Wednesday, August 03, 2005

The Kangaroo and the Rabbit

The summer's almost over. The fall session starts in two weeks. From now till then, I have some well-earned time off.

My summer session has been fantastic. My LLM classmates are a hoot. More importantly, I got an overview of US Law - and learnt to see Singapore's legal system with fresh eyes. Learning about US Law through the eyes of a Singapore lawyer is the mental equivalent of seeing a kangaroo and picturing a rabbit.

You know sometime a couple of million years ago they shared an ancestor. You can even see the common features. Yet, somehow, you can't seem to grapple with the fact that many legal terms you take for granted mean something absolutely different, or are approached completely differently.

I have started to grow to respect US lawyers. Yes, they have a reputation for being ambulance chasers and aggressive beyond reason - in some cases this is well-deserved. Yet, during my course of study, I find that even 1st year US Law students have to deal with a level of complexity that just isn't found in our single-city state. The multiplicity of different ways of thinking by the law - created because each of the 50 states is, in fact, a sovereign - creates a dynamic and culture that is just not found here.

At the heart of it, it is being comfortable with uncertainty.

Singapore laws are, at their heart, stable. Singapore legislative drafting is generally overinclusive - this cannot be done in the US by virtue of the Constitution, itself a vague document. US case law often cross-germinates, and judicial ideas get tossed around, exchanged, and incorporated - what happens once in a case does not always get repeated.

More importantly, the litigious society that America is has one great impact - there is a mechanism, at least, for the people here to air their grievances. I find no such safety valve in Singapore. Here, at least, I can advise my client to lobby the legislature and sincerely mean it.

I worry for the day where a pipe in Singapore's social structure bursts. I doubt it will be a dramatic event. Rather, like a small pipe bursting in a large house, the effects will only be felt when one ignores the burst pipe long enough.

17 comments:

Huichieh said...

Nice. Sounds to me like the exams were ok.

Something else I would really love to hear you comment on: the difference between having law as a graduate program (as in the US) as opposed to an undergraduate one (as in Singapore). How do you think it impacts the way lawyers think in the two countries?

vandice said...

I like your house/pipe analogy. As for HC's remark, I do think that the quality of lawyers in the States is on average, better than in Sing, analogous to the situation of a GP and specialist. It takes 6/7 yrs to train a lawyer 'cos law is a post-grad degree. Not to mention the sheer pop. size difference which ensures there are many more better minds out there.

Anthony said...

Huichieh, Vandice,

I'll comment of both of you at the same time - the subject matter overlaps in any case.

I don't think there's a distinct difference in quality of training at the university level. I've seen US, UK and Singapore lawyers on both ends of the quality spectrum - meaning that -as lawyers- the level of diversity is enough that I cannot generalise without doing the diversity justice.

The reality of legal specialisation is that it -usually- requires a lot of practical work experience. In that sense, whether or not you have an udergrad degree before you embarked on your legal studies doesn't seem to have that much impact on the quality of lawyers produced.

What -does- impact on the quality of lawyers produced, however, is breadth - in Singapore, legal training is generally just that. In the States, because JD students have a first degree, there's a breadth of knowledge that a Singapore law student generally cannot match. Sometimes, this general breadth of knowledge is even useful i.e engineers specialising in patent law, accountants specialising in tax, economists speciallising in anti-trust, to name a few.

Another advantage the US law students have is focus - if you're going to spend EVEN more years in school, you had better know what you are doing. I don't tend to get a good sense of that in Singapore students (UK students, I cannot comment).

Once it goes out into the working world, I'd say the -quality- of work in a US firm is a LOT better - there's just a lot more variety and depth to US law than Singapore law, which tends to be very bleh.

Huichieh said...

I wasn't thinking so much of a quality difference per se; but what you said about breadth is in the ballpark of what I wondering about: it stands to reason that a first degree would an additional dimension to the overall training education of a lawyer.

Mr Wang Says So said...

Actually, legal practice is ultimately just a reflection of its external environment.

Legal specialisation is only possible / viable if the market has sufficient depth to support that specialisation.

In the US, you could have lawyers specialising in defamation cases, because there are enough defamation cases for lawyers to carve a niche.

In tiny Singapore, even Davinder Singh cannot say that he specialises in defamation cases. There just aren't enough defamation cases to keep him occupied throughout the year. So of course Davinder cannot be a "defamation specialist". He takes on a much wider portfolio including white-collar crime; commercial disputes; corporate litigation etc.

Same thing for, say, sports lawyers. Yes there are "sports lawyers" in the US & the UK - they specialise in the sports industry. A single David Beckham is a mini-industry in himself. But if you want to specialise in sports law in Singapore ...? Hahaaha.

In my own area - the financial industry - well, frankly the Singapore market is again so tiny that our "specialists" here would be regarded as "generalists" in the US. I specialise in "derivatives", for example; and by Singapore standards I would be considered highly specialised.

