Litigation – the Practicalities of Going to Court? Part II

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Continuation from http://samchoong.com/2018/08/13/litigation-practicalities-going-court-part/

 

2) So who do you appoint? How do you choose a lawyer? Do you pick the firm or do you pick the lawyer?

People watch dramatic TV court scenes of an erudite lawyer aggressively questioning a witness or the defendant. This may give the impression that a good lawyer is an aggressive one. Sometimes, it may be better to have a lawyer who is more measured in his response and questioning; one whom listens and looks out for spoken and unspoken indicators rather than to be engrossed only in high drama and yet miss the important clues or subtle nuances.

 Like everyone, lawyers have differing personalities and distinct styles of working. When appointing your lawyer, here are some traits to consider:

 

a) Some lawyers are more suited to advising larger companies. They are legalistic in their advice and expect you to understand the set of options presented. This style is suitable if you are able to grasp legal concepts or are an MNC with an experienced internal legal counsel to decipher advice from your lawyer AND advise on the pros and cons of the lawyer’s recommendations. These lawyers are quick and expect you to work according to their rhythm. They’ll use legal terms in their explanation and expect you to grasp these with minimal explanation. They are great litigators and bright but bright people may not necessarily be good teachers. Clients who are well versed in the law or are used to litigation are suited to such lawyers;

b) Some lawyers update you only when they think it is necessary. These litigators are suited to clients who know their lawyer’s style well and fully trust their judgement and are familiar with the litigation process or are big picture people and are less interested in the details;

c) Others prefer to communicate and see you as a partner and will take time to explain in lay terms to make sure you understand. These guys are good lawyers but are also able to explain their points clearly when they sense clients are not in complete comprehension. The downside of this is the process may take longer and time costs tend to go up.

 

As for whether to select a lawyer or the firm, although there are advantages of working with a well-known and sizeable firm (an extensive library and strong research team to name a few), if you’re the type of personality that needs more attention (and likely to choose the paragraph 2(c) lawyer above, it would be advisable to choose the lawyer as opposed to the firm. As convenient as it might be to pick a well-known firm and consider your job done, you may, however, be allocated a lawyer who doesn’t complement your needs. Or you may appoint a lawyer you like but most of the work could end up being carried out by an assistant lawyer. However, if you approach the appointment of your legal team from the choice of lawyer, then you could specify whom you wish to do the work.

 

In your appointment of a lawyer, don’t write off boutique size or “one man” firms (where the law firm is made up of one lawyer and possibly an assistant lawyer) as there are some formidable close-knit and hands-on boutique litigation firms in the industry. Moreover with a “one man” firm you may well have the undivided attention of the lawyer. Naturally, more research needs to be done by you to identify the “right” lawyer but the smooth flow of communication and the dynamic of a close client-lawyer partnership would make this worthwhile as the trial goes on.

 

One scenario which can ensure the process has an added layer of safeguards is to hire a second team of lawyers, namely solicitors. These lawyers can act as your intermediate clearinghouse to ensure that all information going in and out is salient and will serve to boost your case or expedite a resolution.   Solicitors may be worth their weight in gold because they can be instrumental in substantial savings if they can settle the matter quickly or find alternative means of resolving the matter.

 

Solicitors: your clearinghouse and counsellor in one

Some clients prefer to have an intermediary lawyer to provide some interface between them and the litigation boys and as an extra pair of eyes and ears (to look out for an opportunity for settlement and explore other means of resolving the matter). This two-lawyer model is similar to the barrister-solicitor system practiced in split profession jurisdictions like the UK. In such a system, the solicitor is usually someone known and trusted by the client and he is the first point of contact at the first sign of “trouble”. He assesses the issues and, if necessary (He can make the critical call as to whether going to court is the best solution. This is critical as this decision may impact your life for the next few years), appoints the appropriate barrister (lawyer who specialises in court work or a specific area of court work) to argue the matter in court.

