What is an Adversarial Legal System?
Refers to a legal system which assumes that, the pursuit of truth and protection of rights are best achieved through partisan presentation of competing interests. Mostly found in countries that use common law. The adversarial system aims to get the truth through the open competition between the prosecution and the defenses while the inquisitorial system generally aims to get the truth of the matter through extensive investigation and examination of all evidence.
Comparison of Adversarial System vis a vis Inquisitorial System
In an adversarial system all parties determine what witnesses they call and the nature of the evidence they give. The courts role is that of overseeing the process by which evidence is given. While in an inquisitorial system, the conduct of the trial is in the hands of the court. The trial judge determines what witnesses to call and order in which they are to be heard.
In an adversarial system the role of lawyers is active while in an inquisitorial system the lawyer’s role is passive. With regard to judges, the roles are vice versa to that of the lawyers.
In an adversarial system the judges pronounce judgment depending on the hearing, evidence or on the basis of examination & cross-examination while in an inquisitorial system the judge plays an active role for questioning and hearing the parties directly.
In an adversarial system all references are presented by the respective lawyers of both the parties while in an inquisitorial system references are also presented by the judge and they play an active role.
In an adversarial system the hearing, evidence or examination & cross-examination done by the lawyer get priority while in an inquisitorial system documents and information about the real facts get priority.
Shortcomings of Adversarial Legal System
Decision making may lack access to relevant information as single interest groups may exercise undue influence over the governing laws.
The assumption that lawyers role is simply to advance their clients’ interests may mis-describe a central aspect of the professional relationship.
The system is prone to misconducts such as fraud, perjury and knowing use of false testimony which may cause prolonged delays.
Adversarial ideologies and institutions have constrained the legal professions capacity in problem solving and thus it would be advised that the system should rethink of a way of providing remedial flexibility, expressing community values and enabling party participation.
Our adversarial preferences obscure the questions about the extent to which zealous representation and client confidentiality towards other values of the justice system.. For example, withholding information or aggressive cross-examinations. Witnesses may serve client interests at the expense of fairness to third parties and proper administration of justice.
Common Law Trial-We may or may not, in the course of Trial, arrive at the Objective Truth.
Consider the following scenarios:
Defending a guilty person. Guilty because evidence shows or the accused states so.
Cross-examining a witness whom you know is telling the truth
Pleading a technical defence against a just claim
Is not guilty the same as saying ‘innocent’?
Defending a Guilty Person and its Rationale
In every criminal justice system, the accused is always presumed to be innocent until declared guilty by a court of law. It is not the duty of the lawyer to judge, it’s the courts duty. What is the burden of proof in the criminal trial? Who discharges the burden of proof?
Suppose, says the lay moralist, that he knows the facts of the case; the very truth of the controversy are with the other side. How then can he as an honest man do otherwise than see to it that these facts are made known to the court? Is he not an "officer of the court" under a moral obligation which transcends every other to see that justice is done?
A certain legal scholar brought the following excerpt,
The youthful BOSWELL, contemplating a career at the bar, questioned Dr. Johnson: I asked him whether, -as a moralist, he did not think that the practice of the law, in some degree, hurt the nice feelings of honesty.
JOHNSON :Why no sir? If you act properly, you are not to deceive your clients with false representations of your opinion, you are not to tell lies to a judge.
BOSWELL: But what do you think of supporting a cause which you know to be bad?
JOHNSON: Sir, you do not know it to be good or bad till the judge determines it. I have said that you are to state facts fairly; so that your thinking, or what you call knowing, a cause to be bad, must be from reasoning, must be from your supposing your arguments to be weak and inconclusive. But sir, that is not enough. An argument which does not convince yourself may convince the judge to whom you urge it; and if it does not convince him, why then, sir, you are wrong, and he is right. It is his business to judge; and you are not to be confident in your own opinion that a cause is bad, but to say all you can for your client, and then hear the judge's opinion.
The author in relation to this further made his comments as follows;
There is no other concept of "criminal guilt" known to the theory of our law. The accused is constitutionally entitled to counsel. The advocate's duty is to insist that the state sustain the burden of proof which the law imposes on it with regard to the defendant's guilt. Again, the evidence against him is testimonial. Even real evidence (the alleged murder weapon, the gun or the knife) is mute and of no probative effect until its relevance and significance are demonstrated through the testimony of a human witness under oath. The defendant may claim his constitutionally guaranteed privilege and refuse to testify in his own behalf. It is the state's case against the defendant and not the defendant's case against the state which is to be tried. (Emphasis added)
Therefore in relation to this, it is the duty of the advocate to use his wits and skills i.e. Cross examination and production of defence witness to counter those of the state. The advocate should not however go outside the scope of the law, to the extent of telling lies or giving false testimony or abating perjury.
Cross-examining a Witness known to be telling the Truth and the Adversarial System
On the need to cross examine a witness whom is known to be telling the truth, the adversarial system believes that, cross-examination is necessary to establish credibility of the witness testimony. This implies that the truth may not be established with precision.
Barret states thus,
“The object of cross-examination is precisely to determine whether the witness has told the truth. When counsel is convinced that the witness has indeed told the truth, not ethics but trial tactics dictate that the cross-examination should be passed.
So if trial is about finding the truth (of which it may not be the case), the advocate then must pave way for truth to unravel or emerge by not watering down the truthful testimony tendered by the witness. In such instances it won’t happen, because the advocate seeks to advance the client’s interest first. The first call of duty is to vindicate his client.
