On Specialization

‘’A human being should be able to change a diaper, plan an invasion, butcher a hog, conn a ship, design a building, write a sonnet, balance accounts, build a wall, set a bone, comfort the dying, take orders, give orders, cooperate, act alone, solve equations, analyze a new problem, pitch manure, program a computer, cook a tasty meal, fight efficiently, die gallantly. Specialization is for insects.”

-A Time Enough for Love, Robert A. Heinlein-

Not too long ago I had a two weeks leave to think on things and the above quote had been one of the things that I have been ruminating on, especially the last part. Setting aside the tantalizing yet entirely theoretical question of immortality (who wants to live forever anyway?) the above quote has always been my favourite because it idealizes what a competent Man is which is what an ideal lawyer should be; an all-around competent Man. Maybe not as dramatic as the above quote, a competent lawyer is not expected to pitch actual manure. The manure in the legal profession thankfully, is metaphorical in nature.

The question of specialization in my legal practice has always been something that came up once every while for me. These days, I am seriously considering its pros and cons.

I came from a banking law background. I did my pupillage at a law firm where bulk of its files are debt recovery work for banks and the first role I had post-Call was as a debt recovery lawyer. Since I was the new guy, it was only natural that most of the shit files would funnel down to me. The almost time barred, the ones with two judgments entered for the same debt, the half-forgotten cruddy mess that had been gathering dust in a corner that nobody wants to touch. Such was my fortune back then and Good Fortune it was. It could be the reason why when a refreshing General file came my way I grabbed it with both hands and legs.

When started my own practice, the Auditor whom I was recommended to for audit purposes in between browsing through my firm’s books attempted to engage me in small talk. He said something along the lines of the need to specialize after 5 years. 'Setiap tahun ada firm baru bukak, semua buat benda sama. Apa beza firm kau dengan firm lain? Sebab tu kau kena specialize'' he said leaning back in his seat looking very wise. He was a seasoned auditor, doing audits for legal practitioners far older than me so he knows what he was on about. I gave it serious consideration about it at that time. For about 5 full minutes at least, before dismissing it as another worry for the far-off future. At that point of time I just wanted to get my accounts straight for my practicing certificate so that I can continue having fun doing what ever comes my way. To hell with specialization.

Then came the future. I was back doing debt recovery and its related non-legal work such as client entertainment and what have you. Time helped me in developing the confidence and thick skin to power through the messiest of files. Then 4 years in, I began to realize or rather, remember the reason why I did not pursue bulk debt recovery files even when my then small practice then had most of the boxes ticked. Sure it is the economic choice of most if not all firms since it pays the bills. Steady stream of income and all that but I could not help but feel there is something missing from it all.

I need the rush. I need the thrill of a fight that only a general file can give me. Making a living and making you feel alive are two different things. But an interesting and well-paying general file does not come my way often. It is not everyday that a spectacular mess comes into being and awaiting its day in court. To be dependent on general files alone is a big risk and not commercially viable, unless it’s the kind of file that can keep the lights on and your family fed for months on end. So, I ventured out into areas like Industrial Court matters, construction and such. Just to look for that new kind of kick and the moolahs. I get it from time to time but I still have no niche area of my own. I am for now, a generalist. I am Jack.

The way I see it, general practice, is akin to having the competency in the use of one’s fist in a fight. A pugilist. Maybe the moves varies but all you must rely on are your fists. All you have to do is clench them. Gloves are optional.  

What I know is that general practice is about being thoroughly competent that so long as its about fighting in courts and tribunals, you know what to do for you have the rules and tactics already in your head no matter how outlandish the subject matter of the dispute is. It is all muscle memory to you. You know what to do when a nasty left hook comes your way.

Specialized practitioners on the other hand are your cold and hot weapon experts, your Arquebusiers and Zweihanders. Within their area of competence they are deadly. They are the subject matter expert, masters of their art and they command the big bucks (or so I was told). By virtue of their specialization they are well sought after whereas pugilists are a dime a dozen. But their specialization is both their greatest strength and also their greatest limitation. Asking a master bowman to participate in a bare knuckle bout is like asking a veteran lawyer had done nothing but conveyancing matters to handle a full trial (why is it called full trial any way? Is there such a thing like half trial? Quarter trial?)  

