5. From ‘Go’ to ‘Whoa’
Successful PIL depends on properly conducting the case from filing to finalisation. Proper conduct of the case includes employing techniques and language of persuasion from the outset and throughout the course of the litigation. The plaintiff needs to set the tone of a winning case from the beginning.
The originating process and the pleadings must not only comply with the relevant civil procedure requirements but also should articulate a clear, compelling and logical case. The originating process and pleadings are an early opportunity to persuade the court of the strength and rightness of the PIL claim. The law and facts of each element of the claim should be pleaded clearly and compellingly, so as to persuade the court of the ineluctability of the claim succeeding. Equally, every interlocutory application and attendance at the court is another opportunity to persuade the court of the strength and rightness of the claim. To that end, the plaintiff’s lawyer should be well prepared and articulate at every attendance before the trial.
The proper conduct of the trial includes making an informative opening of the case, always being ready, maintaining control, monitoring and adaptively managing the conduct of the case, and making a helpful and persuasive closing address.
To informatively open the case, the plaintiff’s lawyer should prepare an outline to speak to and, if practicable, provide a written outline to the court. The lawyer should explain how each element and sub-element of the claim will be established, legally and factually. The lawyer should use engaging rhetoric; the opening is the first opportunity at the trial to persuade the court of the strength and rightness of the claim. Consideration might be given to using aids for explaining the evidence, such as charts, tables, diagrams, photographs, PowerPoint presentations, demonstrations in court or in the field, or taking a site view to explain the evidence.
During the trial, the plaintiff’s lawyer should always be ready for each step in the conduct of the hearing. The lawyer should have the documents ready for tender, the plaintiff’s affidavits ready to be read, and the plaintiff’s witnesses ready to be called; be ready to cross-examine the defendant’s witnesses; be ready to deal with the defendant’s objections to the plaintiff’s evidence; and be ready to answer questions from the court. Always being ready at the hearing maintains momentum through the trial and cultivates the ineluctability of victory.
In the conduct of the trial it is important for the plaintiff’s lawyer to maintain an aura of calm, competence and control. The lawyer needs to stay on message throughout the trial. The lawyer should not engage in tactics or sledging of the defendant’s lawyer, or conversely be diverted or distracted by any defence tactics or sledging.
The plaintiff’s lawyer needs to monitor how the case is going and adaptively respond to the dynamics of the trial. This includes responding to the evidence adduced at the trial by adducing further evidence to fill gaps or rebut damaging evidence, and answering any questions or concerns of the court. The lawyer should, where possible, adapt the legal and factual arguments and adjust the emphasis of the case to match the state of the evidence before the court at the close of the trial.
To persuasively close the case, the plaintiff’s lawyer needs to anticipate and address the court’s concerns about the PIL claim. The closing address needs to make it easier for the court to uphold the claim. This includes showing how the court can find for the plaintiff on the law, the facts and the remedy — in effect, how the judgment might be drafted in the plaintiff’s favour.
In terms of the law to be applied, the closing address should explain how the legal arguments concerning the claim fit with orthodox legal method for finding, interpreting and applying the law. Every proposition of law should be supported by legal authority, both statutory and case law. The court should be provided with copies of unreported and out-of-jurisdiction authorities. The court should also be provided with the orders the plaintiff seeks for the court to make and, where necessary, legal authority for making the orders.
In terms of the facts to be found, the closing address should identify and summarise the evidence that the plaintiff submits should be selected by the court and the findings of fact the court should make from that evidence, with exhibit and transcript references. Where the evidence is voluminous, consideration may be given to providing the court with a compendium of extracts of key documents, transcript or evidence that the plaintiff’s lawyer will refer to in the closing address, annotated with exhibit references to assist the court.