The reason is that, the opposing counsel’s main aim will be to water down or tear the other opponent’s evidence to the extent that it will be inadmissible despite the truthfulness of such testimony. For example the testimonies of the minor (children) witnesses are always handled with caution. To this extent, it can be safely said that the advocate’s aim in conducting the cross-examination will not be to establish truth, but to discredit the person telling the truth or his testimony so that those facts which favour his client becomes more conspicuous to be taken by the court.
So where is the Truth in an Adversarial System?
The truth in adversarial system is believed to manifest itself when the opposing counsels argue in court before the judicial officer and make their cases.
Truth and the Adversarial System
Barrett states as follows,
Our adversary system is frankly based on the pragmatic assumption that the truth of the controversy between the parties to a lawsuit stands a reasonably fairer chance of coming out when each side fights as hard as it can to see to it that all the evidence most favourable to it and every rule of law supporting its theory of the case are before the court. In this legal combat each litigant is entitled to an advocate professionally bound, on the one hand, to exhibit in his client's cause "entire devotion, warm zeal and the utmost skill," and on the other hand equally obligated as an officer of the court to discharge his trust "within and not without the bounds of the law," honourably resisting even in the heat of battle the temptation to win by foul means or by "any manner of fraud or chicane. (Emphasis ours)
In this instance, it makes one believe that there are two truths in a trial. So the judicial officer is left to determine which one is more truthful. In reality, there can be no more than one truth. There is only one truth. In an adversarial system; as earlier on stated, the role of the judge is limited to that of an umpire, ensuring that the litigants present evidence in accordance with certain ground rules i.e. Rules of evidence and procedure.
The judicial officer cannot intervene to interrogate a witness unless he is seeking a clarification on the witness testimony. When all evidences have been placed on the judicial officers table, the officer can then exercise his authority and decide which version of the facts he prefers. He may come alive to the fact that some crucial evidences are missing, may be because the litigants/ advocates have failed to ask the right questions or call all the relevant witnesses.
In such an instance, there is nothing a judicial officer can do about it, the only thing he must make up his mind on is the evidence presented by the two adversaries. So have we found the truth?
Truth in Inquisitorial System
This is unlike adversarial system, in inquisitorial system; there it is believed that the truth of the controversy in a lawsuit is more likely to emerge through the independent inquiry of paid public officials, who owe no partisan allegiance to either side of the dispute.
In the quest for the truth the main reliance is upon the competence, thoroughness and fairness of the public inquisitors. The advocate's role is secondary or auxiliary.
Illustration: Case Studies
Republic v Edward Kirui [2010] eKLR
The accused, Edward Kirui, was charged with the offence of murder, contrary to section 203 as read with section 204 of the Penal Code, Cap 63 Laws of Kenya. The particulars of the charge, as set out in the information dated 6th February 2008, are that on 16th January 2008, at Kondele market within Kisumu city, Nyanza province, the accused murdered George William Onyango and Ismail Chacha.
The prosecution called 22 witnesses to testify against the accused; Edward Kirui. On the other hand, the accused called two witnesses; accused included to back up his case. Two witnesses identified the accused person and placed him in the crime scene. The two victims are also proven to have been at the crime scene at the material time when accused was there. The cause and nature of the death of the victims has been identified as that of the gunshots. The court has been satisfied that the person who shot the victims had malice aforethought hence culpable of being charged with murder.
The first prosecution witness identified the accused person as being present at the crime scene at the material time in possession of an arm/gun. The issue however was whether the gun which shot the two victims was actually the one which was in the possession of the accused person.
The gun issued to and retrieved from the accused person read the serial no. 2008378. This is different from the serial number of a gun which the firearm examiner expert tendered upon examination. The gun so tendered after examinations reads serial number 3008378. The bullet from the victim matches those from the one produced by the gun serial number 3008378.
The court after hearing both the prosecution’s and defence’s evidence held and state as follows:
On the basis of that legal authority, which is binding on me, I have no alternative but to find, as I now hereby do, that the prosecution has failed to prove that the fatal bullet was fired from the gun which had been issued to the accused. He was issued with an AK 47 rifle, serial number 2008378. However, the exhibit memo which he handed over to the firearms examiner ..., he cited the serial number of the gun as 3008378. This court is unable to reconcile those facts with the finding by the firearms examiner who concluded that the fatal bullet was discharged from a gun that was different from the one which the accused had. In the event, I have no alternative but to give to the accused, the benefit of doubt, because it is possible that the fatal bullet was not discharged from his gun. I thus find the accused, not guilty.
Observation
From the above case, the prosecution has failed to prove that the fatal bullet was fired from the gun which had been issued to the accused. Hence it raised a reasonable doubt. To that extent, it can be said that in a criminal trial, the question to be answered is: has the prosecution proven their case beyond reasonable doubt? It is not the question, “has the prosecution stated the truth?” If this matter was civil in nature, the prosecution would have won since it is based on a balance of a probability. As it is crystal clear, the difference between 2008378 and 3008378 is the prefix of first digits (that is 2 and 3) which may be explained away as a typographical error.
People of the State of California v Orenthal James Simpson Case No. BA097211
OJ Simpson was accused of murder of his then wife (Nicole Brown) and her friend (Ronald Goldman) on June 12th 1994 for allegedly having an affair behind his back. The jury found Simpson not guilty despite overwhelming evidence against Simpson including blood traces of his victims in his car and Nicole's’ blood on a pair of his socks.
Verdict of the Court
Not guilty in violation of Penal code section 187-A, a felony upon Nicole Brown Simpson, a human being. Not guilty in violation of Penal code section 187-a, a felony upon Ronald Lyle Goldman, a human being. A reasonable sdoubt was raised by the gloves which could not fit his hands.
Is not guilty same as Innocent?
