The Oracle: Managing Complex Litigation: A Personal Experience (Pt. 2)

By Mike Ozekhome

INTRODUCTION

Last week, we examined the meaning of the word litigation; the role of the Judiciary and counsel in complex litigation; complex commercial litigation; factors to be considered incommercial litigation and jurisdiction of courts in commercial litigation. Generally, complex commercial litigation is the most common dispute resolution process in Nigeria for resolving high-value disputes and are also resolved through commercial arbitration. It is evidence that commercial arbitration is fast becoming the preferred method of resolving such disputes in Nigeria. Today, we shall conclude our discourse on this germane issue. 

APPLICATION OF NIGERIAN LAW

In deciding cases of complex litigation before them, the courts are duty bound to apply Nigerian law. The courts will not apply a foreign law to determine issues litigated before them except in instances where the contract between the parties contains a valid choice of law clause in favour of the laws of a foreign jurisdiction. It must be noted, however, that such law would only be applicable where it is not inconsistent with Nigerian law or against public morality, equity and good conscience. Where there is no settled Nigerian law position on an issue or matter, a settled foreign law position regarding the issue or matter may have a persuasive effect on the Nigerian court.

ADR TO THE RESCUE

Parties are encouraged to resolve their dispute by utilising Alternative Dispute Resolution (ADR) mechanisms. Where parties fail to utilise these available mechanisms, the court can refer or subject parties to ADR centres created by the courts, for example, the Lagos State Multi Door Court House. Usually, the court refers parties to ADR at the commencement of proceedings and before trial. In the event that the parties are referred to ADR and are unable to resolve their dispute amicably, they will be referred back to court for trial.

CONCLUSION

In general, complex commercial litigation enjoys little or no difference from standard litigation. The major difference arises in the multiplexity of complex litigation and the expertise needed to handle either. While many lawyers can handle standard litigation, very few lawyers have the expertise of handling complex litigation. There are three major points that every lawyer should engage when planning and managing lengthy complex litigations. These are:

• Form and empower a team

 Building a solid bench of experienced lawyers for these types of cases is imperative and starts with the identification of a “Vice”, “Deputy” or “Second-in-Command”, who can share in the global view of the case, and assist with its management.  Other team members must be experienced with the roles, functions and responsibilities meted out to them. Nonetheless, these other team members should be accorded the opportunity to share in the “big picture” planning, as their ideas or opinions could make the difference between winning and losing.  Institutional knowledge that is developed must be shared and documented, otherwise there remains the risk that team members could always leave with their ideas. The team, now in place, must be empowered to perform their roles, and given an understanding of how their contribution is necessary to the overarching strategy.  Without such a shared sense of ownership in the case, it is more difficult to keep team members engaged over the length of the matter.

• Always document your case

 Create a timeline and update it as frequent as possible.  Each team member can and should contribute to the case timeline.  The practice is invaluable for many reasons, including that it memorializes events and developments (big and small); provides a quick history of the case for new (or forgetful) team members; useful for the summaries included with most motions; and, allows you to constantly validate activity against the case strategy.  Such a timeline is also useful for updating clients and mapping out strategies.

• Communicate with your client regularly

 Update your client regularly and without prompting.  This is the most important practice pointer for any type of matter, but it is especially true with complex actions.  Like the practitioner, your client is also susceptible to the same fatigue, loss of focus and internal transition.  Anticipate this concern (as it is potential impactful on your lawyer–client relationship) with regular updates, and consider providing them access to your litigation timeline (or create and update an abbreviated version for them).  This provides ready answers to most client questions, and will indirectly address the time-to-time perception of a lack of progress common to year-long cases.  Providing regular updates and showing empathy to the situation will go a long way to keeping your client committed to working with you.

Working on long, complex cases is rewarding, but requires significant effort to maintain the constant energy and focus required throughout.  Pre-planning and continued emphasis on these core principles will help lawyers to keep the focus and enjoy successful outcomes in such complex litigation cases.

