - claim under probate / w regard to issuance of probate

many kinds of docs.

these docs are doc evid.

if ptf - to prove case

dft - to disprove case

ptf hs set of docs. dft hv sets of docs.

2 ways of preparing bundles of docs.

nice lawyers wd share docs. ptf wd send their docs to dft & ask if dft agree if they refer to the docs.

dft then send their docs to ptf & ask if ptf object

wd come to consensus whereby the 1st set of doc - agreed bundle of docs. sometimes there are docs which u x agree - wd be suicidal to your case to agree - non agreed bundles.

sometimes, there are categories of docs where u agree docs exist but x satisfied w content. t/4 u hv a 3rd category - agreed to doc but subj to maker being called

eg: agree the med report exist but want to call doc to ask about extent of injury.

u agree there is injury. but x satisfied w written report.

b/c agreed bundles of doc - if both parties agree, u dispense w need to call the maker.

t/4 usually in morning of hearing, lawyers go early & at that time agree on certain docs.

prob b/c sometimes lawyers need to consult w client.

t/4 best to do early.

Bundle of authorities

Case laws that u want to refer in hearing.

Sometimes u will find lawyers putting in copies of statutes / sections relevant to hearing.

However, chapters of books / extracts of journals are only persuasive authorities. Judges are not bound to follow opinion of authors.

Witness

• Lists
• Interview
• Advice on procedures

Need to know facts because need to prepare in mind the plan as to how you’re going to conduct your prosecution.

If you are acting for defendant - need to plan how to defend client.

Witnesses - no 1 type of witnesses. Some can withstand a lot of questioning. Some tend to be forgetful.

Once you have their story, their stmt, prepare a written stmt because you can’t depend on your memory, mistake may happen.

Some lawyers would say that you need to get your witness to read the witness stmt b/c just in case he changes his story in ct. with the stmt he has signed, u can impeach your witness.

However, our attempt is x to destroy his reputation but to prove our case. Need to be nice to our witness. Don’t destroy your own witness.

Once you have the story & witnesses has been identified, you need to have a list of what elements to be proven, which’s to be called to prove the elements.

Once hv list of witnesses, also need to advice witness on what the procedure is like. Need to make them confident & comfortable with the idea of being in court. need to make them feel they are safe in your hands.

Some witnesses - no matter what you say, no matter how important he is / how crucial his testimony is, some refuse to go to court.

So, Subpoena can be issued to summon the witness requiring their attendance.

if subpoena issued & served on witness , he has to attend. If he fails to attend, he would have committed contempt

Therefore it forces witness to go to ct whether he likes it or not

h/e, sometimes, it can do more harm than good. Especially when you have a witness who refuse to cooperate.

eg: he can say he forgot about the accident.

t/4 hv to be careful. try your best to persuade wtns to come willingly. if hv no choice but to issue subpoena - be careful about it.

service of subpoena can be done by the ct. can get the help of police officers / own clerk / yourself to serve.

Witness is x bound by law to help. Can refuse to help / say x know / x see anything.

if hv no choice - last resort = impeaching your witness.

h/e, your aim is x to destroy his character / credibility.

ur aim is to prove your case.

but if hv no other choice, when put him on stand, he x support your case.

if can’t correct wrong caused by hostile witness - no other choice but to impeach.

• Negotiation and Settlement

Nowadays more lawyers are avoiding hearings.

They go for ‘win-win situation’.

Some lawyers ask client 1st whether he wants lawyer to negotiate for a settlement.

Some go into negotiation 1st & once have initial offer, only then will go to client & ask w/t accept settlement / x.

vice versa. If he wants to go for hearing although he may x get as much after winning the case, the problem may still not be settled.

CASE PRESENTATION

Presentation of the case

You should come early to court. It makes you relax & not in rush. Also, you may do a last minute negotiations with the other lawyer (can still record settlement as long as judge x make decision. By coming early to ct- allow you to make last minute negotiations before trial itself)

When you stand up for your case, if acting for plaintiff, need to 1st introduce yourself, whether as lawyer for ptf / chambering student.

it’s professionally ethically correct for you to intro counsel for other side.