Aftermath of OJ simpson case
Sharon RUFO Et al., Plaintiffs and Respondents, V. Orenthal James SIMPSON, Defendant B112612 (Rufo v Simpson). and Appellant, No. Court of Appeal, Second District, Division 4, California.
After the criminal trial, the Brown and Goldman families filed a civil lawsuit against Simpson for the wrongful deaths of the children. On February 4, 1997, the jury found Simpson responsible for both deaths. The families were awarded compensatory and punitive damages totaling $33.5 million, but have received only a small portion of that.
DIMENSION 2: The human animal is far more video than audio
Lawyers are perceived to be the masters of words. Words, however, are simply one part of the communication process. Psychological and philosophical studies have concluded that human beings are visual oriented than hearing. For instance, findings reveal that during communication- 60% of a message is conveyed by body language and visual appearance generally and 30% is conveyed by tone of voice. The findings reveal that its only 10% of a message comes through the words used and further that only 10% of what people hear gets remembered. Interestingly, if they see something connected with what they are hearing, as they are hearing it, they remember 50%. Some other experiments suggest that it is over ninety percent of the communicated meaning of a message is produced by the nonverbal communication. For instance, a research by Mehrabian, a great psychologist, indicates that 93 % of a message is from the nonverbal part of the communication. The research found that the message received from the verbal channel is only 7 %, while the bulk is non-verbal cues where 38 % is from the vocal cues and 55% from the facial expressions.
What the above findings implies is that non-verbal cues and general body language plays a vital role during trial advocacy. From the above illustrations, the nonverbal aspects of communication are widely recognized to be at least as important as the words, if not more important. The following are some of non-verbal cues applicable in trial advocacy.
Dress Appropriately
The LSK Code of Dressing, 2013 sets out the dress code for advocates in practice. It can be summarized that men are expected to be in conservative darkish suit and tie. It is evident that for women, the choices vary so much that it can be easy to make the wrong judgment call. But it is always best to err on the side of being conservatively dressed. In 2013, a Tennessee Judge issued a memo about female lawyers adhering to the dress code after one female attorney appeared before him in a sleeveless blouse. While urging the women lawyers to wear less revealing outfits, she said;
“The unanimous opinion was that the women attorneys were not being held to the same standard as the men. I have advised some women attorneys that a jacket with sleeve below the elbow is appropriate or a professional dress equivalent (…) Your personal appearance in court is a reflection upon the entire legal profession.”
Notwithstanding the dress code guidelines by LSK, some dress styles are generally held to create not good impressions. Therefore, it suffices that since we are focusing on nonverbal cues of communication (due to inherent nature of human beings being visual) to go beyond scope and dress requirements in the LSK Dress Code. For instance, we find that during official duties like trial advocacy women are generally discouraged from - hair that is over styled, teased, or moussed (It is best to keep hair conservative styles), dangling or large earrings, too many earrings or rings or necklaces or bracelets, too much make-up, too much perfume, exposed undergarments, very high heels or glittery or silver or gold or open toes shoes, showing of tattoos or body piercings- cover with clothing or make-up if possible. Equally men are discouraged from donning - Earrings or bracelets or pinkie rings or similar jewelry, unbuttoned shirts, leather ties, showing of tattoos or body piercing- cover with clothing or makeup if possible.
Being well groomed, well dressed and dignified does not cost a dime. The same goes to your client, your witness and your co-counsel. Of course every lawyer recognizes that you don’t persuade judges by simply pointing a suit at them. But it’s a start people often judge from appearance and judges judge people. Clothes can suggest, connote, persuade, insinuate or indeed lie and apply subtle pressure while their wearer is speaking frankly and straightforwardly of other matters. Mark Twain once said that “clothes make the man; naked people have little or no influence in society.”
For men:-
Wear a dark 3 piece or 2 piece suit & keep it buttoned.
Cover your front stud at all costs
Have a handkerchief in your breast pocket and not pens.
Do not wear loud tie
Make sure your shoes are clean
Wear your hair as you want provided it is clean, tidy and decent. Hairstyle is a vital component of dressing and grooming.
For Ladies;
Wear dark clothes
Keep the jewelry to a minimum
Avoid having your hair look like a TV advertisement
Avoid pronounced or soap opera like make up that attracts undue attention, interpretations and innuendo. Also, wear minimal cologne of good quality.
Please remember that the whole business of your appearance does matter. When starting out as an advocate, you face enough difficulty so do not add more to your plate by scruff characteristics or flashy dressing.
Andrew Barney Khakula v Law Society Of Kenya & Another[2013]eKLR
According to the petition dated 24th January 2013, the petitioner, an Advocate of the High Court, was seeking orders that the Law Society of Kenya Dress Code issued by the Council of the Law Society of Kenya on 21st January 2013 be declared unconstitutional on the basis that it violates Article 47 which guarantees fair administration action. The petition was opposed by the respondents on the basis that the Council of the Law Society is empowered under the provisions of the Advocates Act (Chapter 16 of the Laws of Kenya) and the Law Society of Kenya Act (Chapter 18 of the Laws of Kenya) to issue regulations and directions regulating the conduct of advocates including the manner of dress in court. In so doing, the duly elected Council of the Law Society acts on behalf of the members. What the petitioner was seeking from the court is a review of the Advocates Dress Code which gives guidance to Advocates concerning matters of dressing for purposes of appearance in Court in Kenya. The judges was satisfied that the petition did not disclose a cause of action as the petitioner did not state how his rights had been violated or identify the manner in which the dress code infringed on his personal rights and fundamental freedoms. The petition was dismissed as frivolous with costs.
In conclusion, appropriate grooming and dressing helps an individual to not only create good impression but also feel part of his colleagues, and this can make him calmer and confident which for trial advocates is in courtroom.