A LAWYER’S DUTY GOES BEYOND ACHIEVING SUCCESS IN COMPLEX LITIGATION

A peep into the entire programme of this retreat shows wonderful topics ranging from Ethics of the Legal Profession; The Corporate Counsel & Legal Practitioners Rule of Professional Conduct; Trial Proceedings in the Federal High Court; Appeals; What makes a good Legal Department; The Ideal of Corporate Counsel; Review of draft DLS new Commercial Agreement Templates; The Judiciary and Remote hearings: Advantages and Challenges; Managing Complex Litigation – My Experience; Garnishee; Managing Garnishee Orders – The FCTA Experience; to the Role of National Industrial Court in the Enforcement of labour Related Violations, Under the NOGICD Act, and the Conflicting Jurisdictions of the State and Federal High Court – Enhancing Synergy between DLS and in-house Stakeholders, the experience of DDDs. There are also topics which span from can the EFCC Investigate Violations of the NOGIC Act; ADR Methods of resolving Commercial Disputes: – How Arbitration works, – Principles of Arbitration, – Mediation Process, – Conciliation Process; An examination of the arbitrability of violations under the NOGICD Act?; Federal and State Tax Laws and their implications on NCDMBs Mandate; Fundamentals of Maritime Agreements; a primer on Midstream and Downstream Energy Infrastructure Transactions and Agreements; Financing, Structuring and drafting power project Agreements; Essentials of Gas Sales Agreement and the role of GACN; Planning for Effective Performance – Team Building and Attitudinal Change for Effectiveness; Commercial Ventures and Projects; to Procurement. You did not forget to include critical subjects such as the new NOGICD Act Regulations and Strategy for Industry Compliance; Effective use of Microsoft Productivity Tool (Word, PowerPoint, Excel etc.): – Conducting Internet Research, – The Legal Department of the Future, – How Disruptive Trends are creating a new business model for in-house legal, – Legal Technology Adaptation (Data & Security); The Nigerian Procurement Law, Procedure & Practice; The Nigerian Corporate Governance Law and its Application to the Implementation of NOGICD Act; An examination of the Applicability of ICPC Act on the Mandate of NCDMB; and the implications of Nigeria’s WTO and ACFTA’s Obligations on the Implementation of the NOGICD Act; Legal Implications of the Proposed NOGICD Act Amendment bill 2011.

No doubt, the above topics are beautiful, and extensive; and cover the field in terms of enhancement of your work as corporate and commercial lawyers driving the local content of our national industrial life. However, I strained my neck in vain, but could not see any topic that deals with any of the burning national issues of the moment; current issues about Nationhood, insecurity, corruption, and our parlous economy. I thought we should take at least a peep into how our tottering Nation is twiddling Twitter; how Twitter users are to be prosecuted under a non-existent law (remember AOKO V. FAGBEMI (1961) 1 All NLR 400); and section 36(12) of the 1999 Constitution. I wanted to see an inclusion of a discourse about how we are operating a Military Decree No 24 of 1999 as our Constitution; about rule of law; democracy; about devolution of powers; resource control; true fiscal federalism and issues concerning self-determination. I yearned to see something, just anything about the incessant rate of kidnappings, armed banditry, Boko Haram; whether State Governors could promulgate laws setting up local vigilante groups.

I did not see any. Because I believe they are important to the very corporate existence of Nigeria and the enablement of a conducive environment for you to operate from your beautiful 17-story edifice in Yenagoa, and the 4 NNPC towers in Abuja, I shall touch them. Permit me to take upon myself the liberty and licence to discuss some of them. Yes, because without security and safety of lives and property, none of us will be present at this beautiful Wells Carlton Hotel built by my good friend, Capt. Hosa Okunbor, I therefore will and must touch them. A lawyer’s role should go beyond these very classroom lectures. Yes, we are all lawyers here.

It should involve participating in the social milieu, finding answers and solutions to complex problems of the society; problems that are at once centripetal and centrifugal. A lawyer must look at the immortal works of the first Nigerian lawyer, Sapara Williams (1855–1915), when he said, “the legal practitioner lives for the direction of his people and the advancement of the cause of his country”. A lawyer must situate his societal role in one or more of the schools of thought in jurisprudence with a view to helping societal growth. Let us therefore first briefly look at the various jurisprudential schools of thought.

REFLECTIONS ON THE MEANING OF LAW

The term “Law” has been defined in different ways by several scholars. The definitions proffered by these scholars are reflections of their environments, their rationale for law and its relationship to justice. These divergent views on the meaning of law culminated into varying schools of thought on the subject which in turn crystallized into what has become generally known as the schools of jurisprudence.

