By Raphael Christopher Esq
The future of the Legal profession is evolving and the primacy position of the legal profession is under threat from many quarters and the stock of the legal profession needs to be lifted and one of these ways to help lift the stock of the legal profession is by us being guided and getting better and improving ourselves by embracing the following suggestions I humbly proffer in this article.
In this article, I will focus on litigation practice in this article and suggest a set of guiding principles however my suggestions still apply equally to every arena of law with equal force and can be transferred to other areas of law with same success. My intention being to help in some small way to contribute to the success of my learned colleagues and by so doing, we can all work together to uplift the standards of our noble profession.
I am hopeful of some small success.
Litigation from time immemorial has been one of the civilised mechanism by which disputes between human beings can be resolved. Success in this very important arena for yourself or your clients depends on evidence adduced in support or against the positions that any of the parties have adopted in the litigation.
Documents are key in your success or failure in litigation. They can be your ally or your adversary? Whether documents are allies to your case or adversaries against your case depends on a number of facts and factors. I shall not go into these at this present time but in future articles and books.
I have developed a set of laws which I call Raphael’s 12 Laws of Documents that if followed by any litigator would enhance your chances of success for the following eight solid reasons:
They will help you present your documents clearly and accurately.
They will help the Court to understand your case easily.
They will help you identify weaknesses in your case by making them clear
They will save you time and money in the long run.
They will show your client your hardworking qualities.
They will demonstrate your competence.
They will help you to uphold the standards of the legal profession.
They will enable you become more assured and confident in court as you can easily point to the relevant sections to adduce your evidence.
For the purposes of my laws, let us have a working definition of document Generally,
By document, in this article, I mean any writing on any written media or medium or in any format that is being tendered or offered as evidence in a properly constituted court or tribunal or ADR or any other such arena constituted by Law, to prove, disprove or establish the existence of any fact or facts that are either agreed or disputed between the parties in a case, litigation or dispute.
As can be seen from my definition, documents are important and if they are so important, could there possibly be some principles one can distill that may govern their preparation and use in litigation?
The answer is a resounding Yes. What are these principles and laws? After much thought, deliberation and examinations of over 100 cases in different countries of the world and from my own experiences in litigation, I have distilled 12 laws, best practices or principles which will work anywhere in the world and under every situation and will enhance the chances of success and bring the benefits I have previously set out in this article.
Here then is Raphael’s 12 laws of Documents. They are simple and straightforward and easily applied and that is the beauty of them.
Raphael’s First Law of Documents: Assemble Documents in a clearly visible or defined order. You are welladvised to assemble your documents in a visible or defined order – preferably in a chronological, numerical or alphabetical order depending on the case and the audience. There are advantages and disadvantages to any type of order. Bear in mind that your audience may have some handicaps so make sure your assembled documents are assembled in such a way that they can read or follow it with little difficulty.
Raphael’s Second Law of Documents: Paginate your Documents in a continuous form using the same numeric pagination. Do not use different paginations in the same documentation especially in a very document heavy litigation scenarios. Keep to the same pagination and it will make it easier for everyone to follow the evidence and the facts. Different pagination philosophies tends to muddy the waters and brings headaches to Judges and witnesses.
Raphael’s Third Law of documents: Make sure every copy of the bundle of assembled documents have the same pagination. Do not have one copy of the bundle of assembled documents have a different pagination to the other copy. Make sure every bundle have exactly the same pagination and this will reduce confusion because if you have a different paginated document to the Judge’s copy and the witnesses copy, they cannot follow your lines of argument and if they can’t, your case and your clients case is placed at grave risk of failure.
Raphael’s Fourth Law of Documents: Make sure no documents carries more than one page number and that page number must be legible and preferably be at the bottom right hand corner of the bottom of every document. If you have different pages carrying different page numbers or crossed out page numbers – you are generating confusion.
