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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 37
September 22 , 2007

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The art of pleading in a justice delivery system

Squadron Leader Md Ataur Rahman Mollah

In any legal proceedings, a pleader assists the prosecution and defence sides. This pleader is commonly known as Advocate. An Advocate plays a vital role in justice delivery system. The pleader must have the ability to communicate effectively. There is no one correct method for pleading. No doubt, individual styles and abilities play an important role in this regard. Yet an analysis of the work of good pleaders shows that there are some fundamental features. But their expression may differ with the changing situation and circumstances.

The role of a pleader in a justice delivery system is important for the judge to know the facts of the case. Thus enough emphasis is given on the role of a pleader. In the proceedings concentration on fact-in-issue is the key for a pleader to persuade the judge for his case. The court cannot perform its functions without the help of honest, independent and competent pleaders.

Pleading is also an art of persuasion. One can achieve excellence in it only by natural ability or long experience.

Preparation of a case
The preparation before the judge should start with the selection of issues, important points, and related facts. On the other hand, the opponent's good or bad facts are also to be identified correctly while selecting the issues.

At the time of pursuing the case before the judge, a pleader should use his first 10 minutes to project the case in brief. It is a fact that a judge would always think about justice. Keeping that view in mind, a pleader should include three things in the presentation: (a) Subject (b) Arrangement and (c) Persuasion.

The case theory would project the summary of the case, identifying the important issues. After analysing the situation, a positive demonstration is to be given, in a form of deliberation. What is psychologically important is that a pleader should always think about the judge's feelings; think what the judge may think or he may have in his mind. To achieve this, the preparation of the case must be given the highest priority. Lack of preparation might result in irreparable loss to the client.

The pleading subject matter should be made short, lucid, concise and logical. The presentation must start and finish within a reasonable time covering the relevancy of the case. The witnesses must be procured before the court starts its proceedings. They must come with full preparation and awareness. They must be briefed on their own account of evidence relating to the case, but must not be tutored on what he/she is not aware of, so that they do not deviate from the relevancy. After the examination-in-chief or cross-examination, as the case may be, a pleader should prepare the final closing address i.e. wrap-up of the case.

Before sitting for preparation of the case, the manner, method and matter of the case are to be considered carefully. After that, a pleader should think what are the points in his favour, and what are the points against; and which are the points that may attract the judge.

Rules relating to writ petition
In a writ petition a special type of pleading is necessary highlighting the urgency of the subject. While pleading for any writ petition a pleader should urge the court in the following manner:

Preliminaries. Before pursuing the Judge for an injunction or writ petition a pleader should introduce the case in brief. The introduction must be given with full information and fact. He should draw a complete picture with the available information, so that the Judge's mind remains clear of any doubt.

Urgency. A pleader should elaborate the case, keeping in view the urgency. If the case is very much urgent in nature then the pleader should mention about its nature and scope of the urgency clearly in a lucid and convincing manner. If the court dose not grant the injunction or writ, in that case what might be the possible reaction or counteraction should also be included in the notes of a pleader, so that during argument on the case he can apprise the Judge as to the prevention of any consequential situation that may arise out of the disputed fact or issue. In addition to that, the pleader should clearly mention about the object of dispute and explain it to the Judge.

Rules relating to examination-in-chief
The party who calls the witness conducts the examination-in-chief, in a court. To conduct the examination-in-chief, the following three rules are required to be observed:

The first rule of examination-in-chief is to present the story (of the case) to the Judge who did not know about the case before. While doing the same, the party who called the witness should examine the witness in such a manner that the full story is clearly presented. For that matter he should start from the beginning. The language of the statement is to be clearly understood by everyone.

The second rule of examination-in-chief is, not to put any leading question, because in the examination-in-chief only the witness tells story, not the pleader, prosecutor or anybody. At this stage, non-leading questions, like 'W' questions are allowed to be put. The 'W' question means those questions that start with what, why, who, when, where etc. Non-leading questions' answers are not suggestive ones. Leading questions mean those suggesting the answers like 'Yes' or 'No'.

The third rule of examination-in-chief is that the prosecution pleader is to control the story. Because the witness may tell many things which may not be required to record or which may not help the case. That is why the party who calls the witness, may restrict the witness from saying many things which are really not beneficial for the prosecution case. Therefore, the best principle is to restrict the witness from making unwanted statement by putting him to non-leading question.

Rules relating to cross-examinations
A witness is cross-examined by the adverse party, who calls the witness. In cross-examination (CE), the leading questions are allowed to put on the fact by the adverse party. During CE too general question should not be put to the witness. Every question must be specific so that the answer will be suggestive. A pleader shouldn't put such type of question, which can be a factor to damage the prosecution evidence. The following ten points are to be followed in CE:

Firstly, after the examination-in-chief, a pleader should decide whether CE is at all required or not. If it is necessary, then he may proceed with full arrangement, and without damaging the defence. But, if there is no requirement, he should not.

Secondly, if a pleader doesn't accept the prosecution evidence then he should do necessary groundwork to impeach the credibility of witness.

Thirdly, a pleader should devise question from the defence point of view. He should put the question in the language the witness understands.

Fourthly, the pleader should decide what question he needs to put. He should select the question which are really essential to put to the witness.

Fifthly, a pleader should not put lengthy question to the witness. The question is to be short and simple. Otherwise witness may be confused.

Sixthly, a question to a witness should not be put on matters which have already been mentioned in the examination-in-chief. The CE must be brief. A long and lengthy CE has always a bad effect on defence.

Seventhly, the pleader should put only one question at a time. Then he must listen to the answer carefully, so that, if needed, a substitute question may be put to the witness. In CE a pleader should not allow the witness to explain his answer.

Eighthly, the pleader should keep the eye contact with the witness as well as with Judge, while putting questions.

Ninthly, the voice of the pleader is to be normal and audible to the Judge. No annoyance is to be created, otherwise, the witness may not co-operate.

Tenthly, the pleader should allow the witness to answer in his own way. But to restrict him from telling the unnecessary word the very question is to be framed or furnished properly.

The witness is to be controlled for his own account of evidence during CE. The best way to control the witness is to put before him the leading question. The witness should not be allowed to repeat the case story which he has already described during examination-in-chief. It should be borne in mind that examination-in-chief is the witness' or prosecution's (the party who calls the witness) affair but the CE is the pleader's affair. A pleader should not argue with the witness during CE, because it would encourage or make the witness to stop answering the question correctly and accurately. Any such argument would also waste time and it may hamper the concentration of the judge.

In CE a pleader should not put any non-leading question to the witness. This is not a law, but it can be a good practice.

Pleading in front of the judge is a complicated art that should be learnt by continuous process of practice. About examination-in-chief and CE a pleader should have enough knowledge as to the preparation. In this regard, notes can help a pleader a lot. Most of the pleaders do not use their notes properly. The pleader should keep in mind that the art of pleading is a core capability to persuade the judge. If the pleader can maintain a proper flow of the art of pleading, it would help to establish a symbolic justice delivery system.

The writer is former Law Instructor in BAF Academy & Officers' Training School and at present serving as Deputy General at Air Force Headquarters.


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