One of the earliest schools of thought on law is the Natural Law School. St. Thomas Aquinas, Socrates, Aristotle, Cicero, John Finn, St. Augustine, etc., are some of the proponents of this school of thought. They believe that there is a universal law from a supernatural being which is discovered by reason or rationalization. The Italian philosopher, St Thomas Aquinas, defined law as:

“… nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”

The Positivists School of thought on the other hand, believe that law is made by a sovereign, who serves as the only source of its validity, who imposes both the law and it’s sanctions on the people while himself is exempted from the law. John Austin, one of the proponents of this school of thought, stated in his Lectures on Jurisprudence (1885) that:

“Law is a command from the sovereign person or body in the political society to a member or members of society and supported by sanctions.”

The proponents of the Realist School of thought on the other hand postulated or argued that law should be seen as it is or as it is done in the law court, not as it ought to be or anything else. They argue that what transpires in the law court or what the judges do to arrive at their judgments and those judgments are the law. The American Judge, Oliver Wendell Holmes “The Path of the Law” in Collected Papers, 1920” noted that:

“The prophecies of what the courts will do … are what I mean by the law.”

Benjamin N. Cardozo, who succeeded Oliver Wendell Homes as an Associate Justice of the Supreme Court of the United States,  noted in the Growth of the Law (1924) that:

“When there is such a degree of probability as to lead to a reasonable assurance that a given conclusion ought to be and will be embodied in a judgment, we speak of that conclusion as the law.”

The Sociological School of jurisprudence, considers law or legal development from the perspective of the people in the society. Perceiving law as a social phenomenon, the proponents posit the harmonization of law with the wishes and aspirations of the people.  According to Rosco Pound (one of the proponents of this school of thought):

“… For the purpose of understanding the law of today, I am content to think of law as a social institution to satisfy social wants – the claims and demands involved in the existence of civilized society – by giving effect to as much as we need with the least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human conduct through politically organized society. For present purposes I am content to see in legal history the record of a continually wider recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence – in short, a continually more efficacious social engineering.”

As stated above, the sociological school is concerned with satisfying the interest of individuals and social institutions. These interests are claims or want or desires which men assert de facto, about which the law must do something if organized societies are to endure.  The English philosopher, Thomas Hobbes defined “Law as the formal glue that holds fundamentally disorganized societies together.”

While Oliver Wendell Holmes and Cardozo approached law on the basis of what the Court eventually does, Rosco Pound considers the concept “law” as a social institution to satisfy social want. His view of the law accord with the democratic principle of government. In a democracy, law is the reflection of the will and wish of the society. It is said that if you want to study any society, you have to study the laws enacted by that society.  Law, though, a product of the society is the tool for the transformation of a society. Law does not only set the path for change, it is the catalyst for change in any progressive democratic society.

Lastly, the proponents of the Historical School of Thought believe that law is a product of the people’s historical advancement. According to Von Savigny, law is:

“… a result of moments the germ of which, like the germ of the State, remains in the nature of people as being produced for culture and which grows different types from this germ, depending on the environment of the factors that perform on it.”

For Savigny, law is a reflection of the spirit of the people (Volksgeist) that grows with the growth of the people and dies as the nation loses its nationality.

The perspectives of the various schools of thought on the meaning of law are germane to our understanding of law as a tool for social change in Nigeria. Notwithstanding their perspectives, one outstanding feature in the various schools of thought is the need to ensure orderliness in the society through law. We, as lawyers, are the engineers that drive the legal process.

So, permit me therefore henceforth, to speak to these above vexed issues which I raised earlier ex tempore. I believe that your automatic recording of same will enrich your communique that will emanate from this beautiful retreat exercise. Consequently, allow me to speak on Nigeria; where we were; where we are; where we ought to be and how to get there. That is my ex tempore talk henceforth.

FUN TIMES

“E CHOKE HERE NA DIE OOO..

Wife carry her card give hubby to withdraw money and support his business. Hubby carry the same card give side chick to go shopping!! Side chick use the same card go do shopping for wife boutique. As it stands, wife dey receive debit and credit alert at the same time. So wife call DPO to come arrest side chick.. E just shock us say side chick na DPO wife… I go update una later shaa. Make I check egg wey I dey fry for fire”. –Anonymous.

THOUGHT FOR THE WEEK

“Litigation is the pursuit of practical ends, not a game of chess”. (Frankfurter).