Is there a way to have it both ways? Dual wield so to speak? Or to hit the sweet spot between competency and expertise? The area where general practice and specialized practice overlaps and some measure of financial stability is possible. Can it be done?

Maybe. Perhaps.

I don’t know. That is why I am writing this. I have not found the answer. Maybe I am too greedy in wanting to do everything that dispute related. Perhaps I need to talk to more old timers in the legal profession. See how they do it back in the day. The thing about people in general is that we don’t really change. Times and trends changes but we don’t. There will always be complaints over goods sold and delivered, families will always be have arguments sometimes, to the detriment of all (Re: First World War). There will always be disputes. There will always be legal problems. Some of them will go to court, some don’t. Either way, there will always be lawyers to be the peacemaker or as sower of discord. Because whether we like it or not, legal practice is a business. Has always been. With some strict ethical standards that some might choose to ignore but a business nonetheless. To sustain a business some measure of marketing is needed. Many ways to market a legal firm but the best way to do it is to do damn good job. Doing a good job speaks for itself. Never underestimate the power of word of mouth. Do a good job, people will talk. Do a half baked job, people will talk.

Specialization is another way to go about marketing your legal firm. Name an area of law and chances are there will be a household name in that area of practice. Easier to recall so and so firm that only specializes in beating off lawsuits from Tenaga Nasional Berhad or a so and so legal firm specializing in construction disputes than an all-rounder firm doing all sorts of things. In fact, a legal firm can list their specialization at the Malaysian Bar website to capitalize on their specialization. That would come in handy if your target market consists of laymen with legal problems. You would want to corner a market but in doing so, you are boxing yourself in. I speak of course of small to sole-proprietorship firms. This does not apply to Big Firms. Big Firms are like the Tesco of the legal practice. They cover most if not all practice areas with their teams of experts and they are everywhere. They have the resources to back them up and churn out paperwork like factories. They are as impersonal as the corporate clients they serve. They are not relevant to the discussion.  

I am talking about flesh and blood clients, real people, subjected to all the range of human emotions and fallacies including the tendency to have their preferences swayed by what was reported in the media and prevailing trends.

If your target market are fellow lawyers, then the approach ought to be different. A lawyer is expected to find files, work the files and ensure that you are paid on time for the work done. The finding of files part is strictly regulated by the Rules and are still largely a mystery to me. The remaining two are the two areas that a lawyer can find a gap to fill in. Working on a file, a litigation file requires someone to research the matter and draft the cause papers, someone to attend court hearings and/or trial, some one to attend to the client’s queries and generally handhold them through the whole process.

In small to sole-proprietorship firms, all these are attended by one lawyer. Most of a lawyer’s work are done in the background, away from the eyes of the client. This is where the support staffs come in for mid-sized to big law firms, the role might be invisible though important. For small to sole practitioner especially one just starting out, it’s a luxury. But, that is not to say that you cannot outsource the work piecemeal. Runners for document deliveries, MOB lawyers for court attendances, counsel work or just plain second chairing and so on. I have even come across a firm in the US doing nothing but churn out cause papers and doing legal research for fellow lawyers, which I think is useful. These are the kind of gaps that fellow lawyers can fill in or specialize in for small to sole-proprietorships practices.  

As to ensuring that lawyers are paid on time for the work done, that is a common problem and I have yet to hear of a common solution nor have I come up with a solution without having a law suit initiated to recover what was owed. Straight forward enough if it is individual client, impossible with a panel client. Perhaps a mechanism can be drafted where a lawyer's legal fees are guaranteed by a 3rd Party the way housing loans and business loans are guaranteed by SJPP and SJKP but what kind of a role a lawyer can play in this arrangement, none came to mind as of now.