 

Another argument for having a second legal team with a more objective position (more conducive to reconciliation) is for this team to look at other options such as settlement or mediation whilst the litigation team focuses on the battle. It may be easier for someone with a neutral disposition to reconcile as opposed to the adversarial stance of the court lawyer. In court, as in negotiations, such “good cop, bad cop” partnerships may work wonders. The settlement option should not be discounted even if it was rejected at the beginning. It can still be explored mid-way to prevent the dispute from escalating through the various stages such as at the High Court, Court of Appeal and Federal Court.

 

Finally, a solicitor who is familiar with the client may also be familiar with the facts of the case. If you have access to such solicitors, they may be able to assist the client gather (as mentioned above in paragraph 1 above) all the relevant facts. If left unguided and under the extremes of litigation, the client who doesn’t know what is legally relevant may overwhelm the litigation lawyer by throwing all the facts (whether relevant or not) at him.

 

Litigation can be fast-paced. In addition to conventional email there are now many other communication modes such as WhatsApp, Wechat, Line, Kakao and the list goes on. So there could be a deluge of information exchanges, and vital information may be overlooked. A solicitor can act as an interface as well as an assistant to keep the information and process on track. Because of the higher cost, this model may not suit everyone. Such a relationship suits clients who are in business and see value in having a third party deal with the details (not to mention shielding such clients from the negative energy) of the litigation process while they focus on running their business.

Litigation is never easy and with the above, I hope you now have a clearer understanding of what going to court entails and that you have picked up some strategic pointers.

Sam Choong

Litigation – the Practicalities of Going to Court? Part I

Posted on Leave a commentPosted in court, legal, litigation, suit

What’s it like going to court? What does it entail? Should you sue? Should you retaliate when sued? Or should you just settle? And if so, at what point in the process do you show this hand? Who do you appoint?

 

I’m finding that churning out a steady stream of articles and the amount of legal work I do is inversely related. It’s been a productive few months advising on several challenging court cases for clients, hence my radio silence.

 

Attending court is a given for lawyers. Even for those of us involved in solicitor type work such as boardroom negotiations and drafting agreements, chances are non-contentious matters such as probate, letters of administration applications or joint divorce petitions, to name a few, still bring us to court.

 

In recent months, I’ve been engaged with work of the contentious kind: that is, litigation or court work. Such work revealed some unexpected issues. In one situation, when a client approached us, he was so absorbed with retribution that, come what may, he had made up his mind to litigate. We wondered if he had fully appreciated what he was getting into. Did the litigation make commercial sense for him?

 

In another matter, we experienced the opposite end of the spectrum with a client who was so overwhelmed with the process that he wanted to settle as soon as possible. The circumstances were exacerbated by the plaintiff’s aggressive stance. In such cases, we had hoped that our client’s frayed nerves might be calmed and clarity of direction restored with some guidance and “hand holding.” We had to consider whether he had the luxury of this option, and if a settlement would fall short of what he deserved. We were also aware that plaintiffs can sometimes be over-confident because their claims have not been tested by the defendant’s questions. We knew such over-confidence can quickly dissipate when reasonable doubts are raised from thorough research by a solid defence team.

 

My clients are smart, successful and have life experience, so their inability (or oblique refusal) to understand concepts us lawyers consider straightforward (despite repeated explanation), piqued my curiosity. It would appear that the process of litigation or going to court would not be as straight forward as I had thought. Because of this, it was timely to contribute this piece which I hope would break the process down into the various stages and offer some clarity to the layperson if he has to go to court.

 

What’s it like going to court? What does it entail? Should you sue? Should you retaliate when sued? Or should you just settle? And if so, at what point in the process do you show this hand? Who do you appoint?

