LITIGATION is like war. It can feel that way for those involved. There are strategies, manoeuvres, ambushes, conquests and defeat. Litigation can engender in one the desire to win — at times, at any cost.

And that is where the danger lies. It is to keep this danger in check that the rules of the game ought to be defined in a manner that result in fair play. A fight is a fight, but without the ground rules being embraced by those engaged in the tussle, it can get ugly. In the ‘wars’ that take place in our courtrooms, procedural laws, and the guidelines provided by the courts in interpreting the due process clause of Article 10A, embedded recently in our Constitution, lay out the requisite framework.

In an adversarial system, the truth is said to be crystallised, as the two sides zealously advocate for their respective positions with the in-built incentive to verify and counter the arguments propounded by the other side. Such incentive, however, can be perverse. Left unchecked, lawyers, at times, become comfortable with employing sly and deceptive techniques, which though seemingly benign, spawn a culture of subterfuge.

In trying to gain an untoward advantage over the other side, efforts are expended in keeping the ball hidden. For instance, the court filings are deliberately delayed until right before the date of the hearing, or are made on the very date of the hearing, often to deprive the other side of adequate time to prepare. Lawyers in Pakistan at times even avoid making their key arguments in written form, primarily to prevent the other side from formulating a cogent response.

The preferred method in courtrooms is the tactic of surprise.

The preferred method is the tactic of surprise — pulling out documents at the very date of the hearing, handing them over to the judge through her reader, without sharing them with the other side, unless prodded to do so by the judge. While arguing, additional documents, charts or maps are provided to the judge, which are otherwise not part of the record, and the opportunistic lawyer looks for ways of not sharing them with the lawyer across the aisle.

The biggest casualty of these efforts to conceal is intellectual endeavour. Legal reasoning, in common-law jurisdictions, entails among other things employing already decided cases, extending their reasoning or the principle they enunciate to new situations. In Pakistan, such cases are often not cited in written pleadings, and are not made available to the other side; they are only provided to the judges, and that too mostly at the time of the hearing. If the other side is not aware beforehand of these cases, it becomes harder to fully and adequately address the legal arguments or poke holes in them or distinguish their application from the set of facts at hand. The debate, as a result, remains superficial.

In the context of criminal law, there is a famous doctrine recognised in the US by the name of the Brady Rule, which takes its name after the supreme court case, ‘Brady v Maryland’. Together with subsequent cases, such as ‘US v Bagley’, the Brady Rule requires the prosecution to divulge the materially exculpatory evidence in the government’s possession to the defendant during the trial. This is recognised as a constitutional safeguard under the due process clauses of the US Constitution.

In criminal cases, the stakes are high, since the life or liberty of individual(s) is involved. Additionally, the Brady Rule emphasises the fact that the role of the prosecution is not to amass convictions at the expense of other ideals. More vitally, however, undergirding this doctrine is the idea of fairness and truth, which are not to be sacrificed at the altar of the adversarial system. Revealing information, which the prosecution is privy to and which, in turn, makes it harder for the prosecution to attain a conviction, is a testament to the ideal that truth and justice supersede the ambition of winning the ‘sporting event’ that is litigation.

War may be used as an analogy for litigation but it has to be a war of wit and intellect, instead of slyness and deception. There must be actual engagement on facts and law, where lawyers deeply engage and wrestle with the arguments of the other side, and are provided an opportunity to do so. The lack of an intellectual legal culture in Pakistan is manifest; we have yet to make an original contribution to law and we remain dependent on other jurisdictions to do the heavy lifting. This will only change when the energies expended in hoodwinking are channelled more constructively.

Not everything is fair in war. And a win is not always a win. The desire of winning by hiding the ball must be made to cede to the greater interest of justice and the truth.

The writer is a litigator based in Islamabad.

awahid@umich.edu

Published in Dawn, July 8th, 2021