Yet in the US, the market is sufficiently deep for lawyers to specialise in different types of derivatives - eg a "credit derivatives" lawyer; or an "equity derivatives" lawyer etc.

Anthony said...

Hey Mr Wang!

Nice of you to drop by after a long absence. I know what you mean about specialisation and the Singapore legal market (or lack thereof). I was in the system long enough to dislike it.

The Legal Janitor said...

I've heard of NUS Law students saying, when confronted with a real life litigation issue

"wah, you face (insert name of famous lawyer here) ah! Aiyah, might as well give up lah, sure lose one."

I mean, come on! I was under the impression that the law is decided by the court, not by who your opponent's lawyer is.

The inability to deal with uncertainty in Singapore, in my opinion, results in a situation where people don't think creatively, and slavishly apply legal rules like formulae.

Anthony said...

Shianux,

In many ways the Singapore lawyers are correct - who you choose for counsel DOES have an impact on how well your case is decided.

Leaving aside the issue of fatalism among lawyers here (it's not healthy but that's not the issue), these are symptoms of a far greater problem. The Singapore legal profession is topside heavy, with partners, judges and the such wielding a great amount of power in a VERY limited circle - the legal fraternity.

I'm really not sure how much further I can comment without being in contempt of the courts, but suffice to say, the power isn't always used in the interests of justice - lawyers operate on a profit margin too, and judges one day have to retire to a consultancy.

Anonymous said...

Kangaroo and Rabbit? You gotta be kidding. I thought the only common anccestor in law are sharks!

sway said...

I'm not a lawyer, but as you mentioned, US law has a common ancestor somewhere really really long ago (I'm assuming before the puritans turned up in the US) but since Singapore law is basically a child of UK law, what's your take on UK vs US law? (Roman vs somethingoranother school?)

I'm interested.

j. said...

Nice commentary. I reckon it's difficult to pin down which system breeds better lawyers, but by my experience NUS lawyers seem to be extremely well schooled in the law as it is found in statute whereas foreign students tend to have a wider knowledge of the jurisprudence underlying the law and its supporting academia.

I do, however, agree completely with the statement that Singaporean law tends to be overinclusive. Just look at the CPC! It does tend to make life easier for us though, doesn't it.

silvermyst: I'm training in the UK now and US law, like Singaporean law, is based on the Roman common law system; that is, legislation (by means of statute) forms the basis of the law and is interpreted by the judges in cases. These cases establish precedent for future cases. In the UK and Singapore because of the relatively low volume of cases it is easy to see precendent developing.

In the US it is a different matter since different states have different laws at the state level. So whilst a case in California may be persuasive, it is by no means binding in Georgia. I think that's how it works; correct me if I'm wrong.

In the UK, however, the public does influence legislation on a far greater scale than here in Singapore, since there are more channels to air their grievances. Not on the scale that they do in Washington, of course, but hey, America's the land of the free.

Anonymous said...

...the mental equivalent of seeing a kangaroo and picturing a rabbit.

You know sometime a couple of million years ago they shared an ancestor.


Ironically enough... In Australia, rabbits are considered as pests while Kangaroo is like the Nation's symbol.

Mr Wang Says So said...

I think, Shianux, that when you have to see what real-life litigation is like, then you will have a better appreciation of why people say things like:

"wah, you face (insert name of famous lawyer here) ah! Aiyah, might as well give up lah, sure lose one."

Litigation is a lot about Preparation, and the Big Firms can do a lot more Preparation than the Little Firms. Because you have more manpower, you have more brains and you have more resources.

I remember years ago when I was doing my pupillage at Drew, and Davinder Singh was preparing for a complicated case. He wanted to argue a certain obscure point in contract law, and wanted a precedent for it.

His assistants combed through all of Singapore's case law and found no precedent. So they combed through all of England's case law and found no precedent. So they combed through all of Malaysia's case law and still found no precedent. So they combed through all of Australia's case law, and New Zealand's case law, and Canada's case law and found no case law for it.

So they asked me to comb through African case law, and I found a case in some African common-law country which supported the argument which Davinder wanted to make. And he felt very pleased.

As it turned out, it was only a contingency point. In other words, he wanted to be prepared in CASE the opponent raised a certain point, and he wanted to be able to rebut with this obscure African case. (Which his opponent, of course, never did).

In the context of the overall suit, this was really just a teeny-weeny point. Even if the opponent had raised the point, it would have been a relatively insignificant point. But Davinder wants to be so ultra-prepared that he wants to be ready to solidly rebut even the most ultra-insiginficant point that his opponent might POSSIBLY raise.

And to rebut that kind of point, he can send his people searching through thousands of cases in Singapore, Malaysia, England, Australia, New Zealand, Canada and Africa.