It’s best to go to ct early, intro yourself, find out their name even if settlement can’t be reached you’d at least hv the name.

it shows you have proper ethics, shows that you hv a mindset of a professional to intro counsel for other side.

if u x intro them, it’s left to the solicitor to introduce himself. This is unprofessional.

if you’re solicitor for dft & you hv already been introduced by ptf, DON’T intro the other side.

In presenting your case in ct, there are times when judge will ask you questions.

So, answer the questions.

if hv script -may miss some points when judge interrupt.

Don’t expect judge to wait for you to get to the point. Answer his question straightaway regardless w/t you hv x reach that point in y our submission yet.

prob: hvg scripts.

you’d be religiously reading script.

when judge ask qstn. u’ll lose track of where you were.

So, try to stop hvg script. If too dependent on script might get in trouble.

also when in script - judge is up there.

you’re hiding your face among the pages.

look at judge. eye contact is very important.

it’s easier for a person to gauge your demeanor & ascertain w/t you’re telling the truth if there’s eye contact.

Therefore having a script will x help you if you’re too engrossed in content of script.

t/4 hv point form.

don’t let the script run the way you conduct your case.

in presenting the case to ct, only 1 lawyer stand at any one time. If it’s ptf’s turn, ptf stands.

If you are submitting, the judge asks question to defendant’s lawyer, you have to sit down & defendant’s lawyer has to stand & answer the question

At all times, when presenting case b4 ct, maintain your posture.

Don’t put hands in pants pocket because it is an extreme sign of rudeness

The most you can do for a while is put in coat pocket.

Grip the podium, table, book etc.

Court attendance

• Time / punctuality

Be punctual

If late, but interpreter nice & likes you, he will x call your case 1st. He will wait for you to come in court room before call case.

Worst case scenario is when interpreter x like you & you are not around when he calls your case. The worse that could happen is the judge could order summary judgment or strike off your claim.

If you’re lucky - interpreter likes you / judge allows case to be stood down / case be postponed.

even if case postponed - x nice because you’ve spent 1 week preparing case etc. if postponed for 4 months - you can’t remember & will have to prepare again. It’s a waste energy & time.

if witnesses from overseas & hv paid them airfare & allowance to come. but b/c you’re late, case postponed. Witneses x going to refund their money. You have to pay for their expenses.

Conduct in court

• Attire

You must be properly attired in court = following requirements.

Guideline issued by Malaysian bar with regard to attire.

When properly attired, u feel confident.

Your client will also be confident of you

h/e, x all judges are tolerant with mismatched attire.

some judges will tell you in private your mistake but some will just embarrass you in ct.

to be called up & corrected b/c you’re x properly attired is embarrassing.

even after your case is stood down & you’ve changed clothes - u can’t perform properly later. You will lose confidence

• Address

You should know how to address the court. Diff ways to address the ct.

how to address

mag: tuan magistate

sessions ct judge - tuan hakim

high ct judge - yang arif

appellate ct judge - yang amat arif

SAR (tuan/penolong kanan pendaftar) - tuan / puan

never try to be over polite by saying YA tuan magistrate.

u think u’re being nice & respectful.

it’s like you’re equating the high ct judge w mag / sessions ct judge. it’s an insult. They’re x the same level.

in addresting ct, hv to intro yourself.

intro of chambering student:

“Dengan izin tuan mag, saya Mahyuddin bin Daud, pelatih dlm kamar di firma tetuan Mahyuddin, Norlaili & Associates menyebut bagi pihak…..”

Remember, as a chambee, you are only mentioning on behalf of your master, not representing the client. S 36(2) LPA provides limited right of audience to appear in ct to do certain things on behalf of firm / master.

Thus, if 1st timer in court, prepare a script.

