The Recesses of a Litigation Lawyer’s Mind

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The Law is not the easiest profession in the world. No aspect of the profession gives its practitioners an easy ride. I came into the profession with a moral background. I had a teacher at my A-Level classes at the Institute of Continuing Education (ICE), Benin City, who had the reputation of influencing students to study English Language or Literature in English. John Agetua, who taught me Prose and Poetry, was certain that he had me in his docket. I passed Literature in English with three other subjects at the A-Levels. But, then, I had another teacher who taught me Drama, Mrs Lambert Akhionbare, who believed that I could make a good lawyer. She procured my admission papers and brought them to my house for me to fill in. The next time she came to see me was with the information about my admission to study law at the University of Benin (UNIBEN). So, I got into UNIBEN with Literature as my first love and Law as a challenge to prove my benefactor right. I think I did because when I met her about 12 years after my graduation, her compliment was that she was proud of me.

I have never abandoned my first love. The moral or cultured side of me energized my craving for reforms in litigation. I teamed up with Kehinde Aina to establish the Negotiation and Conflict Management Group (NCMG), the NGO that pioneered Alternative Dispute Resolution in Nigeria. Its structure, aims and objectives were fashioned by me. Although I have since left NCMG, my orientation or sixth sense has helped to solve many cases for my clients.

With the influences of – and pressures from – icons like Professors Itse Sagay, SAN, and Michael Ikhariale, I got into teaching. In no time, I had many publications in journals and contributions to chapters in law books. But being a first-generation professional comes with truckloads of responsibilities. I have never had less than 20 dependants under my roof in the last 20 years. Teaching was, therefore, not a reliable ally. I had to ditch it for litigation. That meant having to start from scratch and queuing behind contemporaries and younger colleagues in learning the intriguing art of adversarial litigation.

The first hurdle or, if you may, challenge one faces as a litigation lawyer is coping with the chores of practice. Litigation is an energy and emotion drainer. By the way, any Lawyer called to the Nigerian Bar and enrolled in the Roll of Legal Practitioners at the Supreme Court of Nigeria has the right of audience in all courts of record in Nigeria. But some take to other endeavours in the public and private sectors. Except for the few who have excelled and hit high notes in practice, most litigation lawyers are physically and emotionally drained. It is not uncommon to see them awkwardly dressed or less trendy in outlook. Such ailments as high blood pressure, diabetes, back pains and spinal cord associated health challenges are common with litigation lawyers. Such problems are not so much about the difficulty of making a handsome income and prosperity from litigation as it is with the problem of coping with the daily routines and demands of taking briefs, preparing court processes and keeping taps on cases in and out of court. The older one gets into practice, the more concerned he should be about the quality of his legal processes and output in court. A reprimand in court, a mistake that compromises the cases of a client or a loss in court occasioned by inexperience or incompetence is capable of shattering the world of a lawyer. He or she may put up some fronts and try to look good about it, but he faces emotional nightmares on his pillows. Unlike other stressors, a lawyer can only minimize mistakes and errors in his practice. He cannot eliminate them. The law as a profession is too intricate, complex and vast for anyone to master to the point of infallibility. A litigation lawyer’s day is generally one of wins and losses. But is it easy to develop a win-some and lose-some mind and attitude? I do not think so. Pride and ego are blustered by a winning mentality. Some lawyers buy victories through patronage, influence and, in the worst-case scenario, bribery and corruption. Those who have established themselves and built an extensive circle of influence and reach in this infamous category of legal practice swim in affluence. The good part of their ways is that they contribute to making the profession the envy of other professionals and the public. This discussion is not about them because they are in the minority and they do not define the life of the litigation lawyer.

The next challenge is that of mastering civil and criminal procedure. Law and legal practitioners have early influences on the scientific method. A jurist like Francis Bacon may not occupy a space in the history of the scientific method like Aristotle, ibn al-Haytham, Johannes Kepler and Galileo, but his brilliant propositions on the empirical method of acquiring knowledge helped in establishing science as a better – more reliable – knowledge finder. Practice and procedure are what I would call the scientific methods in litigation. They are the vehicles through which cases or disputes are processed by the courts. What I may not say with certainty or without caution or reservation is whether they are a vehicle of justice.  If there is a gulf between the lay public and what lawyers and judges do in court, that gulf is practice and procedure. Litigants are often confused about why the grievances they take to court are put aside and left to wait for the conclusion of all manner of rituals that they have no part in.

The litigants goes to court because something happened to them. They are aggrieved and want relief or reprieve from the court for what has happened to them. They believe that there is a law that the court can apply to their case for them to get the reliefs they desire. You can hardly fault such a mind. The law is said to be primarily a body of principles and rules capable of being predicated in advance and which are so predicated, awaiting proof of the facts necessary for their application. The court does not make laws. Laws are made by lawmakers and the presupposition is that there is a law covering every conduct and area of life and matter under the heavens. The job of the courts is to find a law that suits the cases before them. That law found by the trial court and sanctioned by the apex court of the land is called judicial precedent. That is why it is said that judicial precedent pre-supposes legislation, that is, the promulgation of law by some law-making power, whoever or whatever that may be. The argument is that if the courts cannot find the law on a modern statute book, they must go into antiquity. In any event, they must find the law, not make it. What that means is that once they have ascertained what the law is and recorded it in pronouncing a judgment, we accept that result of the labours of the court as a precedent, rather than go again into the musty past. When, however, we do go again and search the records and find the law to be different from that laid down in the recorded decision, the precedent of the decision is not binding and need not be followed. If such precedent is binding upon the lower courts, it should, upon the discovery that it is not the law, be overruled and removed from among the binding precedents by the apex court.

Deciding cases on the basis of an existing law means that laws do not only have present applicability, but past and future applicability too. Such an ingenious invention has its challenges. Courts do not have unfettered discretion to cut loose from precedents in dealing with cases that come with their peculiarities. They do not have the absolute liberty to question the applicability of an existing law to a case that is imbued with its modern elements and complexities. It is the hard job of the lawyer to convince the court that their client’s case fits the existing law irrespective of its peculiarities or to convince the court that the case lies outside the purview of the law relied upon by the claimant. This aspect of the job of the lawyer comes at the tail end. Much of the energy and time is spent on ferrying a case across the stormy waters of practice and procedure. A lawyer can be a good philosopher and a fantastic advocate who can make spellbinding submissions or write gripping addresses or briefs, but if he is not good or grounded in practice and procedure, he won’t make a good litigation lawyer. The good or outstanding and highly respected litigation lawyer is that procedural guru. Cases are made and lost mostly in the treacherous field of the procedure. Judges get impeached on appeal not out of misstatement of the law but its applicability. Getting abreast with procedure means forgoing life and getting buried in law reports. Being a successful litigation lawyer more often than not means a slave to law reports. Interestingly, the law is a practitioner’s profession. Outsiders, be they professors or experts, hardly have any meaningful influence on the law. The law is shaped and given direction by litigation lawyers. They are the ones involved in the battles that interpret the law.

That is why they are, most times, arrogant and spiteful of non-litigation lawyers. They are the generals and field commanders of the law. They are the law, even if they don’t speak English with poise.

Written by
Sam Kargbo
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