Let us say that I am to specialize, in which area do I jump into? Industrial Court matters? Construction Law? Tortious matters? Commercial litigation? I am having too much fun doing all of it and with every case in these areas that I do the more I learn and the more I realized I needed to know. The more I realized this the more excited I become despite the fact that my practicing time is finite and knowing that I might end up as a Jack of all trades at the end of it.

But what is wrong with jacking it off anyway? I resent being boxed in. Being classified into a specific group. I have a growing number of (legal) fetishes, and my joy for them knows no bounds (ok, very wide boundaries).

Except it is not commercially viable they say. Just as cure-alls are derided as hoaxes, extremely wide practice areas inspire no confidence (they say). Impossible to cure it all just as it impossible to practice in a lot of areas without sacrificing your mastery over them. Is it now? Is that a statement of fact or a self-limiting belief passed down from one generation to another? If there can be polymaths a plenty in the age of quills and expensive papers then surely in this paperless, AI-driven, ZOOM-equipped age more than that is possible. It has to be.

It was said that civilization began when specialization or rather, division of labour became widespread. I say be damned to civilization! I don’t want to be a grass-combing peasant beholden to a Lord or Lady. I want to be that bon sauvage sucking on the fatty marrow of Life. I want to be that barbarian joyously battering down the gates of Knowledge and new areas of legal practice. If I can carry off both wisdom and plunder into the sunset then all the better for me.

I think that is enough rumination over specialization.

For now.  

 

 

Most-tradamus, most of the time.

Menurut laman web SciJinks yang dikelolakan oleh National Oceanic and Atmospheric Administration, the Yankee equivalent of our Met Department, Ramalan cuaca bagi tujuh hari mempunyai 80 peratus ketepatan. Ramalan cuaca bagi 5 hari pula mempunyai ketepatan sebanyak 90 peratus. Ramalan cuaca untuk 10 hari dan selebihnya selalunya betul. Tak ada peratus diberikan. Jadi aku pemahaman aku adalah, ramalan cuaca untuk 10 hari atau lebih dalam bahasa kasarnya; entahkan ya, entahkan tidak.

Ini menunjukkan dengan segala teknologi yang ada pun kita masih belum dapat meramal masa depan dengan tepat. Apa tah lagi cuaca. Eh, terbalik. Tak mampu meramal cuaca dengan tepat, apatah lagi meramal masa depan. (Looking at you, Monsewer Nostradamus)

Michel de Nostradame atau lebih dikenali sebagai Nostradamus adalah seorang physician, astrologer, apotek dan oracle (kata orang). Beliau dikenali kerana ramalan-ramalan masa depan berbentuk quartrain yang dibuat dalam karyanya Les Prophéties yang diterbitkan pada tahun 1555.

Kali terakhir ramalan si Nostradamus ni jadi sensasi adalah pada tahun 2001 bila tumbangnya WTC di New York pada 11 September 2001 dek serangan pengganas (katanya). Aku ingat sebab ada pakcik aku semangat usung buku The Prophecies datang ke rumah nenek aku untuk ditunjuk pada sanak-saudara yang kononnya peristiwa itu dah diramal.

Menurut Wikipedia, sumber rujukan awam yang sesiapa boleh edit, Quartrain pertama yang dikaitkan dengan peristiwa tersebut adalah quatrain VI.97:

 

Cinq & quarante degrés ciel bruslera,

Feu approucher de la grand cité neufve,

Instant grand flamme esparse saultera,

Quant on voudra des Normans faire preuve :

 

Atau dalam Bahasa Inggerisnya:

Five and forty degrees, the sky shall burn:

To the great new city shall the fire draw nigh.

With vehemence the flames shall spread and churn

When with the Normans they conclusions try.

 

Penerangan yang diberikan adalah seperti berikut:

"Five and forty degrees" was said to be the latitude of New York City (New York's latitude is 40°47'), and was interpreted as "40.5 degrees" (even though the decimal point had not yet come into use in the Europe of Nostradamus' day). "New City", similarly, was claimed to be New York (even though Nostradamus refers in this way to various "New Cities" whose names, unlike "New York", literally mean "New City", and especially Naples – from Greek Neapolis, "new city"); and most of the attempts to fit in the "Normans" of line 4 seemed contrived at best. While it is true that New York State, which has the same name as New York City, crosses 45° latitude, it cannot, of course, be described as a "new city", and so doesn't fit line 2 of the verse.[9]

 

Bagi aku baris terakhir quartrain tersebut ada sedikit mistranslation. Baris tersebut sepatutnya berbunyi:

When with the Normans they conclusions fry.

