A great general was once asked to give his all time secret to winning an enduring military campaign. He wisely gave three words: “Preparation, Preparation, Preparation”. How true the words. For, consider, if you will, any great military adventure, and you will find that all the ingredients which led to success were all under girded with painstaking and almost flawless preparation.
Remember, if you will or check it out (if you do not), the Isreali Army’s hostage rescue from Uganga’s Entebbe Airport. The entire episode lasted for Ninety Nine minutes. Yes, Ninety Nine minutes, during which the Isreal Defence Forces (IDF) flew from Isreal to far away Uganda, landed and rescued more than a Hundred hostages, without the knowledge of the Ugandan Goverment. How Isreal pulled off one of that most daring and successful hostage rescues on foreign soil ever in history turned on that one word: Preparation. The details, as they say, is a story for another day.
As a lawyer who has been in many Court room battles, I have discovered that while variable factors may turn up in play in a Human Rights violation case, ultimately, winning or losing the case often turns on that same word which thr military General used: Preparation.
It is a simple word, but an epochal one. So, it goes without saying that the lawyer who avidly and meticulously prepares his case, is most likely to win. Period. No magic about it. Forget all the stories and old wives tales about some Judges favouring their friends or society members in Court by giving them judgment. Ignore such idle talk. Just focus on the ultimate winning element which is in your hands: Preparation.
So, if you have to successfully litigate a human rights case, you should painstakingly prepare to win, even before you file the suit. Remeber that a case is most often predictably won or lost in the lawyer’s office. Now let us briefly discuss some areas where preparation could prove to be a game changer.
1) PREPARE YOUR EVIDENCE
The law seeks for facts, the facts of a case. Judges want to hear your narration of those facts, before you can get Judgment. Facts are proved by admissible (meaning ‘what the law allows’) evidence. So, painstakingly prepare your evidence. You must:
a. Seek out witnesses and persuade them to sign Depositions on Oath. Often times, witnesses will either be afraid of reprisals or could not be bothered to get involved. Either way, it is your duty to seek them out and assure or persuade them to help in the case.
b. As much as possible, get documentary proof of the violation or the circumstances thereof. Judges are not crystal ball or star gazers or mediums or prophets. They cannot just stare into your eyes and be divinely endowed with vision of the facts of your case. You are the one to make your case come alive before them, advisedly in colours.
C. So, take pictures of scenes or places where the alleged violation occured. Injuries or scars should be meticulously photographed and documented. In one case, I had to travel to a Police Check point to take the photographsof the place/road from different angles, in order to show the Judge where the events occured. It proved to be a decisive piece of evidence. And, always remember to include a Section 84 Certificate pursuant to the Evidence Act 2011.
D. Medical and other experts’ Reports should be applied for, pursued and obtained. I say “pursued” because Doctors are usually very reluctant to get involved. So you need to be unrelenting in asking for the Report. If any Doctor is unco-operative, apply for and serve a subpoena. Threaten them with jail time. That will usually whip them in line.
2. PREPARE YOUR COURT PAPERS WELL
Prepare your court papers (processes) well. Use winning precedents. By current law, you can use any applicable mode to commence the case. For example, Writ of Summons, Motion, Complaint (in the National Industrial Court, if the violation is employment related), etc. Be a great Draftsman and tell a compelling story in your papers.
When you are done, have someone else to read through your work. This way, the other person can help you identify areas that you may have missed or point out typographical errors and help in correcting them.
3. PREPARE YOUR MIND
When litigating a human rights case, not everyone will be cheering for you. The Security agents will certainly not be on your side. Then, members of the legal community themselves often do not help matters. They view human rights lawyers with ill concealed scepticism or downright suspicion, as if Human Rights lawyers practice some arcane art or science.
Anyway, you need to prepare your mind to deal with opposing thought or thinking. Be strong willed. Be bold. But also be flexible, friendly and humorous. Don’t be too serious. Try to make the Judge laugh, during arguments. Don’t be boring, as boring lawyers tend to loose more cases than spirited ones.
4. PREPARE YOUR WITNESSES
Most human rights cases can be resolved by the Courts on Affidavit evidence, with little or inconsequential contention on facts. There will therefore be no need to call oral evidence.
However, where there are pivotal or substantial conflicts in Affidavit evidence of parties, documents could assist the Court to resolve the conflicts. See the Supreme Court decision in OSITA NWOSU v IMO STATE ENVIROMENTAL SANITATION AUTHORITY
However, where there are no documents which can aid in resolving the conflicts, then it is the responsibility of the Applicant’s Lawyer to apply to the Court for parties to be permitted to call oral evidence to resolve the conflicts. Failure to do this could result in a lost case, because it is mandatory that a trial Judge who is faced with substantial conflicts in Affidavit evidence to, either:
(1) Resort to the use documentary evidence which could tilt the balance of the case one way or the other, or
(b) Hear oral evidence from witnesses to resolve the facts in disputes in the Affidavit evidence of parties.
Note that apart from the two options above, there is no other way for a Judge, faced with conflicts in Affidavit evidence, to resolve the conflicts. He cannot unilaterally pick and choose which side to believe and which one to reject. Granted that a Judge may entertain his private views about what may have transpired between the parties, but such views must be subjected to what parties actually prove or disprove during the case.
So, if witnesses will be required, spend time to prepare your witnesses well. This will help them to face cross examination. Train them on how to answer questions. Note, do not tell them to lie or give a false version of events, as that will be illegal and unethical.
But a Court is not a place where the average Nigerian is familar with. So, the Lawyer’s expertise is needed during Pre-trial meetings in other to bring out the best in the Witnesses in Court.
Finally, remember that the law is made for the lawless, the disobedient, the ungodly, the sinners, murderers, and such like fellows. So, deploy it expertly to bring such persons to account.
See you in Court!
(Dele Igbinedion Esquire is the Principal Partner of “Dele Igbinedion Chambers”. He can be reached on Email: firstname.lastname@example.org or Tel/Whatsapp 08059863558)
© Copyright DNL Legal & Style 2017.
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© Copyright DNL Legal & Style 2017.
This piece may only be copied on the condition that DNL Legal & Style is duly acknowledged in this manner: “Source: DNL Legal & Style. View the original