Don’t be seen to in too friendly a relationship with your opponent.
Ambrose states that clients come and go but professional colleagues remain a permanent companion therefore should be dealt with special attention and action. But when in court even if you are the greatest of friends you have a duty to conceal this. Just be courteous and pleasant but not friendly.
The reason is if the court is to see you being overfriendly with your opponent then in the next few minutes you are in an adversarial situation with the same person, they would wonder about your sincerity. Questions would be is your advocacy some sort of act in court? Some kind of a game? Do not give either the court or the tribunal a reason not to trust you.
Don’t laugh, smile or joke without including the tribunal.
Take into account the age, sex mood, general demeanor, orientation of the court together with your ability and gift to pass it through. Common sense applies in this respect. A failed joke is embarrassing and annoying and can destroy your case or other chances. It’s off putting to see laughter before you yet you can join the fun and have no idea what is going on. One could choose to completely avoid jokes as they may sound insensitive to the court, the opponent and also the audience. Avoid laughing as the court may think that the laughter is connected to the orders or directives being offered on the case. It may also seem that the court is wasting its time while handling the matter and also feel undermined.
Appear at all times to be absolutely sincere.
One should avoid using lies to the court as it ruins ones reputation and the court may make a conclusion about you since you are used to lying.
Things that make you sincere as an advocate are:
Honoring all your undertakings
Not deceiving the court by stating facts and law that you know are untrue.
Supporting a client when you know they are deceiving the court, etc.
If you fail in this even one time then you undermine your chances for the whole of the rest of the case.
Never convey any visual signal that you don’t intend to convey
Think long and hard before you decide to express an emotion to the judge. A visual signal should be avoided especially where one is conducting a trial. This may make a witness think that they are giving the wrong evidence or may make him/her contradict his/her evidence. The signal may also mean something different to the court. Body language communication is conveyed through the use of gestures, postures, facial expressions, eye movement or any other physical form. Never use your body language to convey a message you don’t intend to convey. It’s misleading if again your sincerity may be doubted.
Use of Visual Aids
Request the use of easels, chalkboards, document cameras, video monitors and recorders, projector screens, illustrations and other equipment well in advance so that they may be set up in advance, when the court is not session. Don’t waste the court’s time, if you are going to display evidence be certain that the medium of display is ready for use. A case can be built or destroyed on this. Such use of visual aids and illustrations do help the audience and also the court to remember more on the case than the story narrated.
The judge may have trouble envisioning what the crime scene looked like if your detective just describes it, but they’ll remember the crime scene photos (especially if the corpse is still lying there). They may not remember all the details of your argument that an opposing expert witness's opinions are purely subjective, but they’ll remember the story of Goldilocks and the three bears. Anything that you can reduce to a drawing, chart, or computer simulation should be presented that way.
There are limitations to the use of visual aids of course. The visual aids must be used to fairly summarize the evidence, they cannot be misleading and they cannot be argumentative. You could not for example produce a chart captioned, “Three reasons not to believe the plaintiff.” Visual aids should be shown to the opposing counsel before the opening statement begins. You should also show visuals to the court and obtain advance permission using them.
Eye Contact
Eye contacts helps in monitoring (assessing the behavior of others), regulation (it indicates when to speak) and it is also expressive – it shows how you feel about something. Therefore, maintaining eye contact with the tribunal or to the court is important. It should be differentiated from perpetual staring. Eye contact depicts honesty and conviction. The eyes are figuratively the mirrors of the soul. Eye contact is one of the best indications of positive attending and the steady eye contact of a trial advocate to the presiding judge(s) should not be entirely distracted by the documents on the advocates hand or desk when referring. It further allows the trial advocate to see the body language of the bench, witnesses and the opposing counsel, and helps him to regulate the interaction between him and the court. Research shows that lack of eye contact and glazed-over or defocused eyes can indicate the listener's mind is elsewhere and not on the speaker's message.
When you present an opening statement or a closing argument, what do your eyes say about you? There are three reasons why one should maintain eye contact. First, eye contact helps the judge to trust you. Growing up you probably heard of the old age that don’t trust someone who won’t look you in the eye. Secondly, eye contact helps you connect with the jury and lastly, it lets you read the judge. Direct eye contact helps demonstrate sincerity, sympathy and support. Eyes make passionate non-verbal expressions as well as to warn. Looking away in most instances connotes fear and dishonesty.
Use of appropriate tone
This encompasses the voice you project during communication. Ensure you’re not too high and not too low. Vocal cues emotion, credibility, perception and comprehension. Appropriate tonal variation ensures that while speaking on an aspect, a trial advocate considers the volume and enunciation, pace and rhythm, pitch and inflections, pauses and fillers. For instance, a too high or shrilling voice could be irritating while a flat low tone could create boredom.
Posture
One of the key to nonverbal attending skills is posture. Posture refers to bodily positions. Unlike gestures and body movements, body posture in this context is a comparatively static position. The human body can move into an almost unlimited number of different postures. Trial advocates should pay attention to their body posture they when appearing in court before a bench it is a method of communicating. Each region of the body can be oriented in such a way that it invites, facilitates, or holds an interpersonal relation. Or, it can be oriented to break off, discourage, or avoid involvement. Some writers are of the view that body posture should be right before, during and after courtroom. For instance, Barkai’s Article studies the body posture in relation to advocate-client engagement and brings these the following findings;
Torso body posture
During client-advocate interview, the lawyer should be squarely facing the client. This position best communicates receptivity. The lawyer's shoulders should be parallel to the lawyer's hips and parallel to the shoulders of the client. In other words, there should be no trunk rotation because any angled position, especially between 45 and 90 degrees, is said to indicate a lack of interest while turning to the side is considered lessened involvement.