When you hv script - do x hold it up. b/c when you’re scared, your scrip will shake.

put it on table.

if hand shaking - gentleman - never put hand in pocket - absolute sign of rudeness.

don’t put hand in coat pocket.

just hold on to bar table & put hand down.

Bar table big enough x to shake & at same time says you’re confident.

• Attitude towards the court

Be respectful to judge. Even if you know him outside ct. You’re x respecting the person him but to the bench, the establishment he represents.

When u disagree w judge - “I beg to differ”

When want to express opinion which is diff from judge - hv to ask his permission

“I beg to differ - YA, izinkan saya nyatakan bahawa pandangan saya berbeza dengan pandangan YA.”

Never show that you’re upset / show your anger. Don’t stand up & voice your adverse opinion to judge. It may amount to contempt of ct.

• Adjournment

Adjournment / postponement. It is different from stand down.

Having a case stood down - hvg case postponed for a few hours on same day. ie: postpone case to same day diff hour.

or stand down the case.

Sometimes when hv a lot of cts to go to, ask this ct to stand down case 1st b/c u hv case in high ct.

then go to high ct. Therefore your case  will be called later in the day.

adjournment / postponement

postponing case to anor day.

Postponement is x advisable. it’s x encouraged.

Rule says u ought to be ready on date of hearing.

Rule says if u already hv case, x supposed to take any other cases.

But there are times when u hv no choice. sometimes, esp in high ct, they will x listen to you.

eg: u hv case fixed today but judge hv somewhere to go t/4 they issue u a letter saying that the case is  postponenment to anor date. ie fix a date for you w/o gvg u a chance to say you hv already hv anor case on that day. without asking you

DON’T ASSUME YOU’RE GONNA GET POSTPONEMENT

don’t get anor lawyer from anor law firm to mention on your behalf. Client might x agree. Confidentiality issues

also, mentioning on behalf - lawyers normally don’t hv the file.

“YA, saya menyebut bagi pihak tetuan xxx kes untuk perbicaraan. saya diarah untuk memohon penangguhan.”

if judge x agree, will ask case to proceed.

the lawyer x know what the case is all about. But judge now deems him the lawyer in charge.

Therefore never assume postponement will be granted.

In situation where you need to ask for P, ct req that you send at least a letter 7 days b4 hearing itself.

write in & request for postponement.

ct might consider if u hv anor case.

if death / sickness - x know in advance u will be sick / dead on that day. It’s something you ask on the spot.

e.g.: client hospitalized will be good excuse.

but some judge will proceed with other witness 1st

but normally, it’s ill health, being warded is a good excuse.

being sick is something that will necessitate you going to ct / sending a friend on that day & saying u need postponement b/c lawyer in charge is sick.

However, some judges require MC from government hospitals.

So, you need to know your judge. Don’t just ask postponement for no good reason.

TRIAL PROCEDURE

• Civil and criminal trial

-basic difference

1. Civil

Cases between private individual & does not involve State unless state is a party to it

- civil modes of commencement= writ of summons, SOC etc.

1. Criminal

-btwn state n indv= the aggrieved person doesn’t charge d accused themselves, but they make a police report.

-State commence d action for/or on behalf of the party= governed by CPC

• Opening statements

-it’s not about introducing counsel because this is opening address.

-Opening statement is u set up d road map/ plan.

Plan= with regard to introducing evidence (what u intend to prove)

Why do u hv opening statement? To have d judge interested in hearing d case.

- opening statement must be attention grabbing, judge will listen to u better if its interesting.

• Preliminary objections

- meant to settle issues for e.g. competency of d judge, jurisdiction of the court.

- is this d same as objection?

Preliminary objection is before trial, objection is during trial.

Eg: objection on misleading, irrelevant, opinion question, speculation.

Misleading= u ask a question which leads to yes or no answer

Irrelevant= if this has been raise, u ask for permission/ opportunity for the judge to allow u to ask this ques in order to build a case. And the ques is necessary. Explain to d judge on the relevancy of the ques

Opinion ques= question which needs an opinion of the witness, and that witness is not an expert so he is of no position to give opinion

During objection, u should “half stand”, because only 1 lawyer should stand when addressing the judge.