Raphael’s Fifth Law of Documents: Do not omit any important documents from your bundle. This is a sure fire way of risking negligence claims against you by your client and losing your case. Go over the documents yourself over and over at least three times and ask your colleagues to also check that every important documents are contained in your bundle of documents. Do not leave the job to your juniors. If you may, allow juniors to assemble them but you must be the final person to vet them before it is presented for use in court. Nothing is more embarrassing when you are appearing before the Court and with your client watching you, than you lead evidence and then tender a document which you have, but has been omitted from the bundle!!!
Raphael’s Sixth Law of Documents : Make sure that there are no duplications or multiple copies of documents appearing more than once in the bundle of documents. It is annoying to Judges and triers of facts to find that in some case, up to 10 percent of the documents produced appears more than once in the bundle! Prevent this by checking and double checking because sometimes our eyes deceive us.
Raphael’s Seventh Law of Documents: Please make sure that every copy of the documents you present are legible not truncated or cropped! Many times we don’t take care in making copies on the photocopiers and because of the settings on the photocopiers are not set at the optimum settings for making good clear quality paper copies, the resulting photocopies can sometimes come out illegible, truncated or cropped. We need to make sure that the photocopiers are working well, have enough ink and paper and the settings are set to the optimum level for producing a very good quality copy. Remember, your bundle preparation and quality says a lot about your firm’s commitment to excellence and can be a positive demonstrator to the Judge or trier of facts of your competence – so do not waste this opportunity!
Raphael’s Eighth Law of Documents: This is a big one. Make sure that the documents presented in your bundle are ALL relevant to your case and not merely frivolous padding! It is an eye opener to me to discover from personal experience, and the examination of over 100 cases in Njgeria and many countries worldwide that statistically nearly 80 percent of the documents in the bundle prepared and used in court are irrelevant and in court only about 10 percent of the documents are referred to by Counsel and even then, only 5 percent of the ten per cent referred to by Counsel are actually relevant! You now understand the frustrations of Judges with Counsels who do not get to the point or have command of their case and paperwork! Prevent this by carefully analyse your documents to ensure only the relevant documents are included in your bundle. If you are worried that some documents might be needed and you wish to ensure you are not taken off guard – by all means have a supplementary bundle prepared but in all cases – be straight to the point, be brief and succinct.
Raphael’s Ninth Law of Documents: When you have documents that are double sided, make sure both sides are reproduced and are carefully paginated in logical order. Many times, due to the way photocopiers work, many times only one page of a double sided paged document is made and included in the bundle and only when in court you refer to the other side of that double page document do you then realise that only one page has been made and consternation sets in!! This is Avoidable.
Raphael’s Tenth Law of Documents: Make sure that when you make transcriptions of certificates, judgements? manuscripts and foreign documents of records they should bear as much relation as reasonably practicable to the original documents or recordings. Many times you will find because of translations, speech and different hues of word rendering, the original words are transcribed and paraphrased and bear very little resemblance to the original documents so have several experts from both parties work on them to produce an agreed version useful for the court.
Raphael’s Eleventh Law of Documents: Make sure that the bundle of Documents are held together by a safe way or mechanism. Avoid using steel pins because they are very sharp and may injure the reader of the documents as they flick through it. Make sure you use a big enough and long enough staple that is able to penetrate the full thickness of the bundle and hold them in place otherwise the papers would detach and become a mess. If you use tape binding make sure that it is not so stitched that the bundle cannot be fully opened otherwise you run the risk of mishaps. If you are using a ring or arch-binder, make sure they are not damaged and make sure that the two arcs do meet and they flow easily.
Raphael’s Twelfth Law of Documents: Make sure that when you identify an important portion of a document that is relevant to your case, do not highlight that portion in a dark colour before you make copies of it. If you do, you will discover that after copying your copy will come out illegible and cannot be read properly. It is better to copy the documents first and do the highlights in your own copy.
As you can see from the above Raphael’s 12 Laws of Documents, if you be guided by them, they will certainly help you in some small measure to refine your abilities in handling documents, improve your presentation and help you make a positive impression on all and sundry.
If you have any other tips and suggestions, or simply wish to contribute or share your experiences along your use or misuse of the above Raphael’s twelve laws of documents in any area of law, please drop me an email at firstname.lastname@example.org
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