Open body position
When the term "body language” is used in everyday speech, the behavior that is most often observed and interpreted as a nonverbal communication is the position of the arms. Depending on whether the arms are crossed or uncrossed, the body posture can be described as closed or open. An open (uncrossed) posture is a signal that the interviewer is open to what the client has to say and is willing to communicate directly with the client. The posture of arms crossed in front of the body is correlated with several negative mental attitudes including opposition, protection, defensiveness, and disinterest. This crossed, negative posture is not limited to the arms; crossed legs carry the same meanings as crossed arms. Open legs, like open arms, are associated with a nondefensively, accepting attitude. Arm and leg positions can affect the client's perception of the professional's accessibility. In the studies, professionals with open postures (uncrossed arms and legs) were judged to be warm, accepting, and empathic.
Leaning forward
Leaning toward the client in a slight forward lean is considered a natural sign of involvement, interest, and persuasiveness. The forward lean posture is also very good for making observations. The close distance provides a better opportunity for the lawyer to observe minute changes in the client. The forward lean also narrows the field of view and therefore reduces other distractions. If a lawyer does not move in too close and invade the client's personal space, the forward lean should increase lawyer-client rapport. Sitting erect or leaning backwards from the client can have a negative impact on the relationship and can inhibit the interview.
Professor Barkai findings can be summed up in this context that a lawyer’s body posture should be as follows; Squarely facing client or the presiding officer in courtroom, open body position (arms or legs are not crossed), leaning slightly (but not holding something for support) to the client or presiding officer, maintaining eye contact to the magistrate or client, and relaxed body position or composure.
DIMENSION 3: PEOPLE DO NOT LIKE LAWYERS
Lawyers’ perception
Why do lawyers defend criminals whom they know are guilty? Does this make them liars?
There is a common adage that ignorance of the law is no defense. What this means is that an accused person cannot be heard to argue that he was not aware that the behavior/conduct he was engaged in was contrary to the law. The presumption is that everyone knows the law; one answer to these questions is that lawyers do not know the guilt of their clients, because the accused has not — until after trial — been found guilty beyond reasonable doubt. It is irrelevant if they suspect because under our legal system everyone is entitled to be properly represented and to have their case put as best as it can be put with the burden of proof resting on the prosecution to prove its case. Unfortunately, not everyone can be a lawyer and this makes lawyers and legal services a necessary evil, regardless of the public perceptions about them.
Ray Simon said the following about lawyers in their text Lawyers and the Legal Profession:
They warned law students that they are about to enter a profession which is under constant attack. They said “lawyers are not popular, they are not trusted; lawyers are not respected. You are embarking on a career that will lead you to ridicule, criticism and suspicion, your work will seldom be understood or appreciated by your friends, by the public or even by your own clients.” they go on to say that everywhere you look lawyers are under attack, they are under attack in court, you will be under attack in the press, in the business world, banks for example have been trying to see if conveyance work can be done by other people other than lawyer. They are attacked in the legislature parliamentarians will attack the profession, there is a scheme to reduce lawyers from insurance claims the arguments being that lawyers are stealing clients’ money. The suggested two check system was an attack on lawyers so that the decretal amount could go directly to the client since a lawyer is likely to embezzle client’s money.
Remarks of Sir John Simons “The public regards the lawyer as an unprincipled wretch who is constantly engaged in the unscrupulous distortion of the truth by methods which are entirely discreditable and for rewards which are grotesquely exaggerated. He is expected to be a hypocrite and if he is a successful one he will be liberally paid for doing what was expected of him. If he is just, it is only because he has no temptation at that particular moment to be unjust.”
Why don’t people like lawyers?
This has something to do either with the nature of the lawyers’ profession or the workings of the legal profession or it has something to do with impropriety on the part of advocates or both. This is in the sense that when one is representing a criminal, not many people will understand why one is representing a murderer for example. A lawyer has a duty to use tactics that are legal, honest and respectful. This duty is often referred to as the duty of candor. Under this umbrella of a lawyer's duty to the court, lawyers are primarily responsible for ensuring that they do not employ strategies that will mislead the court; this includes misleading the court on evidentiary and legal points as well as making use of tactical strategies that are likely to affect a case.
NEWSPAPER REPORTS ON PUBLIC PERCEPTION OF LAWYER
AG Muigai to publish names of 32 rogue lawyers, Wednesday January 18 2017 by Peter Leftie
A statement from Attorney-General Githu Muigai, issued on Wednesday, stated that the list to be published in the official Kenya Gazette includes 32 lawyers facing suspension and those who have been struck off the Roll of Advocates for professional misconduct.
The list, the statement said, was compiled by the Advocates Complaints Commission (ACC), which handles complaints relating to professional misconduct in the legal industry
Various acts that can lead to judgments of professional misconduct include breach of client confidentiality, misappropriation of client money and undercutting or charging less than what is prescribed by law in the Advocates Remuneration Act.
With this perception, that people do not like lawyers, in mind. There are certain rules that an advocate should adhere to make them more trustworthy. These rules are what Keith Evans refers to as survival skills. They include:
Stick rigorously to the truth
As an officer of the court, an advocate should only use proper and lawful means to promote and protect the interests of his clients. Advocates must not knowingly mislead the court. He or she should not fabricate evidence, coach witnesses to deceive the court or support any form of perjury. Lawyers’ arguments must always be credible or at least plausible, as lawyers we believe that we are rational and for the most part we try to act rationally. Therefore any argument that is less than logical or does not contain at least a modicum of logic stands little chance of being accepted by a witness.
