Oleh : Ariff Azami bin Hussein
A court battle is more like a tactical battle rather than a confrontational one. As an illustration or point of reference; it is more like a Championship Manager or Command & Conquer type of games, as compared to arcade style game such as Streetfighter and FIFA football series. It is more evident in a criminal trial where a mixture of skills are required. Compare and contrast it with a civil trial where almost all action are pre-documented and prepared before hand. As a result, a civillian (civil lawyer) may become a very meticulous, systematic and excellent in research; but on the other hand may curtail his progress in the advocacy part (let's face it I'm a criminalist, I'm definitely bias).
Having said that, actually we from the "crime world" can learn a thing or two from the "civillians". For instance, can we just simply prepare our case before we step into the battlefield like what civil lawyers do? Gone are the days where criminal law practitioners can go "melenggang" to court (except maybe Magistrate's or Penghulu's court). Even without thick documents involved, that doesn't mean we needn't at least read or find some references, authorities or maybe outline a skeleton submission before a trial begins (yes, I was taught by a learned DPP to prepare submission even before the trial starts).
Meaning to say, in a criminal trial, it demands a lawyer to know when to be offensive, when to opt for a defensive mode and when (pula) to simply apply counter attacking mode or even play safe mode (dok diam2 saja). You can't be confrontational all the time towards all witnesses, as there may come time when you will face a very stubborn and unshaken witness. Maybe you can try the persuasive or "kipas" approach to "bodek" the witness until he agrees with all your suggestions later.
The same goes to the approach that is applicable towards the bench. As we have already heard and being lectured thousand times before; we have to know the judge. Strategically speaking, when we appear in court with added knowledge of what are the likes and dislikes of the judge; we have an upper-hand already. The worst thing that could still happen will be most definitely beyond our control or experience, as we have diligently try to follow or comply with the likes and avoid or resist the dislikes.
It is when sometimes to be patient is better than to explode, and maybe being defensive (as is silent is golden rule) is far being a better option rather than to object everything under the sun (while actually exposing own weaknesses and giving enough clues for experienced opponents to rectify their problems). As in Malay saying; "ular menyusur akar takkan hilang bisanya" or "berundur tidak bererti mengalah" or you know lah what I mean.
I observe many criminal law practitioners are inclining toward quantity rather than quality. Maybe they are under misconception that the more they ask (or talk) in court, they are perceived as working extra hard (buat kerja) for their clients. Can't blame them totally though as some clients do ask why we talked less or didn't object in court. Be as it may, we should be conducting our own strategy in facing the court battle, and not just based on client's instruction per se. We are the general and not the gurkha OK. That's why more often than not, some lawyers are actually doing a examination in chief part 2 in their cross-examination, thus strengthening the prosecution's case.
In a nutshell, just like any other battle, court battle is something worth preparing for and certainly worth to be involved in it, provided that you have sufficiently prepared your arms and ammunition for the battle. Wassalam.
(Ehsan dari blog www.loyarberjurus.blogspot.com)