• Examinations-in-chief;

Leading ques is not allowed in examination. Can’t ask our own witness leading ques, but u can ask leading ques during cross examination.

• cross-examination;

U attack the credibility of witness. Sometimes defence counsel wud start d cross to tarnish d reputation to witnesss by being nice. Defence wud be friendly, so witness will be relax, then once u ask a q which will tarnish d witness, then the witness will straight away be panic.

• Re-examination.

Its d last chance to correct whatever wrong done thru d cross exam.

It is best for u to tell tge witness what will happen at cross exam. U caution d witness. Caution him not to panic.

Documentary Evidence

• Duty not to mislead

• Closing statement (submission)

-The chance gvn to solic (ptf/dft) to conclude the hearing.

(after all W called, evid tendered, every1 hs been heard).

-It’s 1 last chance for solicitor to summarize everything that has been put forward before the ct to enable them to persuade the ct to agree w their side of the story.

Submission cn be done orally / in writing.

Depends on the judges & to a certain extent, the preference of the lawyer themselves.

Senior lawyers - prefer oral submissions - once hearing finishes, the counsel stands up to do submissions straightaway. Off the cuff based on their memory, short notes w/o any written text.

Junior lawyers - prefer written submissions - b/c

i. confidence

ii.  command of the language

iii.  klg of the law.

Written submission

When the case is finished, court will allow time for lawyer to go back & prepare written submission in a month’s time.

Therefore you have time to read notes again, check everything said by W, re-read authorities, re-think how want to draft argument in submission to make sense.

once drafted, can check for errors, so that flow, lang, arg = correct.

=plus points

h/e, since hv been gvn time, the other side will also be gvn time. they cn check on the facts, re-read on the law, check on the drafts.

oral submission

Stand up & do it. once it’s done, over & done with.

But if command of lang x good, might come out wrongly & say things u x mean to say.

Formation of sentences hs to be good.

Also, u might hv misread the authorities.

plus point - if hv good point, hv identified certain flaws in other side’s case, u stand up & say it & he might x hv time to recover. to cover all the discrepancies he hs made in the hearing.

if written - wd be thinking about it all the time.

writing a written submission is x easy.

prob w written submission

- u hv many cases, t/4 in mind, few cases playing around. Few cases that u hv to prepare written submission.

if you’re the kind that writes everything down properly, can refer to notes & be confident in what the note says.

if you’re the type of lawyer who speaks of the cuff & no notes, sometimes, u may confuse the cases.

Judge has everything down in his notes of proceedings. When u raise issues not stated in your written argument, judge will not consider it.

• Judgment [taken direct from Shazana’s notes]

Types of j/m

i. judgment in default

ii. summary j/m

iii. final j/m

iv. consent j/m

judgment of default

2 types

1. j/m in default of appearance

if dft fails to file an appearance / notice of appearance

Nasha aziz case - has filed appearance. lawyer hs filed stmt of def but on hearing date, she did x turn up t/4 ct issued j/m in default of appearance.

2. j/m in default of defence

dft fails to file statement of defence

summary j/m

a defence hs to be filed but the ptf in reading the statement of def feels that there is no defence. x a def worth going for full hearing. sham defence

t/4 file interlocutory application in form of SIC supported by affidavit.

cn also get j/m if prove it’s a sham defence.

j/m by consent

when both parties agree to terms of j/m.

by consent, u record the j/m agreeable to both parties.

j/m after final hearing

after judge hs heard both sides & considered all evid & arguments.

in hearing, if dft fails to turn up, j/m in default cn be gvn.

if he’s x happy w it, cn set aside the j/m.

he can’t appeal vs JID b/c no hearing, no notes of evid, no proceeding.

can’t ask for judicial review after JID b/c nothing to review. only after at least hearing hs been done. judicial review - u ask anor judge to hv a look at the case again & to come at a diff decision.