Commentators have argued that the lawyer's responsibility as an officer of the court imposes a duty to ensure that the outcome of a proceeding be truthful. Judge Frankel recommended a new disciplinary rule that would "compel disclosures of material facts and forbid material omissions rather than merely proscribe positive frauds" by attorneys engaged in litigation.
Professor Subin argued for a rule that, in a criminal trial, a defense lawyer should not be permitted to offer a false defense by disputing a fact that the attorney knows to be the truth.
Despite an overbearing demand for a lawyer to be a “hired gun” to his client, one must remember that his duty to the profession is paramount.
Lawyer’s duties are not carried out in a vacuum. While facing financial and competitive pressures, lawyers must fulfill and balance their duties to the client, opposing counsel, the administration of justice and society.
Rule 12 of the LSK digest provides that;
The Advocate shall at times maintain the highest standards of honesty and integrity towards clients, the court, colleagues, all with whom the Advocate has professional dealings and the general public.
The rationale is that honesty and integrity are the hallmarks of a member of the legal profession. By adhering to the highest standards of honesty and integrity a member of the legal profession will promote trust in the profession. Dishonorable conduct on the part of the Advocate either in private or professional life will reflect adversely upon the Advocate, the integrity of the legal profession and the administration of justice.
In Abraham v Justsun, Lord Denning MR explained counsel‘s duty as follows:
“[It is an] advocate‘s duty to take any point which he believes to be fairly arguable on behalf of his client. An advocate is not to usurp the province of the judge. He is not to determine what shall be the effect of legal argument. He is not guilty of misconduct simply because he takes a point which the tribunal holds to be bad. He only becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point and thereby deceives the court.”
In an article by The Standard News Digital on March 13th 2017, The Advocates Complaints Commission has expressed concern about the rise in the number of complaints by the public against advocates. Beauttah Siganga, the ACC chairman, said they have received more than 600 complaints against the over 13,000 which represents 10% of all registered lawyers in the country. He urged the advocates to handle their work with integrity and uphold professionalism and honesty, warning them against swindling the public on their hard-earned money.
An advocate should not knowingly mislead the court. In the Australian case R v Stamos It was held that whilst defense counsel is not r required to disclose information, he/she must not mislead the court by providing false or inaccurate information, nor fail to disclose material information. In an exhaustive judgment, Flaux J found in Boreh v Republic of Djibouti that the court had been misled by a solicitor and his client both at the without notice stage, when applying for a freezing injunction, and then subsequently inter parties. Even when challenged, the deception of the court, and the other party, was maintained.
A lawyer also has a duty to maintain an honest relationship with opposing counsel. The failure to fulfill this obligation is demonstrated in LSBC v. Jeffery. In that case, during the course of the litigation, a court official instructed a lawyer that the trial, which was scheduled to begin in three days, had been taken off the trial list. The lawyer undertook to inform opposing counsel. However, in the hopes of reaching a settlement with the defendant, the lawyer did not tell opposing counsel immediately but instead sent a revised offer to settle. Opposing counsel subsequently discovered from a different source that the trial had been adjourned. The discipline panel held that the lawyer was under an obligation to the court to promptly pass on the information. It rejected the argument that this was "a situation analogous to that of a lawyer possessed of information developed during the adversarial process for the use of his client."
Misleading on Evidentiary Issues.
A lawyer cannot knowingly offer or rely on false evidence or misstate evidence. Misleading the court includes actions such as knowingly misrepresenting or misstating the facts in argument, inducing a witness to state misleading evidence and knowingly maintaining a false pretense.
An example of the court invoking or enforcing consequences for submitting false evidence includes R. v. Wijesinha. In that case, the Supreme Court of Canada upheld a criminal conviction for obstruction of justice after a lawyer had knowingly submitted false declarations to the Law Society. The lawyer was being investigated by the Law Society pursuant to allegations that he offered to pay a referral fee to a police officer each time a new client was retained following a failed breathalyzer test. The lawyer prepared declarations for the police officers and three clients, portions of which were false, and submitted them to the Law Society for its investigation.
Misleading the Court on Legal Issues.
Corresponding to our duty not to knowingly mislead the court on evidentiary issues, a lawyer cannot misstate the law. Lawyers are under a positive duty to make full disclosure of all the binding authorities relevant to a case. This means that all such authorities on point must be brought before the court, whether they support or undermine the position being argued by that party, even if opposing counsel has not cited such authority. This element of the duty includes drawing a judge's attention to any legal errors which have been made so that they can be corrected. This duty, however, should not be misconstrued as requiring the lawyer to present a disinterested account of the law. In fact, lawyers are obliged to distinguish those authorities which do not support their client's position. Thus, while a lawyer does not need to assist an adversary and is permitted to be silent on certain matters, they are not permitted to actively mislead the court. This obligation applies to contested and uncontested cases.
Charles Curtis famously made the point that, "I don't see why we should not come out roundly and say that one of the functions of a lawyer is to lie for his client .... A lawyer is required to be disingenuous."
Don’t appear to be manipulative
Manipulation refers to taking advantage of a person’s weaker state of mind. It may take the form of undue influence, coercion or isolation. Lawyers have also been accused for using some other techniques meant to induce the judges to evaluate evidence illogically. Lawyers can produce this illogic by confusing the meaning of evidence or distorting the judges perception of it.
An advocate must not assist in any illegal or improper behavior. This includes an obligation not to engage in any deception of another party by ones Client.
In Flower and Hart v White Industries (Qld) Pty Ltd the full Court of the Federal Court held that an abuse of process occurs when proceedings are brought not to vindicate a legal right but for some other purpose. In that case proceedings had been issued and maintained with a view to securing a stronger commercial bargaining position advocates ought not to advance cases not supported by evidence.
