Getting
up and trial @ 06.09.2013, updated 21.06.2019
1. Preparing
for trial - be guided by chronology of events:
a)
No
point for partners to keep asking for chronology.
b)
Lawyers
must find it useful.
c)
Why
chronology – old and complicated files: format, additions, rewrite.
d)
Avoid risk of overlooking something.
e)
Everything is at fingertips - impress the judge.
f) Source of documents, date, event/documents, comment – conflicts,
inconsistencies, gaps in information etc, exhibit number.
g)
Update regularly.
2. Drafting agreed facts - refer to COE.
3. Drafting issues - read pleadings and submissions
filed in LC, HC, COA for earlier proceedings: SJ, striking out etc to identify
issues.
4. Bundle
of documents – practice note No. 1 of 1969 and No. 3 of 1970:
a)
Document
and attachment should be treated as 1 document.
b)
If in
doubt, put in part C: non-agreed.
c)
Notice
To Produce – s66 of Evidence Act.
5. Witness
statement:
a) In
witness own words. No finalising WS without seeing witness. Gauge level
of education or experience – bankers, businessman, dispatch boy etc.
b)
Don’t
copy statements from pleadings. Facts but in legal terms vs giving evidence.
c) Avoid
difficult or uncommon legal terms - negligence, breach of
duty, fundamental beach.
i) Sindutch
Cable v LTB Power.
d)
Get
first response and ask further questions. Treat like real trial but simplify.
e) No
leading questions unless sure that there will be no objection from opponent.
E.g. agreed facts.
i) Formosa Resort Management v MBB
f)
Don't
cut and paste from other WS without amendment. No 2 persons use exact same
words to describe same event.
i) Impression
Concept Interiors v Profil Makmur
ii) Lim
Kee Bak Kut Teh
g)
Way
to introduce documents. Take care of weight.
h) Evidence from recollection of old events cf
evidence from reading documents. Don’t ask: please see pages ... and ... of
CBOD, what is this document?
i)
Don't
state “I will answer/tell in Court”. No matter how difficult or long the answer
is.
i) Rohani
v Hualon Corporation
6. Preparing
witness for trial:
a) Witnesses like to compare practice of Malaysian
court with court in their own countries. “If you want to win your case, come to
our Court and play by its rules”.
b) Tell witness: Forget about what you have
just said in court. Focus on the next question. It is more important.
7. Presence
of witnesses in Court while another witness is giving evidence:
a)
Disclose
to Court.
b)
Parties
may be present in open court but some judges do not allow.
c)
Companies
– representatives.
d)
Expert
witnesses may sit in open court - opinion not facts.
7. Cross
exam questions – thorough preparation and visualize.
8. Note
taking:
a)
Important
things said in Court: judges' comments; argument on law.
b)
Agreement
on documents and to lead witness etc.
c)
Write
re-exam questions - practise and learn.
d)
Write
down important points for submissions.
9. Appeals
to Court of Appeal – Practice direction No. 1 of 2008, letter dated 18.11.2010,
No. 3 of 2011:
a) Gopal Sri Ram JCA: Prepare for appeal at the High
Court trial - when the major ruling is made against you.
b)
Leave - set out chronology, set out whole
story. Short paragraphs.
c)
Exhibit record of appeal.
d)
Must not assume judges read papers.
e)
Don't assume judges know the law.
f)
If appeal is against part of decision,
describe very clearly in 1 sentence.
g) Memo of appeal - list of complaints vs judge
- don't draft too specifically. Draft in broad ways, then go into specifics.
h)
Prepare only outline of submissions.
i)
Submission - take the best point first.
j)
Do it in style.
k)
Responding to opponent.
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