 

As you will note, this article on litigation is meant for the layperson. And by that I don’t mean someone from the corporate world or a seasoned businessman. I’m talking about those who have never dreamt of suing anyone or who have never in their wildest dreams thought they would be a defendant in a suit. This would include, for instance, a housewife who may be facing matrimonial issues such as divorce or a custody contest of children, property investors who end up purchasing a property with a fake title, a group of engineers who have built a successful OEM company who are facing a claim from their customer for the first time, or an executor of an estate being sued by the potential beneficiaries of an estate. We always think it can never happen to us but sometimes it does and for the first-timer it may be a harrowing experience, to say the least.

 

1) What’s going to court like? What does it entail? Should you sue? Should you retaliate if sued? Or should you settle?

In the heat of the moment, people often threaten to sue especially after an altercation. But once the process has been initiated, do they have the ability to see things through? The following are the different traits needed to see the process through:

  • Emotional fortitude — litigation can be stressful;
  • Long attention span and the ability to commit to some hard work. Unlike dramatic TV court scenes where the “villain” is cross examined by an equally dramatic lawyer, in life, no one person is the villain; there are just two parties with different view-points. And these differing view-points have to be backed up with facts. Allegations have to be supported by facts and can be considered defamatory if not, but this is another legal topic for another time. And the best person to furnish the lawyers with the facts is the client. As they say, the devil is in the details: even if litigants are willing to pay for the best lawyers, factual and investigative work have to be carried out by the clients to furnish their lawyers with the raw materials to build the case); or
  • Financial capacity — costs awarded to the successful party usually don’t cover the legal fees incurred.

 

When people hear about litigation, dramatic TV court proceedings come to mind. Contrary to the TV courtroom depictions, sometimes the battle is won or lost at the outset; even prior to any court proceedings. If I may quote Abraham Lincoln, “To cut down a tree in 5 minutes, spend 3 minutes sharpening your axe. Give me 6 hours to chop down a tree and I will spend the first four sharpening the axe.” Therefore, doing your homework is paramount.

 

Granted a smart and quick lawyer who is able to think on his feet in court is imperative. But as mentioned earlier, most cases are actually won or lost many months before any court appearance, through research of the law, uncovering the facts, and anticipating the arguments of the opposite side. This is where the relevant factual information has to be furnished to the legal team by the client. Hence, litigation wins or losses revolve a lot around the facts. Do you have the time, interest and the aptitude to investigate and furnish the facts to the lawyers?

 

And before we get into the nitty gritty of the case with the lawyers, have you appointed the right team for the job? Getting this formula right from the outset is crucial. Taking time to research the appropriate lawyer to work with you could be pivotal to winning your case. This brings us to the next point:

Part II: Read more about this next week!

2) So who do you appoint? How do you choose a lawyer? Do you pick the firm or do you pick the lawyer?

Official MM2H Workshop (Looking Forward to Updates!)

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On 20th March 2018, it was publicly announced for the first time at the British Council event (where I presented my Wills Seminar to British expats) held at E&O Hotel, Penang that new MM2H guidelines would come into effect mid-2018. This announcement resulted in more questions than answers and the expat community in Malaysia were understandably concerned. On our part, we wrote to the Immigration Department for clarifications and our proposed suggestions (in a nutshell for existing MM2H holders as well as applicants who had submitted their applications to be “grandfathered”).

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Important MM2H Updates! Popular FAQs Answered!

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MALAYSIA MY SECOND HOME (MM2H): FREQUENTLY ASKED QUESTIONS, MAY 2018

It’s been months since I published our last MM2H FAQ. Since then, I’ve had an overwhelming number of questions from those of you seeking clarification as you consider making Malaysia your new home. As there have been many questions, I’m going to list the most common ones in our latest MM2H FAQ sheet, which I hope will help to ease the process for you!

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Estate Planning for SMEs at Vistage

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As someone who likes his advice to be user friendly, there’s nothing like getting direct feedback from the business community. Specifically, in terms of the laws of succession and estate planning, what type of guidance they need. I recently received an invite from Vistage, a peer advisory grouping of CEOs and business owners, to chat to them about Estate Planning for family owned SMEs. Of course, I accepted without hesitation.

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