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CRIMINAL TRIAL & ADVOCACY

LAW 543

Golden Rules of Advocacy


BY: MOHAMMAD RIZAL ABIDIN
What is Advocacy?

Advocacy is defined as any action that


speaks in favor of, recommends,
argues for a cause, supports or
defends, or pleads on behalf of
others.
Advocate vs Solicitor
In some Common Law countries the legal
profession is split between solicitors who
represent and advise clients, and a barrister
who is retained by a solicitor to advocate in
a legal hearing or to render a legal opinion.

InMalaysia, the legal profession is fused


which means that a lawyer can
simultaneously be a solicitor and a barrister.
Rules of Advocacy
The court must be able to rely on the advocates word; his word must
indeed be his bond and when he asserts to the court those matters
which are within his personal knowledge the court must know for a
surety that those things are represented.

The advocate has a duty to his client, a duty to the court and a duty to
the state but he has above all a duty to himself that he shall be, as far
as lies in his power, a man of integrity.

No profession calls for a higher standard of honour and uprightness


and no profession perhaps offers greater temptation to forsake them,
but whatever gifts an advocate may possess, be they never so dazzling,
without the supreme qualification of an inner integrity he will fall short
of the highest standard.

Norman Birkett QC
Rules of Advocacy
1. Advocacy has a single object: Persuasion. Persuading a court or a
tribunal to a point of view, and doing so within the scope of the
relevant rules.

2. Honesty - Your word is your bond. Be honest in all of your dealings


with clients and your opponents. Be honest with the court. You must
not mislead the court. If you do, you will, eventually, be caught, which
can lead to disciplinary action and the loss of your practising
certificate. It is an advocates duty to:
i. tell the truth; and
ii. not to misrepresent the truth, or mislead the decision-maker.

3. Good advocates are good listeners. They listen to witnesses and


instructing clients before a hearing. Tell your instructing clients, what
they do not want to hear. Develop a reputation for telling it like it is,
and for saving clients money and reputation by not involving them in
unnecessary hearings.
Rules of Advocacy
4. A good advocate recognises that, half of the cases
presented cannot win. In that case, persuasion of a
different kind, namely, the ability to persuade the other
side to settle on the best possible terms for your side,
marks out another essential skill of a good advocate. If you
settle your bad cases, and win most of your good
cases, you will obtain a reputation as a good advocate.

5. Be courteous to the court, your opponents, witnesses, and


court staff. Remember that it is often registry and
chambers staff who determine when, or if, your hearing
(and particularly urgent hearings) get heard. Be polite,
address people by their correct titles, know the names of
your client and the witnesses.
Rules of Advocacy
6. Be on time! You do not want to have the embarrassment
of applying to set aside orders dismissing a matter for
non-appearance because you were not in court at the
appointed time and ensure that you are properly attired,
both generally and in relation to robing where necessary.

7. Know the Battlefield - Know the physical location of the


court, whether on the ground floor or the first floor. Know
the judges and know the cases they have decided.
Whether to emphasise heavier on the facts or on the law.
Important to know who is presiding over the panel and it is
important to win over the presiding judge.
Rules of Advocacy
8. You must prepare. You must claw away at the facts. You must know
them for the duration of the case. You must read and know the
law. Research the law, and research it properly.

9. You must have strong written submissions. So much of the battle


can be won through good written submissions. Justice Abdull
Hamid Embong FCJ (as he then was) from a conference in 2015:
Win or lose the case, your written submission is your biggest
weapon, it should be well researched and a proper submission.

10. Written submissions - Be clear. Between a short sentence and a


long sentence, choose a short sentence. Between a bombastic
word and simple word, chose the simple word. If you have any
doubt whether you should say something, dont say it. Mind the
language. Sufficient attention to be given to grammar and
spelling.
Rules of Advocacy
11. Bundle of authorities - please have it paginated. It is easier
and faster for the judge and the opposite counsel to find
the pages that you will be referring to. This also applies to
the exhibits attached to the affidavits, especially when
they are voluminous. And if you do highlight certain
passages dont just highlight your own copy and the
judges copy. Highlight the copy that you are giving to the
opposite counsel as well.

