Hang Solo

When I did my very first trial under my own firm name I was lucky enough to be able to rope in a more experienced friend into helping me out. At that point of time my cross examination skills was rudimentary. I have the basic theories right but the execution was horrible. The said friend did criminal trials on almost weekly basis. I’ve seen him in action a few times and the way he sweet talked witnesses into ritual suicide on the stand is just exquisite.

I was for the Plaintiff. One day half way through the trial the said friend made an observation about the counsel for the 1st Defendant. ‘’I have mad respect for him.’’ said my friend. When asked why he said, ‘’because conducting a criminal trial is no cake walk. Conducting a civil trial with all the cause papers and bundles to prepare on your own and then to examine and cross examine witnesses all alone while referring to bundles of documents at trial is either an act of supreme confidence or desperation. Look, even 2nd Defendant’s counsel had a younger colleague helping him out.’’ said my friend while motioning to the senior practitioner chilling while his younger colleague was busy wrestling with our voluminous bundles of document (3 years worth of WhatsApp Conversations) into their bags. The 2nd Defendant was a commercial entity hence the senior-junior team conducting the defence for 2nd Defendant. 1st Defendant’s counsel had a crappy set of facts but he soldiered on and he soldiered on alone. I looked to 1st Defendant’s counsel with new found respect. He must have known I was looking because he struck a few heroic poses for my sake. A few weeks later he closed his branch of the firm and went on to join government service.

I agreed with my friend. I believe that at trial two or more heads are better than one. Same goes with eyes and ears. What one set misses the others will pick up. Or so how my logic went at that time.

Fast forward a few years, I had to conduct a trial solo. My cross-examination skills are better but the trial itself was a harrowing experience. It was an investment scam case. I represented the Defendant. I had a lousy set of facts and minimal documentary proof. When I took up the brief I told the client that I will do my best but best be prepared for the worst. I was poring over my trial notes a few days later when I realized that there were areas that could have been improved upon, a gap in a cross-examination answer that could be exploited and I overlooked them. In between keeping an eye on the judge’s response, thinking on my feet, parrying numerous technical objections and hurling a few of my own, cross-examining witnesses, taking down answers to cross-exam questions and taking down issues for submission and so on I came to understand why some lawyers charge big bucks for the trial alone. There are a lot of things to keep track on during trial and you have to do it all at the same time. To do that alone requires a quick mind honed out of countless of trials. But for greenhorns, best get someone to second chair for you. Most of my practicing friends of similar years in practice realized the same thing at around the same time. We began to do trials in pairs or even better, in small groups whenever possible. We get the job done, together.

Hashing out a line of argument or a cross-exam questions out on your own is okay but with a friend or two, it is more lively, less of a chore and you get the benefit of a new point of view to improve and tighten any argument or when necessary, discard an argument in favour of a new one.

Conducting trials with friends are better than doing it by your lonesome. Physical trials that is, where the pressure is amplified and there is no screen between you and the judge. Again it is the two or more heads are better than one thing. Once, I ran out of breath while cross-examining a witness and had to sit down. With the court’s leave my friend carried on cross-examining the witness, with his own style but within the agreed line of questioning. Handy to have a friend help out during trial, and fun. Just like it is fun to have a road trip for that out of town trial with friends. It is fun to see an opposing witness dig himself deeper into a hole over a line of questions that have been jointly crafted out together with friends. When the day’s session is done, it is fun to hunt for a place to eat, drink and be merry and reflect on the day. With friends it is less stressful and memorable to do trials with friends. It has something to do with the free exchanges in conversations as opposed to the stilted ones between senior-junior or boss-underling.

Once I had a trial in the East Coast during Ramadhan with the aforementioned friend. It was a hot day. Despite the air-conditioning the heat somehow affected the pace of the trial. Everything and everyone moved in slower pace. The hot weather and slow trial was more than made up by the varied fare of the extra meriah and extra huge Bazaar Ramadhan near the hotel where we were lodging. So when I got back to my room waiting for the time for me to down that air mata kucing I had bought, I realized I had some of my friend’s kueh with me. When he answered the door, he was wiping off some excess Mayonnaise off his lips no doubt from that sexy looking batch of Roti John we each had bought at the bazaar. In jest I went: Amboi, dah jalan dulu. His feeble defence was: Aku uzur lah. Can’t remember if I flipped him the bird in reply with it being Ramadhan and all. Another time the same guy almost set his mattress on fire in a non-smoking room. It is those kind of things which made doing trials with friends memorable. It is always an adventure.

But damn that Roti John was good.

Don’t get me wrong. I am not making light of a client’s plight or taking his cause for granted over some Roti John. Sure when I do trials I want to win but to win or to lose is not entirely up to me. I cannot guarantee that. I am not in the business of giving guarantees. What is up to me is to prepare for it and deliver it in court the best I possibly can. That is legal representation is after all. If I can do it all better with friends and have fun while at it, why not?

Hang Tuah had his fellow Hangs. Han Solo had Chewbacca to watch his back and to co-pilot the Millenium Falcon. Me? I say hang solo trials. Anything worth doing is worth doing with friends.