Ini merujuk kepada kepada perbalahan kecil di antara Amerika Syarikat dengan Perancis berkenaan Perang Iraq 2003 dimana Perancis enggan menyertai pakatan yang ingin menyerang Iraq. Pasca 9/11 timbul ura-ura yang tak pernah disahkan kononnya Iraq menyembunyikan pengganas Al-Qaeda yang bertanggungjawab kepada serangan 9/11 itu. Jadi bila Perancis mengatakan Merde! (pardon my French) pada dakwaan itu dan ajakan Amerika Syarikat untuk menyerang Iraq, keluar didalam akhbar yang ada kedai di Amerika Syarikat yang menjenamakan semula French Fries kepada Freedom Fries. Bila barisan terakhir itu diubah seperti aku tulis di atas, barulah boleh dikatakan quartrain itu tadi merujuk kepada peristiwa 9/11 itu.

Iya, ini adalah lawak bodoh dari aku.

 

Anyway..

 

Quartrain kedua berkenaan 9/11 adalah quatrain I.87 seperti berikut:

 

Ennosigée feu du centre de terre

Fera trembler au tour de cité neufve:

Deux grands rochiers long temps feront la guerre

Puis Arethusa rougira nouveau fleuve.

 

Atau dalam Bahasa Inggerisnya:

Earth-shaking fires from the world’s centre roar:

Around "New City" is the earth a-quiver.

Two nobles long shall wage a fruitless war,

The nymph of springs pour forth a new, red river.

 

Dan penerangan yang diberikan sekali lagi dari ihsan Wikipedia adalah:

‘’Here, once again, the cité neufve was claimed to be New York; au tour de had to refer to the Twin Towers (even though, in French, the word tour in the masculine – as it is here – has absolutely nothing to do with towers, but is part of a phrase meaning "around"); the Deux grands rochiers had to be the Twin Towers themselves; and Arethusa was said to be an anagram of "the USA". Once again, however, a rather more sober investigation by Brind'Amour[11] had already revealed (bearing in mind that, in French, faire la guerre aux rochers, or "to make war on the rocks", simply means "to struggle fruitlessly") that the reference was probably to Naples and its nearby volcano. Subsequent investigation by Lemesurier[3] and his colleague Gary Somai[12] suggested that it applied particularly to the Annales Cassini's report of its lava eruption of 1036, at a time when the Lombards of Capua and the Byzantine dukes of Naples were constantly at war over the city prior to the decisive intervention of the Normans. For 968, similarly, Leo Marsicanus had reported in the same annals that "Mount Vesuvius exploded into flames and sent out huge quantities of sticky, sulfurous matter that formed a river rushing down to the sea". Thus, given that Arethusa was the classical nymph of springs and rivers, with a well-known "spring of Arethusa" still visible today in the Sicilian port of Syracuse, the case for a "9/11" interpretation was evidently unfounded.’’

Yang ini aku tak ada komen melainkan, ada-ada je lah kau ni Nostradamus..

Kesimpulannya, ramalan-ramalan ini semua selalunya takkan menggunakan ayat dan bahasa yang terang dan mudah dihadap (case in point: Ramalan Oracle of Delphi pada Zeno). Nak kena ada berbunga-bunga, samar tapi tak samar sangat supaya yang percaya boleh buat interpretasi sendiri dan supaya yang skeptik dengan sekali pandang boleh kata: c'est de la merde!