12. The most important thing in advocacy is to make the judge


understand you. If you cannot make the judge understand
you, it is more likely that you may not win the case. Before
you can make the judge understand your case, you must
understand it first.
Rules of Advocacy
13. It is always a good practice to make a summary of:
1. the chronology of the proceeding; and
2. the chronology of facts.

14. The ability to tell a story simply, and to maintain command both of
your own and your opponents witnesses, is necessary. The
capacity to use the right word at the right time can leave a lasting
impression, for better or worse. A single word or phrase in cross-
examination or submissions can sometimes make a difference.

15. It has been said that without presence there is nothing at


all. Presence is a quality that is usually developed over time.
Young advocates who can hide their nerves will generally
have presence if they have confidence and courage.
Rules of Advocacy
16. There is a tendency among new lawyers to place too
much emphasis on case law rather than the facts of
their case. They start off by citing authorities. All a
judge wants to know are the facts of the case, what
prayers you are asking for and why he should give
the order that you ask for.

17. The judge is more interested to know decisions of


higher courts because they are binding on him. Most
judges are more interested in local authorities than
authorities from other countries. Cite foreign
authorities if there are no local authorities and only if
necessary.
Rules of Advocacy
18. In court, if you are wrong, admit it. If you are not wrong, be
courageous, and, within the limits of your duty as an
officer of the court, stand your ground in accordance with
your duty to your client.

19. Glance at the judges hand. If he is still writing, dont ask


the next question or continue with your submission. Judges
take longer time to record the evidence of witnesses
during cross-examination and re-examination compared
with examination-in-chief. This is because the questions
are always related to what the witnesses had said earlier.
The judge has to incorporate the relevant part of the
witnesses earlier evidence in the answers, otherwise they
would make no sense when they are read later.
Rules of Advocacy
20. When the Court gives its decision, accept it gracefully. If
you are not happy with it, appeal. That is the system.
Courts Attire

Appropriate attire is required when


attending court.
If not properly attired, a judge may respond
by saying I do not see you or I cannot
hear you.

Whats at stake here is your credibility. Are


you believable? You wont be if you sound,
act or dress inappropriately.
High Court, Court of Appeal &
Federal Court

For Men:
White long sleeved shirt with

white wing collar and bib.


Black/navy blue/dark grey
loose slacks. Stripes
permissible.
Black jacket. Brass buttons

not permitted.
Black/navy blue/dark grey
shoes.
Black robe.
Turban and songkok
permitted.
High Court, Court of Appeal &
Federal Court

For Women:
White long sleeved shirt with white wing
collar and bib.
Black/navy blue/dark grey skirt. Length

below the knee. Stripes permissible.


Dark loose trousers, not hugging. Leggings

not allowed.
Traditional dress Decent, no glaring
colours.
Black jacket. Brass buttons not permitted.
Nylon Socks Skin tones (optional).
Black/navy blue/dark grey shoes. Open toed

shoes / sandals are not permitted.


Black robes.
Black/white/navy blue/dark grey head-dress.

Subtle floral or patterned prints are


permitted.
Magistrate Court, Sessions Court &
In Chambers

For Men:
White long sleeved shirt with tie
(no bow ties)
Ties no glaring colours. Wing
collar and bib allowed.
Black/navy blue/dark grey loose
slacks. Stripes permissible.
Black jacket. Brass buttons not
permitted.
Black/navy blue/dark grey
shoes.
Turban and songkok permitted.
No robes.
Magistrate Court, Sessions Court &
In Chambers

For Women:

White long sleeved shirt. Tie (optional)


no glaring colours. Wing collar and bib
allowed.
Black/navy blue/dark grey skirt, length
below the knee. Stripes permissible
Dark loose trousers, not hugging
Traditional dress Decent and not glaring
colour
Black jacket. Brass buttons not permitted
Nylon Socks Skin Tones (optional)
Black/navy blue/dark grey shoes. Open
toed shoes / sandals are not permitted.
Black/white/navy blue/dark grey head-
dress. Subtle floral or patterned prints are
permitted.
No robes.
Accessories

All lawyers (male and


female) are prohibited
from wearing any
emblem, ribbon,
badge, band etc,
which symbolizes any
political party or
political motive.
Courts Layout