can’t appeal b/c JID is gvn b/c

i. x turn up

ii. no defence

t/4 what is there to appeal vs.

ptf if x turn up in ct - claim cn be struck off.

can’t set aside. but apply for reinstatement.

or when reinstatement is disallowed by ct, hv to quickly file anor statement of claim.

will get anor set of case no, t/4 must gv excuse to client y case no hs changed.

cn say that ct hs added more cts & reshuffled the case numbers.

the law = j/m hs to be pronounced.

the j/m hs to be announced in ct / read in ct.

if the judge, after reading everything, & prepare j/m falls sick / transferred & can’t come on day of decision / dies.

the j/m can be pronounced by some1 else. cd be by anor judge / registrar of HC.

if judge x hv time to prepare j/m & dies,

judge replacing cn choose to read the records of evid & derives a j/m from whatever is there. but sometimes the notes taken by the judge is x complete, t/4 he has a right to recall certain W to clarify matters. (also, judge may x write the demeanor etc.)

he also hs a right to declare the case de novo & start again. - x good.

the best is to recall certain key W & rehear certain evid.

j/m hs to be pronounced.

x hv to be the person making the decision pronouncing the j/m.

if x happy with j/m cn set aside if JID.

can appeal if after final hearing.

Q: what date goes on the j/m?

the date it’s pronounced but ct cn order anor date to be used. (O.42? RHC / in sub ct rules)

• Appeal

O.55 & 56 of RHC

cn appeal to higher ct if x happy w decision.

from mag & session - to HC.

can’t appeal from from mag to sess b/c sess ct hs no appellate jurisd.

if case heard b4 SAR (in HC) & u’re x happy w his decision - appeal to HC judge in chambers.

only if x happy w decision of HC judge in chambers - can request for an appeal to be heard in open ct.

look at various orders to see time limit, what docs hv to prepare.

but basically, often the prob lawyers hv is x with the notice of appeal. but prob with grounds of j/m. b/c judges hv habit of pronouncing j/m w/o preparing grounds of j/m.

if to COA / Fed ct - be prepared.

junior lawyers seldom appeal there. highest - HC.

b/c judges know law at their fingertip & it’s in English.

CONTEMPT OF COURT

• What is contempt?

Offence of being disobedient / disrespectful to the ct of law / to its officers.

judge gvn power & hs jurisd to cite lawyers for contempt.

if up to judge - where to draw the line? what’s the guideline?

guideline to show an action / disobedience is contemptuous

criteria judge uses - if interferes with the administration of justice, you cd be in contempt.

prob: no law to say what is contempt.

It depends on the judge.

t/4 contempt - the law says ct hs jurisd. judge hs power to cite someone for contempt.

if otr party involved in proceeding feels that some1 in the proceeding is contemptuous, he could apply by way of motion for that person to be cited for contempt by the judge even if the judge x cite / x incline to cite the person for contempt.

e.g.: lawyer quarreling with judge. Lawyer has set of questions to ask witness & judge says its x relevant.

However, you might have a good reason. So, politely say “I beg to differ YA. I understand from your point of view it might appear as irrelevant but please bear with me. Please allow me to ask this question & you will see that once the answer is given, it will unveil its relevancy.”

This sway, you’re still telling the judge that u know what you’re doing, but in a polite way. So, it is not contemptuous.

• What are the types of contempt?

• criminal contempt
• civil contempt

Civil contempt

-Failure to apply w ct’s order.

If interferes with administration of justice, you may commit contempt

Criminal contempt

3 categories:

i. contempt in the face of the court.

Most prevalent contemptuous act b/c it’s contemptuous action that takes place during proceedings when the ct is in proceeding. When u’re in ct room.

certain acts / omission / behaviors / words were uttered that could put in certain position for contempt in the fact of the ct.

ii.  subjudice comments

Comment made before judgment has been reached. Especially if it’s publicized. cd affect the proper deliverance of justice.