 

Semalam aku kalah satu rayuan di Mahkamah Rayuan. Not welcomed but one of the probable outcome. Sudah tentu ada pasang harapan untuk menang tapi tak banyak. Mungkin sekitar 10 peratus pasal tak mahu kecewa sangat kalau kalah. Jadi bila YA Nantha Balan mengumumkan keputusan panel untuk menolak rayuan kami, aku tak terkejut pun dan anak guam pun tak terkejut pasal aku tak janji bulan dan bintang pada mereka walaupun itu hasilnya selepas tunggu 6 tahun. Walaupun aku rasa kami ada kes yang ampuh aku cuma janji apa yang aku tau. To give a damn good fight, and I did.

Ada satu pagi itu sekitar seminggu sebelum tarikh rayuan tadi itu, aku dalam perjalanan ke Mahkamah Shah Alam untuk satu pendengaran. Aku memandu dalam keadaan diantara mengantuk dan sedar seperti biasanya. Bezanya pada pagi itu entah macam mana kepala boleh terfikir tentang kenapa perkaitan undang-undang bertulis dan keinginan kita untuk meramal masa depan. Kita semua mahukan kestabilan. Kita semua mahu merancang. Oleh kerana itu kita semampu boleh ingin meramal masa depan. Bila boleh diramal, boleh dirancang, bila boleh dirancang, kebiasaannya akan ada kestabilan.

Setakat ini belum ada lagi hakim A.I. atau separa mesin. Masih semua manusia. Manusia ni pula rambut sama blonde/brunette/etc (kalau ada rambut lagi lah), tapi hati dan pemikiran lain-lain. Tak sama. Tak berapa nak predictable. All those big ideas about equality, fairness is one thing about the Law. My sleep addled brain on that morning drive to Shah Alam concluded that the main reason for the existence of the Law is to provide some measure of predictability in an unpredictable existence. Old news. I know. It took me this long to appreciate stare decisis and the Law beyond what was thought in law school. What can I say, I have a slow digestive system.

Sometimes things will go off the rails of predictability as provided by the laws as written and they will because that is just life.  Order 92 Rule 4 of Rules of Court 2012, Rule 105 of the Rules of Court of Appeal 1994, Rule 137 of the Rules of the Federal Court 1995 membenarkan Hakim-hakim untuk membuat keputusan diluar peruntukkan Mahkamah masing-masing dengan syarat ianya untuk menghalang daripada berlakunya ketidakadilan dan/atau penyalahgunaan proses Mahkamah kerana bila adanya sistem kehakiman yang kukuh, keadilan itu adalah hasil yang dijangkakan.

Semalam selepas selesai menerangkan pada anak guam apa yang boleh dibuat seterusnya dengan kes mereka (mereka tak marah kalah pasal nampak aku bersungguh berhujah demi kes mereka) aku ke gerai nasik lemak di luar Istana Kehakiman, menghadap Boulevard (tengah hari itu menjadi boulevard of broken dreams bagi aku). Kawan aku yang menjadi second chair berapi-api marah dengan keputusan dan juga dengan benda lain yang ada kaitan dengan rayuan. Aku yang dah hampir 2 minggu tak jadi orang cuma mampu gelak kecil dan senyum keletihan sambil suap nasik. Nak cakap apa lagi,

 

C’est la vie.

 

 

Ayam dengan Itik bercakap.

 

Most of the time, I get my points across be it in writing or verbally or by way of gestures. People understood me, to certain extent. But there are times when I feel strongly about something, words, writing or gestures just fail to convey how I feel and why feel such feelings. I feel the choking limitations of human language. When that happens, I think to myself perhaps that is how those with speech impediments or those with hearing problems feel when they try to communicate without the benefit of sign language. We are just left either shouting to make ourselves understood or forcefully gesticulating to each other trying to communicate. All to no effect. The meeting of minds are just not there. The satellites are just not broadcasting, the antennas are  not picking up the signal. 

Examples:

Trying to make our point to a person who has his or her mind made up. Shutters down and windows closed. What now?

Trying to get that client to settle their outstanding legal fees for work done.

Trying to reason with a mind clouded, nay, chock full of emotions.

It is frustrating. Infuriating.

Best we can do is cool down and to try and try again until the message gets across 

or just walk away and do something more productive with our life.