The advocate must not abuse his position by making allegations the sole purpose of which is to harass, embarrass or intimidate a witness. The advocate must not become the instrument by which publicity is obtained for allegations which are scandalize or calculated to vilify, insult or injure the commercial or personal reputation of any person.
Rule 8 of the LSK Digest
The Advocate is an officer of the court and therefore the Advocate shall discharge his/her duty to represent the client in adversarial proceedings by fair and honorable means and without illegality.
Rule 8 of the Advocates (Practice) Rules makes certain provisions for the Advocate’s conduct in the context of adversarial litigation. The rule prohibits the Advocate from:
Appearing as a witness before any court or tribunal in a matter in which he has reason to believe that he may be required as a witness to give evidence;
Coaching or permitting the coaching of any witness in the evidence he will give before any court, tribunal or arbitrator; or
Calling to give evidence before any court, tribunal or arbitrator any witness whom he knows to have been coached in evidence without first informing the court, tribunal or arbitrator of the full circumstances.
Coaching of witnesses is highly prohibited. An advocate is prohibited from conversing in any manner when he is being examined by the opponents advocate. Coaching denies the court the ability to get credible evidence in dispensing justice.
As Lord Justice Judge (now Lord Chief Justice) pointed out in R v Momodou [2005] EWCA Crim 177, prohibition of coaching does not simply protect against mendacious clients with over-zealous lawyers. The risks of innocent contamination of witnesses are significant:
"The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training. Even if the training takes place one-to-one with someone completely remote from the facts of the case itself, the witness may come, even unconsciously; to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events."
Manipulation by advocates might be done through various means
Tampering with evidence
Manipulating the court/jury
Manipulating witnesses (coercion, badgering, threatening)
Trial by media is the most pertinent of tactics employed by advocates to manipulate the courts in coming up with a favorable outcome as is evidenced in a number of trials as was in the O.J Simpson case with an estimated 95 million viewers nationwide.That amount of audience had such a bearing on the courts and jury meaning that the court was playing to the public gallery and indeed it’s quite possible that it had a bearing on the conclusion and finding of the case
Don’t sound like a lawyer
Through conduct of advocates, there are certain perceptions that emanate. Keith Evans explains that survival of a lawyer depend on being as human as possible. Legalese also comes into play. Advocates are at a better position of acquiring better information from both clients and witnesses. People tend to relate better when they know you can understand their struggles. Hence advocates should always try and humanize the proceedings. This can be done through;
1. Reference (or Create) your own Common Ground
The basis for communication and persuasion is a sense of identification -- the perception of salient common ground between speaker and audience. Mentioning shared experiences, circumstances, beliefs, and values builds a connection that is a strong basis for credibility. As long as litigators can find a moment where it feels relevant (oral voir dire time works well), you should share some personal information about yourself. Showing that the attorney has a life outside of the law and beyond this case can help to show that you are a person and not just "the lawyer." Sharing some of those humanizing details with the jurors also increases the chances of uncovering some similarities between you and your target audience.
2. Start with What They Already Believe
Successful persuaders don't build a position out of whole cloth and present it fully-formed to their audience. Instead, they're able to shift their audience's beliefs, usually subtly and over time, by grafting their preferred positions onto the existing views of their target audience. Researchers have found that even conspiracy theorists -- those with extreme and unverifiable theories about the world -- can be converted if the advocate consciously adapts and incorporates some of the assumptions that they're making. It's known as the rhetorical technique of the enthymeme: building a position by adapting a premise that your target already accepts. Building in phrases like, "You may think" or "We all know," helps to establish a human connection between you and your audience.
3. Tell a Story
Stories are fundamental to the way we understand and are persuaded by new information. Particularly in a trial context, jurors want to develop their own version of what happened, and why, and with what consequences. The reason that the story model works is because a story uniquely binds speaker and audience. Probably dating back to the time when we as a species sat around a common fire pit every night, there is something essentially human about the storytelling setting. It binds both the teller and the listener in a common context, a shared universe of characters and a cohesive plot line. It engages, and that helps to build a human bridge between you and your audience.
4. Appeal to Common Values
Even in an age when differing values, attitudes and beliefs seem to form a wide chasm between individuals and groups, there are still, at an abstract level at least, some common values that bind us together. University of Virginia social psychologist Jonathan Haidt, for example, has been researching moral judgments over the past decade and a half, and has developed an extensive dataset documenting the existence of five common moral foundations that are widely shared across the political spectrum. By identifying and speaking to one or more of those core values as they relate to your case, you are tapping into the moral commitments that form the substructure of community. Reminding your audience that "I believe what you believe" is an effective way of referencing your common human conditions.
5. Don't Condescend
Too many lawyers, adapting to jurors means "speaking their language." When that means removing legal jargon and communicating simply and directly, that's a good thing. But when it means speaking to jurors as if they were children, or as if they lack the basic ability to understand and evaluate what they hear, then it's a very bad thing. Litigators should definitely adapt, especially in language level, but should not risk conveying the impression that they have low expectations or a negative perception of their audience (see "second persona"). Both in what you say and how you say it communicate respect and trust, not contempt.
6. Use humor (But not Jokes)
The classic way of breaking the ice is to rely on a laugh or a smile, or maybe just a friendly expression. Humor can be an important shared emotion, a way to bridge differences. The trial lawyer, however, can't afford to look like they're not taking the process seriously, or not appreciating the time provided by the jurors and the court. For that reason, planned jokes are out. They risk looking too premeditated and they often fall flat. A line that would be funny at dinner or in a bar won't necessarily play well in the tense and adversarial courtroom atmosphere. For that reason, rely on naturally occurring humor, not jokes. When circumstances provide you with an excuse, share a laugh or a smile with the jury.
