I attended the Effective Appellate Advocacy webinar organized by the Kuala Lumpur Bar Professional Development Committee, delivered by trainers from the Advocacy Training Committee of the Malaysian Bar.
Here are the 9 lessons I learned:
- Know your rules and timeline
Be familiar with the procedural rules related to your appeal. This includes knowing the Rules of Court 2012, Rules of the Court of Appeal 1994, the Rules of the Federal Court 1995, and the various practice directions, depending on the nature of your appeal. Make sure that you use the right forms and formats for your appeal documents, such as the notices of appeal, memorandums of appeal, and the records of appeal. You must also be clear with the requisite timelines, to avoid any late filing that may jeopardise your appeal.
- Be clear with the purpose of an appeal
An advocate must be clear that his / her duty at an appeal is to point out errors of the lower court that warrant appellate intervention. Therefore, the appellant should focus on finding mistakes by the learned Judge in the lower court while the respondent should focus on defending the judgment of the learned lower court Judge.
An appeal is not a rehash of the submissions at the lower court, hoping that the appellate judges would somehow decide differently. In fact, just because if an appellate court judge would have come to a different conclusion had his lordship / her ladyship sat in the lower court, is not a sufficient reason for appellate intervention or to disturb the finding of the lower court. See the case of MMC Oil & Gas Engineering Sdn Bhd v. Tan Bock Kwee & Sons Sdn Bhd [2016] 4 CLJ 665.
- Understand the difference between submitting before a trial judge and an appellate court panel
Understand that, unlike a trial judge, judges at the appellate court do not have the familiarity with the case as they were not present at the trial, let alone being involved from the commencement of the suit.
Judges at the appellate court only come to know about the substance of the matter when they receive the records of appeal. Thus, an advocate must be wary of that difference and adjust his or her submissions accordingly.
This also means that every piece of document that you file in Court should be clear and concise so that the appellate court judges can understand your case accurately and quickly. You must also be very familiar with the records of appeal so that you are ever ready to direct the judges to the evidence when they require so.
- Concise, concise, concise
Judges have limited time, and your case, as much as it is important to you, is one of the many cases that the judges have to decide on that day.
Therefore, keep your submissions comprehensive but concise. Though that may sound contradictory, that can be achieved if you are fully aware of the key issues of the case, and that you fiercely plan and edit your submissions, written or oral.
You should review your submissions multiple times and remove any unnecessary arguments, sentences, quotations, words, and authorities. You must remember that anything that is not necessary can be a distraction, which weakens your persuasiveness.
- Lead with your strong point
As the Court’s time is limited, always start strong. Always lead with a strong opening that captures the attention of the Court, and then lead with your strongest point. This is because firstly, that would be what the Court is most interested in, and secondly, if you don’t, you may never get to that point, or even if you do, you may have lost the judges’ attention and interest by then.
A good introduction should spell out who are the parties before the Court, what is their dispute, what does the Court have to decide, what are your grounds of appeal, and what are you praying for.
- Do not quote unnecessarily
Avoid unnecessary citation of cases. If there is a Federal Court case, citing that case itself is sufficient. There is no need to include 5 other cases that state the same principle, and worse if those cases are from the lower courts.
There is also no need to extensively cite paragraphs of a judgment; you only need to point where the Judges can find them if they want to. This will make your submissions shorter and punchier. There is also no need to cite cases, during oral or written submissions, that merely state well-established principles of law.
A lengthy discussion and analysis of court judgments are often only necessary when a noble or unprecedented point of law is involved.
- Prepare for judicial intervention
As with all advocacy work, preparation is key.
At the Court of Appeal, judges often would have read the records (even if briefly), and would have known what your case is about. The judges may also have had discussions amongst themselves, and may have formed a preliminary opinion on the case.
The judges may, as a result, have discovered what are the gaps in your submissions or what points in your submissions that they are not clear or unconvinced with.
Therefore, oftentimes a hearing at the Court of Appeal is merely to answer the questions that the judges have, as opposed to an oral presentation of what you already have stated in your written submissions.
Thus pre-empt the likely questions by the judges and prepare for them. Persuade them by answering their queries and addressing their concerns.
- Observe and listen
Remember that you’re dealing with 3 judges. There are 3 judges that you need to convince, or at least 2, to win the appeal. Therefore, you must be on high alert and notice the questions and the body language of each of the judges. Notice which judge is not convinced with your arguments, and which judge is already won over by you. Then, you must strategise and react accordingly to win over the unconvinced judges.
Notice also the subtlety and nuisances of the interaction between the members of the bench; sometimes a judge may be asking you a question to assist you, for example, a question that allows you to repeat your case so that the other judges can be equally convinced.
The speakers also shared a particularly insightful tip, which is to pay attention to the tone of the judges’ questions.
Were the questions made in a tone that was “inquisitive”, “challenging” or “dismissive”? If the tone is inquisitive, this means that the judge is keen to listen and find out more about the argument you are making. If it is challenging, then it shows that the court is not quite convinced and is seeing some weaknesses or gaps in that argument you are putting forward, which means that you must quickly address these gaps or you may want to forgo them and move on to the next argument. If it is “dismissive”, then it is quite clear that the Court is not with you on that point, and perhaps it’s best that you move on and spend your limited airtime on other points. If the judges are sitting back and nodding along, then you should feel confident about the submissions you are making.
- Self-introspect
Lastly, the speakers shared that the way to improve one’s advocacy prowess is the habit of self-introspection. A good advocate must always reflect critically on his/her own performance, i.e. on what he/she thinks he/she did right, and what he/she should improve on. Then the advocate must make sure they find fixes to those weaknesses, and don’t repeat them during the next hearing.
If you have colleagues who joined you in the hearing, you can also speak to them and encourage them to give you feedback on how you performed. This will also aid you in your journey towards excellence.
Conclusion
There were many other useful lessons that I did not mention here.
I encourage all lawyers to join these advocacy courses organized by the Bar. They are definitely value for money. I also apologise in advance if I did not accurately represent here the points that the speakers made in the webinar; I welcome any correction or addition.
If you would like to invite me to provide training on advocacy like I do at Mooting and Advocacy Training, feel free to Contact Me.