The test is whether the comment tends to interfere with due course of justice

iii. Comments to scandalise the ct or the judge in his judicial capacity.

e.g.: make scandalous comment about how bald the judge is, may be contemptuous but won’t fall under this category b/c no matter how scandalous comment is, it’s x in his judicial capacity.

but if say that the judge x know the law & needs to go back to law school, that is contemptuous.

Scandalous comments depends on 2 things:

i. language - words used / uttered

ii. actions - cd be your facial expression, body language.

What are the procedures regarding contempt?

Whoever being cited for contempt has the right to know the nature of his contempt.

O.52 RHC

in contempt proceedings, there is 1st the right to be heard. The contemptnor will be given a right to explain his action

Depending on w/t judge feels explanation is acceptable / x after hearing it, if he accepts, everything over & done w. if x accept, 2nd element = right to purge the contempt.

Purge - tender an unreserved apology.

The contemptnor - if judge x happy w his explanation hs to be gvn the right to purge

if fail to purge the contempt - judge hs right to send you to prison.

- to be cited for contempt is x good for professional image. Adverse opinion may be formed of you.

Someone else beside a judge can cite a person for contempt. How?

i. apply for ct’s permission for you (a layperson) to cite someone for contempt by way of ex parte application supported by an affidavit.  the affidavit shd state the name & description of application, name, description, address of contempnor & grounds of application. it hs to be supported by verified facts.

only when hv leave from ct cn u apply for contempt proceeding thru a notice of motion.

once hv permission from ct, only hs 14 days to file his motion in ct.

if fail to file w/in 14 days from day which ct gv permission, the leave lapse.

What is the position of a judge that misbehaves?

Unfortunately, in our RHC, LPA - no procedure that lays down ways for lawyers dissatisfied with judge to cite a judge for contempt.

eg: judge keep interfering. say all qstn irrelevant. lawyers allowed to ask for him to put it on record in notes of proceeding the fact that you’re objecting his behavior, his interruption.

There’s a way where u can complain against a misbehaving judge. The judiciary has a bureau / dept that deals w misbehaving judges.  u write your complaint, gv reasons & justifications & notes of proceedings where u insist he writes & it can be used as proof

possible conseq: if he’s a judicial commissioner - won’t be confirmed as a HC judge.

if he’s a sub ct judge - will be sent to ‘cold storage’ - sent to drafting dept / sent to Kelantan / Sbh & Swk.

members of profession hv no right to cite a judge for contempt.

PROFESSIONAL NEGLIGENCE IN CONVEYANCING

It is a failure by a professional to exercise care & skill of a professional level expected of a professional.

e.g.: you were asked to do something but x do it

Person who relied on your professional capability has suffered a loss.

Thus, there may be issues raised such as:

i. issue of professionalism

ii. question of reliance - person relied on you as  a professional

iii. Damage - loss / phys inju suffered / tainted reputation

Profesional negligence in conveyancing

negligence hs a lot to do w duties as lawyers.

You owe duties to:

i. client

(main duty b/c pay legal fees)

ii. other party (to certain extent)

- a/t supposed to hv a lawyer to protect their interest, we also owe them a duty to a certain extent.

iii. profession

Duties of lawyer in conveyancing

1.  Interviewing client

- conduct interview to get info, instructions

conduct relevant searches

-land office, bankruptcy office, registrar of co office, registration office,advise client w regard to situation

-w/t advisable / x to proceed

-what they hv to do 1st b4 proceed

-correspondence

-writing letters

-prepare / draft docs & vetting docs

- signing, stamping, registration,

-fees

-undertaking

-money hold on trust on behalf of client

S.117(4) LPA

a/t u might enter into an agreement w client to exclude your liability for negligence, that is void & ineffective.

t/4 u can’t deny / exclude your client’s right to sue you if you happen to be professionally negligent.  even if he agrees.

R. 2 SRO

remuneration etc - solic’s right.

right always come hand in hand w duty

r. 5

allowed to charge interest on top of legal fees if p/m made late

-also a right

r.6

no discount

- duty to client & to profession. uphold dignity of profession

r. 7

can’t act for more than 1 party

-duty to client & profession.