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Satisfaction.

 

For the longest time I had been eyeing a book at the Curve’s Borders. It was a book about dueling entitled Pistols at Dawn. When I finally got the book I was in my fifth year in practice and the book had shifted from the normal shelf to the almost-bargain bin shelf facing the open glass walls. Years of exposure to the Sun had bleached the spine into an ugly off-green colour. I got a nice discount for that book and that was satisfying. But, whenever I look at the spine I still had that internal ‘’aiyoh, poor little book’’ going on in my mind. Luckily, I do not judge a book by its spine. Though the cover matters.

Anyway, I got the book because the subject of duels and how it evolved from medieval trial by combat fascinates me. That, and also the fact that Men used to carry their honour around like one would would carry a clutch of eggs of very brittle shell. A wrong look, a laughter at the wrong time, a misunderstood comment, a blow (not that one) and being made a cuckold could be the cause of a duel and the list of duellable grievances could range from the ‘’boleh slow talk’’ kind of thing (definitely not to cuckoldry) to the absurd.

According to the book, as the judicial system matured to court as means of settling disputes duels did not diminish in its stature as dispute resolution method. It merely went from officially sanctioned occasion to discrete, at dawn type of affair with surgeons or doctors in attendance and a hearse at ready.

Some railed against it but the people in power turned a blind eye to it. Prosecution in court mostly are halfhearted since it was all the fashion at that point of time. In the event of the duel being too widely known as to not allow the turning of blind eye (or eyes) to it, then action would have to be taken. Just like corruption in Malaysia.

The conduct of duels despite being illegal beginning had the cloak of legitimacy to it with its code duello governing its conduct and usage of seconds for parties to negotiate settlements (if any) written down and to be kept within one’s case of a matching pair of duelling pistols so that in case of dispute of the finer points of duelling code one would whip it out to for reference (to avoid a duel over the code, I hope). Take your pick of Irish or French code. Irish Code duello is the shorter of the two and mainly for pistol-duelling. The French code is more detailed. One thing both have in common is that once blood is drawn, the matter is concluded. Parties may withdraw with honour intact or restored. Most of the time.

Duels by default are not just a Western phenomenon. The written duelling codes and standing stock still to receive a bullet is. It was common to societies with honour code which is practically almost everyone. From Native Americans, the Arabs, Indians, the Japanese to Malays. The general Khalid ibn Al Walid of early Muslim period was known to challenge his opposing counterpart to a duel prior to a battle, partly as a form of psychological warfare and to avoid unnecessary fight whenever necessary. Let us not even talk about Miyamoto Musashi. Who would not know the infamous Hang Tuah and Taming Sari duel or the Tuah-Jebat duel. One wonders what the outcome would have had it been a pistol duel. Would it be a Gun Kata kind of fight instead of keris duel? Would they still be fighting on trays (talam)? Is Tuah the better gunslinger? Or Jebat is the one with the quicker trigger finger? Of what calibre would Taming Sari be? Ah, the possibilities..

In the US, despite having kicked out the British and their tea culture, they maintained the English Common Law as at 1777. So, by default trial by combat has not been abolished. Some fairly recent cases have been reported online of attempts to invoke the right for trial by combat with varying results.

In England the right for trial by combat was extinguished sometime in 1819 after one last court case in which an accused invoked his right to trial by combat. The challenged party did not show up and the accused, accused of murder no less walked out of the court a free man.

By virtue of Section 3 (1)(a) of the Civil Law Act 1956 which extends English Common Law into the country, trial by combat is not available in Malaysia which is a pity. We could be seeing a lot less of sembang kencang online and offline about your maruah and stuff and hopefully, the creation of a more dignified and polite society. Politician would cease to spout nonsense to one another. Not to mention the revival of the keris making industry and other traditional edged implements. Self-Defence classes will see an uptick in enrollment. Violent crime (with exception of duels) will decline, with everyone armed and trained, everyone will be treated with respect and courtesy. An armed society is a polite society.

Does this take away the power of life and death from the courts? Maybe. No wait. The power of life and death has been taken away from Malaysian courts with the abolishment of death penalty. But will this keep everyone on their toes? It will. Everyone will walk on eggshells and when your life is on the line it will promote amicable settlement of disputes.

Who would could deny the gravity of the act of throwing that gardening glove, or dish washing glove in lieu of a gauntlet, and when needed, to an insulter’s face to demand satisfaction. Though both or either party to the duel could be liable for manslaughter or murder or attempted murder later on, but such is the price for satisfaction. That is what honour demands out of a gentleman.

That is, if you are a gentleman lah.

I say if some buggers demand the treatment as gentlemen of quality with honour and dignity baked in, worthy of the love and votes of the common folk then let them prove it. Accused of some heinous crime? Grand thievery? Diversion of public funds? No matter. Let the people decide the champion for the prosecution, let the accused fight for his honour to the tune of that Benny Benassi track.

I say recognize duels as a way to settle disputes. The people (well, some people) demand satisfaction.

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