7. Admit Error
Nothing says "I'm human" like admitting to a weakness. Particularly when it regards a problem that jurors are likely to hang on you anyway, offering an admission and apology where appropriate can be an effective way to surprise your jury and encourage them to rethink any assumptions they may have made about you or your client. Obviously, counsel needs to think carefully before offering either the reality or the appearance of a concession of liability. But give it serious thought: Research (see Boully, 2008) has shown that apologies,
when they're sincere and complete, lead to more positive judgment and less motivation toward anger and punishment.
CONCLUSION
David W. Scott, Q.C. set this out as follows:
The Bar is independent of the State and all its influences. It is an institutional safeguard lying between the ordinary citizen and the power of the government. The right to counsel, which as mentioned, is inter-related with the law of privilege, depends for its efficacy on independence, in order to fulfill the heavy responsibilities imposed on lawyers as officers of the court, a meaningful and practical environment of independence is essential. It is always within the framework of this relationship that the commercial interest of the client and the lawyer's interests must give way to the overriding duty to the court. This is not an obligation shared by other professionals...Our duties as officers of the court could not possibly be discharged other than in an environment of total independence
The legal practice is a unique practice that lays the very foundation to justice and fairness and as such though we are bound by laws and statutes ,our behavior and conduct ,none the less, must be more than that stipulated and we must go a distance further and impose on ourselves to not only conduct our affairs in a manner that exudes confidence in the public but go a step further and communicate to the citizenry what the legal practice is in order to cast out any fears and build up the public knowledge of the law.
DIMENSION 4: TIME
Professionalism equals punctuality
It is important for an advocate to be in court on time, because being late can cause inconvenience and waste time for the court.
In addition to wasting the courts time, being late projects a lack of respect for the court. The court should not have to be sitting idle, waiting for an advocate to arrive at their convenience.
When in trial, make a habit to get to court before your opponent every day, your adversary will perceive you as ready and confident.
Being late leaves an impression that a person is irresponsible and unprofessional.
Aim to arrive at least 30 minutes before the time set down in the cause list. The other side may have spring last minute surprises which need attention.
An advocate should be punctual in communications with others and in honoring scheduled appearances.
An advocate should arrive sufficiently in advance for trials, hearings; depositions or other scheduled events so that the preliminary matters can be resolved.
If for some reason an advocate cannot make it to court or will be late they should promptly notify the opposing counsel and the relevant court authorities.
An advocate should promptly notify the court when his client or witnesses when he/she is aware that they will be late to court or a scheduled event.
Tardiness is a breach of an advocate’s duty to the courts because it among other things causes delay and disruption to the court process.
Tardiness affects administration of justice.
In the case of LSUC v Ducas
The law society hearing panel found, inter alia, that the lawyer had breached his duty to the court by appearing 25 minutes late for his own motion by which time the motion had been dismissed.
TIP: Be so punctual that the judge can predict the rising and setting of the sun by your comings and goings.
Oxygen Principle (Overriding Objectives)
The oxygen principle was introduced into the Kenyan legal system through the Statute Law (Miscellaneous Amendments) Act of 2009 which amended the Civil Procedure act and the Appellate Jurisdiction Act and the constitution of Kenya 2010 to provide for the interpretation and application of the various provisions of the acts.
The amendments in Section 1A, 1B, of Civil Procedure Act and 3A and 3B of the Appellate Jurisdiction Act article 152 (2) (d) of the constitution of Kenya 2010 provide that the major objective of the oxygen principle is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes and appeals governed by the Acts.
The court of appeal called to apply the oxygen principle in;
kamani v kenya Anti -corruption Commission
In this case Deepak Chamanlal Kamani, the respondent in the appeal, had applied for the appeal to be struck out on a technicality. The technical objection raised by Kamani was that some primary documents, including the handwritten notes of two trial judges, has been omitted from the appeal record. Kamani therefore argued that the appeal was invalid and should be struck out. Before the amendments, the court of appeal had consistently ruled that the omission of primary documents in the appeal record was fatal to an appeal, which would have to be stuck out as a result. However the court considered the new amendments which introduced the oxygen principle. It went to consider what was likely to happen if it proceeded to strike out the appeal, a and found that the common experience was that whenever an appeal was stuck out, the appellant would invariably seek leave to file a fresh appeal, this would lead to an increase in the costs pertaining to litigation, as well as a waste of judicial time and resources. The court found the unnecessary wastage of time and costs wrong. The court therefore found that the approach that it must take was not to strike out the appeal automatically, but first to examine whether striking out will be in line with the oxygen principle. The court therefore declined to strike out the appeal.
Hunker Trading Company Limited vs Elf Oil Kenya Limited
In this case, the applicants had applied to the High Court for a stay of execution of a judgment and decree in favor of the respondent. The court granted the stay but ordered the applicant to deposit money in an account to be opened in the joint names of both the applicant and the respondent advocates. The applicant did not comply with the order and filed a notice of appeal.
The court held that the act of disobedience to the High Court order had violated the operation of the Oxygen Principle since it involved management of court resources which entail useful and non-wasteful management of the resources which included time.
S.B.J Stevenson vs Mandy
The court held that the principle included an analysis of the appropriate amount of court’s judicial resources to be used in order for the case to be tried and determined. For instance, a frivolous appeal might not be allowed to go to hearing on the ground that it would be wasting the courts time and resources.
Impact of Overriding Objectives On Litigation
Stricter court deadlines. The courts will be less likely to grant time extensions. By fixing timetables less time will be spent on adjourning a case due to absence or lateness.
Fewer interlocutory applications. The courts will ensure that they deal with as many aspects of the case as it can at the same occasion thus saving on time spent on a case.