Things that could go wrong:

1. in interviewing

- client says 1 thing, lawyer understands something else.

-client says 1 thing, lawyer writes down somethign else

- client talks to clerk. clerk writes whatever he understands. He gives it to lawyer who never sees client.

that’s y when talk to client, ask for name, add, IC, IDT, S&P, Deed of assignment, so that u can countercheck spelling, pronunciation.

Even if you interview & if u take & act on instructions wrongly, if client depends on your instruction

eg: client says 1 lot no, but u wrote down anor.

u conduct search on wrong lot & find out belongs to some1 else & tell client don’t buy b/c vendor is a liar. client depends on your advise & refuse to buy.

2. Conduct searches

1984 1 MLJ 126

-lawyer found to be in negligence b/c hd she conducted a search, wd find out that the prop client wants to buy is subj to acquisition.

H: failure of lawyer to conduct a search is negligence. L hs to pay compensation to client for loss suffered.

if take instruction wrongly & search on wrong prop.  if search wrongly at bankruptcy office (get wrong IC number). u search & find the vendor is x a bankrupt but he actually is. client will suffer a loss

3. Give legal advise

search hs to be proper, results obtained, law up to date b/c advising your client is 1 of the strongest ground for client to sue for negligence.

clients are x professionals & depend on you. they trust you.

eg: Chinese wants to buy prop from w/in Malay reserved area.

u advise client to set up co & co cn buy

this is wrong advise b/c co is x a malay. it hs to go & apply to land office to be gazetted as a mally

shd just advise client to get vendor to apply to sell to non malay - cheaper & faster & easier.

if client hd set up co & spent $ & if application to be a malay co denied

client hd relied & acted on your advise & suffered loss.

3. Drafting of documents

Lawyer who x cover all bases

eg: malay selling to non malay  -no clause to protect w/t consent required etc

eg: default clauses - in event purchaser fails to pay, vendor cn forfeit deposit but no default clause for vendor.

- if clause x protect client’s interest

4. Signing, registration of docs

eg:

-lawyer fails to sign agmt

-fails to explain t&c of agmt prior to signing

-lawyer signing on behalf of client - prof neg & also crim charge - forgery

-lawyer allowing doc to be signed somewhere else

-attesting doc that hs already been signed

(what if person who signed is x a person who’s supposed to sign)

-late stamping - pay penalty - 4x

-registration of discharge & transfer - prop discharge transfer x done.

-docs all with you. only went to land office w discharge form. forgot transfer & charge. caveat entered in b/w.

5. Undertaking (written promise)

breach of promise cn create liability for lawyers. cd cause you to be cited for contempt

eg: issue undertaking x to use doc & u use it, when u issue undertaking to say u will x let other ppl know the content of the agmt & u let them know -contempt.

issue undertaking to undertaking something & x do so- breach of duty. client cd sue you for negligence - cn report u to disciplinary bar - disciplinary proceeding.

6. Holding money on behalf of client

-if misappropriating the funds - CBT, disciplinary charges, etc but x prof neg

- x prof neg

-prof neg - failing to follow client’s instructin w regard to use of $

-client’s instruction to hold retention sum for 18 months b/c of defect liability period. but lawyer released the $ to developer after 6 mths = breaching client’s instruction.

-relesaed installment payment to developer / contractor w/o getting cert from engineer to say that percentage of completion hs reached certain stage.

Negligence in court

-for as long as you do your duty (try your best), even if you lose - they can’t sue you for negligence.

About the Author

Final Year Law Student, International Islamic University Malaysia

If you could replace Sue Johanson on "Talk Sex with Sue Johanson" what would you talk about?

The show is yours for a complete hour to talk about whatever you want. Your getting paid and if they like you, they will can her, and give you the job. Everything you can imagine as a prop is at your finger tips (lube, toys, dolls, devices, etc.).

I would talk about squirting of course

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