An act of thievery is a calculated step in unlawfully taking something from someone. Strategy can be simply explained as moving from your current position to your desired future. Strategy is usually a management term used to carefully plan how management intend to work towards the achievement of corporate objectives. There are management activities in every organisation, and the law practice is of no exception. Therefore thievery clothed as strategy is when the lawyer attempts to cover up the act of thievery within the context of the law. My experiential knowledge and contact with protected family litigation lends credence to the fact that many lawyers are thieves and judiciary is tricky.
The moral depravity in the legal practice in many countries; Ghana not excluded (the Anas exposé gives credence to this fact) seem to have had a gigantic impact on many lawyers during their legal training and thus the vagabondism is been transferred into practice. They are simply not cut for the legal profession’s dictate of morality hence they become untutored lawyers. Many a society is suffering because of such practices.
I find it amazing how lawyers and clients are made to take oath with the Bible to “speak nothing but the truth” and yet in the proceedings the judge’s emphasis is on evidence. Does evidence always lead to the truth? This is where the act of thievery is peddled the most because they hide evidence as a strategy to perpetuate their evil act of thievery. The very Bible as an article of faith for which the oath is taken before the court is eloquently clear about “thou shalt not steal”.
Perhaps a quick reminder of the origins and practices of the English common law will serve as a good guide. That the Church of England played pivotal role in administering justice of the law. The Christian heritage of the English common law is incredible. The likes of Blackstone, Coke and Fortescue relied heavily on their Christian faith when expounding and developing what has now become the established principles and doctrines of the common law. The Christian foundation is an important element of the English common law which acknowledges God as a standard of justice.
Thievery as a strategy must not be countenanced in the practice of the law. The onus is equally on the bar and the bench. It is either perpetuated jointly by the bar and the bench or the bar at the blind side of the bench. Whichever form it is, the bench in the fullness of their wisdom and knowledge should be able to detect when the bar utterly odious pursue their case on the foothold of thievery clothed as strategy. Such act if not detected makes a mockery of the intelligence of the bench.
In instances where the bench is in cahoots with the untutored lawyer, the bench akin to a popular description of the Ghanaian police “they will by all means find fault with you to charge you”. To wit, you cannot be too careful about your enemies. The court only become the den of thieves as advocated in Jeremiah 7:11 “Has this house, which bears my Name, become a den of robbers to you? But I have been watching! declares the LORD” (New International Version). I am still guided by the role of Christianity in the development of the English common law.
Knowing the truth hurts the most when a case before the court is riding post on the wings of thievery as a strategy. This is mostly the hallmark of lawyers with low thinking who can best be described as “bubble waffle” thinkers. They turn to be sweet in their appearance but not weighty in their thinking. For such lawyers being smart in falsification of their presentation is a strategy employed in the trade.
It is the case that a lawyer cannot be faulted by the bench in a submission before the court. One of the truest test of the Ghanaian court will be when the bench starts to put lawyers before the disciplinary committee of the General Legal Council when they are found to have been forcibly by false pretenses caught in the act of thievery as a strategy in making their case before the court.
Until then, many untutored lawyers will have their days in court because they always go unpunished with their ploy even when they lose their case. More painfully, when the untutored lawyer had his day in court, an awarded cost against the losing party will be paid by the client making it a double punishment though they have presented a truthful case only for the lawyer on the opposite to smile to the bank.
I will proceed to lay down some simple steps yet weighty and deep thinking approach legal strategy rather than thievery clothed as a strategy.
The first strategic step to preparing for a case is the mental positioning of the lawyer. The lawyer must be mentally prepared to take up the case. If the immediate motivation is money, there is a high tendency to delve into thievery. For such lawyers their practice dwells more on how much money is in the case for them to the detriment of their reputation.
Having considered the mental positioning and firmly come to the position of acceptance, the next step is to take instruction from the client. Instruction taking requires absolute listening skills and deep thinking. The untutored lawyer will usually listen differently and think parallel to the instruction. Asking relevant questions and understanding the response will help immensely in preparation.
Another step worth considering at the preparation stage is research. Legal research is a forte of great lawyers. In the process of finding an answer to a legal question, lawyers do legal research. The advantage of legal research enables the lawyer to determine whether or not a legal issue is a “case of first impression” that is unfettered and/or lacks legal precedence. The investment in time and financial resources to have the necessary tools of comprehensive legal research is what many do not do hence they engage in thievery clothed as strategy and an easy way out.
- The court
After the lawyer has establish a case in law after consultation, then the determination is whether to go to court or settle out of court. Out of court settlement is determined by the veracity of the case and whether the parties involved will agree to out of court settlement. If the determination is to go to court, then the lawyer must do as follows:
One, ensure that the filing process in done and in time. The common situation where lawyers give processes to clients to go and file must be abhorred with the strictest of spite. It is an unprofessional way to doing a professional work. Perhaps it will help the court greatly not to accept filing process that is not done by a lawyer or a registered clerk from a licensed law firm.
Two, court appearance by counsel and plaintiff/defendant is necessary. There are many instances where lawyers fail to turn up in court without the client’s knowledge. This is another common unprofessional act of many lawyers particularly the untutored lawyer.
Three, grooming of lawyers forms part of the practice. Need I say that there are many tattered lawyers who should not be allowed to appear before any court even the remotest district court in a village in Ghana. The prescribed legal apparel must always be worn.
Four, adhering to time by the court is usually flouted by lawyers. This is another trait of the untutored lawyer. They always show up late and when they happen to have considerable years of practice, they coarse younger lawyers to have their case heard. Being in court on time and getting settled before your case is called gives you time to reflect and be emotionally stable.
A tutored lawyer must be courageous and have a fighting spirit. Being emotional in prosecuting your case is necessary. You can’t distance your emotions from a case that you are determined to win. Yes, the level of emotion must be balanced so as not to be perceived as arrogant to the judge.
- Legal outsourcing
In my estimation, one of the undeveloped strategy in legal practice in Ghana is legal outsourcing. This is where a lawyer takes up a case and in consultation with the client outsource the case to another law firm that has better expertise to handle the case. The development of Ghana’s legal system will be to encourage more legal outsourcing not only on the case per se but also in general management of law firms. In future, I will write extensively on the subject of legal outsourcing.
The prestige given to the legal profession and the court does not reflect recent trends in the legal Ghanaian legal system. Right from admission to the professional law course, administrative misappropriation, administering of justice, ethics of the profession, but to mention a few, this has given rise to many lawyers adopting the act of thievery clothed as strategy in their practice. Will Ghana’s legal practice be a shining example again? We need a restoration of confidence in the Ghanaian legal system. After all, it is not all about money and who the highest bidder is. It is about the God factor and knowing that we shall one day appear before a greater Judge, we should be guided in this temporal position.