And he can achieve that kind of preparedness because he had TWO partners, FIVE associates and THREE pupils to do his legwork.

And even the humble little pupils he has working on his cases are the best little pupils available -

the must-at-least-must-be-on-Dean's List-for-academic-excellence kind, like Mr Wang himself.

That is why the Davinder Singhs win their cases.

~~~~~~~

On a separate note, Anthony, I'm very surprised by your remark:

" ...., the power isn't always used in the interests of justice - lawyers operate on a profit margin too, and judges one day have to retire to a consultancy."

Lawyers get paid whether they win or lose. A judge isn't doing a lawyer any big favour if he helps (in any undue way) a lawyer to win.

~~~~~~~

J - Singapore's CPC (and Penal Code) of course are all colonial relics. Essentially the same statutes were foisted on Malaysia and India.

As for public influence on UK legislation and the lack thereof in Singapore -

you might be interested to note that at least as far as commercial laws are concerned, Singapore is mostly quite content to passively track the UK (not just case law, but statutes). For example, in 1999, the UK passed its Contracts (Right of Third Parties) Act and two years later, Singapore did the same.

Seth said...

There is always the flip side.

Being able to air your grievances through the legal system is good, but you need a safety net to fliter those who abuse the system. At the moment the US judical system has thousands of backlog cases because of abusers who appeal or sue at every opportunity.

Also bear in mind that Singapore and America are two different countries with great differences, what works for 50 states and 295 million of people might not work for a city with a population of 4 million.

Anthony said...

Mr Wang,

HAH! I knew you were going to say that. No, I wasn't asserting any undue influence - but I am asserting a level of "old boy's club"-ishness that pervades the Singapore legal fraternity. Certainly NOTHING as blatant as overt bribery.

Just had to bait you. Sorry, I couldn't resist it.

j., silvermyst,

At the heart of it, the strength (and weakness) of the American legal system is diversity. The abundance of conflicting jurisprudential thought in this country is just incredible. It's a strength in the sense that it respects that that law is not always about a bright line. It is a weakness for people not used to the system - a lot of civil lawyers and even myself from a relatively undynamic common law jurisdiction have to get over the first hurdle of uncertainty.

As for which jurisdiction breeds better lawyers, I honestly think the States does. But I don't think it's because they have better people. It's just the environment that allows a stronger BREED of lawyers to survive. In terms of the rigour of the academic programs, I think that Singapore beats a lot of countries hands down, twice on Sundays and three times on monday. The smart in the Singapore law schools are REALLY smart.

Silvermyst,

Addressing another point, I think there's a BIG difference in US and UK law. Just to cite a VERY minor example, contract law in California is based very much on the exchange of benefit for benefit exchanged simultaneously. Contrast the UK approach where contracts are generally upheld, even if benefits are not exchanged simultaneously.

If I were to pin it down to just one difference between US and UK law, the difference is one of attitude TOWARDS the law rather than the law itself. My contracts lecturer mentioned that, in the States, laws are seen not only to regulate de minimis standards of behaviour, but are also de facto standards of behaviour i.e that which is legal is also moral. Having little experience with that, all I can do is to raise the contrast in Singapore - the law is strict, but it only sets out de minimis levels of behaviour. In fact, I'd even go further to say that there's a big disjunct between society's expectations of laws and what laws are actually enacted in Singapore. In the states I would say that it's the opposite. An example I can cite is that there is federal law requiring a person to give up certain seats to elderly and disabled - you don't see that in Singapore.

Anthony said...

Oh, to add one more thing,

Mr Wang is quite correct. Singapore tracks the UK quite passively. We also track Australia for copyright laws, and it -might- be that we will track the US pretty soon, given our IPR obligations under the USSFTA (though that's another fiasco that I don't really want to get into at the moment).

ivan said...

i'm not too sure if the legal fraternity functions like an old boy's club everywhere, but at least in the uk it does as well... i guess it's somewhat like the medical/insert-any-specialised-field profession?

to add on to mr wang's reply to han. Apart of prep, i believe that alot of the bigger firms work in teams, and when up against smaller firms, they just pile on the pressure, not budging on extension requests, then 'threatening' to file for judgement (ie. a default win). So the battle field is not exactly what you'd call equal.

whilst it can be said that the Singapore's penal code is a colonial relic, i might add that it can be quite misleading to call it such. The uk does not have a penal code, it is still very much based on common law, and ad-hoc legislation such as the theft act, sexual offences act etc.... it might surprising to learn that there have even been debate on whether the crime of assault and battery is found in the common law or already enshrined in statute.

lastly, in the uk you need not be a law graduate (ie. a LLB) in order to practice law. You could be a holder of any degree (including those mickey mouse ones), then take a 1 year conversion course followed by the bar. So perhaps in that sense that aids the development of specialised lawyers like those mentioned earlier ie. patent, anti-trust, sports etc...