Bench

Clerk/Interpreter
Witness

Defence/Resp DPP/App

OKT
Courtroom Decorum
1. In Open Court
Interpreter will announce the court is in session.
All stand whilst the judge enters.
Judge approches his seat and bows.
Everyone present in court bows in return.
When judge is seated the rest may sit down.
Interpreter will call case for hearing based on the court
list. Counsels will announce their appearances.
Introductions are done by DPP i.e. If my Lord pleases,
my name is __ and I appear with my learned friend,
Logan for the prosecution. My learned friend __ and __
appear for the accused.
Remember to stand when the judge leaves.
Courtroom Decorum
2. In Chambers
Enter judges chamber and wish him/her good
morning/afternoon.
Proceed as you would for an open court hearing.
Client may not attend in chambers unless with
judges permission.
No need to bow upon entering/leaving. Customary
to wish judge good day before leaving.

Note: Once you reached court always remember to record


your appearance with the interpreter.
Addressing the Court
1. The court is an embodiment of the sovereign.

2. Make sure you address the court with humility and


grace.

3. When adressing the court look directly at the judge.

4. Customary to open communication with the phrase


My Lord

5. If you want the court to take notice of something say


I respectfully invite my Lords attention to or
May it pleases the Court.
Addressing the Court
6. Addressing the judges of subordinate courts:
a. Tuan/Puan Magistrate Court/Registrars.
b. Tuan/Puan Hakim Sessions Court.
c. Your Honour both Magistrate, Sessions & Registrars.

7. Addressing judges of superiror courts:


a. Yang Arif, My Lord or My Lady.
b. A panel of judges: Yang Arif-Yang Arif or My Lords & My
Lady.

Note: You may also use If the Court pleases or If it pleases


the Bench.
Addressing the Court
8. Addressing the opposing counsel/ witness:
a. Defence Counsel: My learned friend
b. Prosecution : by title and surname i.e. Mr. Smith or
Mr./ Tuan TPR.
c. Witness: by title and surname.

Note: Never refer to a person by his/her first name only.


YAA Chief Justice

The Right
Honourable Tun
Arifin bin Zakaria
YAA President of the Court of
Appeal

The Right
Honourable Tan Sri
Dato' Seri Md Raus
Bin Sharif
YAA Chief Judge of Malaya

The Right
Honourable Tan Sri
Dato' Seri Zulkefli
bin Ahmad
Makinudin
YAA Chief Judge of Sabah &
Sarawak

The Right
Honourable Tan Sri
Datuk Seri
Panglima Richard
Malanjum
Language
1. In the lower courts, Bahasa Malaysia is almost exclusively used, apart
from the giving of evidence by witnesses. In the superior courts both
Bahasa Malaysia and English are used. Begin in Bahasa Malaysia when
introducing yourselves and if you wish to continue in English, ask for
permission.

2. Speak clearly and loud enough for the court to hear you.

3. Do not read your argument; be prepared to speak about the case from
points written out before hand.

4. Be prepared to answer questions from the bench know your facts


and authorities well.

5. Do not use personal phraseology i.e. I think or It is my opinion.

6. Instead use it is submitted or it is suggested.


Citing Cases & Authorities
1. When citing the full reference to the case should be
quoted i.e. PP v Mat [1963] MLJ 253 is as follows:
Public Prosecutor against Mat, 1963 Malayan Law
Journal at page 253.

2. When referring to judges when citing cases honorific


title is never used save in the case of royalty i.e.
Justice Harun Hashim, Justice KC Vohrah, Justice Raja
Azlan Shah.

3. Australian and English judges are referred to by their


full titles i.e. Mr. Justice Dixon, Chief Justice Sir Garfield
Barwick, Master of the Rolls Sir Anthony Clarke.
Presentation 1
Prepare a powerpoint presentation on:
1. The Golden Rules of Advocacy; and
2. Duties of an Advocate & Solicitor to the Court and
the Client with reference to the Legal Profession
(Practice & Etiquette) Rules 1978.

Rules:
3. 30 mins is allocated to each firm.
4. Compulsory for ALL firm members to present.
5. Presentation must be clear and creative.
6. Discuss/highlight current issues.
THE END