Introductory gratitude and confessions
I thank you most sincerely for the privilege to be here today.
It always feels good to be back to this great University built from the remarkable vision of true leaders like Chief Obafemi Awolowo and Chief Samuel Ladoke Akintola. These two lawyers, and several others, were part of the core team that conceptualized and operationalized the idea of a citadel that could help answer some of society’s developmental questions. I truly hope Obafemi Awolowo University, despite its many contradictions and challenges; will grow to make itself a space to deeply engage and freely think up solutions to society’s problems.
I am speaking today on a topic I neither have the best ideas on nor even have all the answers to. That is assuming the few things I have to say can even be considered as answers of any sort at all. Giving my confessed limitation, my preferred approach will be to raise posers around the issues while I hope the reflections will go beyond here for all of us as we continue to figure out how best to be useful to our profession, our communities, our country and ourselves.
No pretense, the Law is as much a service as it is a business
Now, let us be clear from the outset. Legal practice is a service as much as it is also a form of trade and exchange of services for economic value. You will not be wrong if you call it a business venture, an economic pursuit and so on. This however does not diminish the fact that it is an important public service of some sort especially if viewed in a broader context. So long as the services we render as lawyers are many times done in anticipation or exchange of economic reward and payments, legal practice, without any pretense; is as much a type of economic activity as many other types of services or trade. And it really doesn’t matter whether it is legal practice within the private or public sector.
A poser to think about; and the skills to acquire
The first poser I will be happy to leave us with is whether we can possibly maintain the fair balance between our legal advocacy and business pursuits without sacrificing our responsibility to deepen the cause of truth for our own good and that of the society?
Before I provide my own perspective around this poser, I should quickly touch on the very important subject of the relevant professional and social skills I think every type of legal advocate or an aspiring one must acquire. I clearly do not have an exhaustive list but I think the following tips may help:
1. We must cultivate personal integrity and maintain professional ethics.
2. We must all have an insatiable thirst for knowledge and make every legitimate effort to continuously seek all kinds of broad and specialized knowledge.
3. We must have a sound and thorough grasp of language and be able to express our thoughts with clarity.
4. It is not enough to know the letters of the law. We must understand the spirit of the law. To understand the spirit of the law, we must know the dynamics of our society and the thought processes or socio-economic/cultural issues the Law seeks to regulate, control, expand or abolish. We must love the law but I think we must love the society more.
5. We must learn about as many public policy issues, industries and commercial/business directions as is humanly possible.
6. We must interact and have sound human relations with our fellow human beings.
7. We must possess candor and constantly cultivate humility.
8. We must always understand the argument of the other side even when we disagree.
9. We must be able to work and relate with others in a collegiate and cooperative manner. 10. I don’t know how important this is but I will say some sense of humor is good too. A good advocate shouldn’t be some sort of insufferably cold personality. 11. Above all, we should always ask God for mercy and the grace to do right.
Connecting the skills to the business
But how can we put all or some of these in some commercial context? We may all agree that it has become a boring cliché to say we live in a globalized world. Everyone says the world is changing and all of that. Quite boring cliché, yes. But it is undeniable that the world is truly becoming more connected today than it has ever been in the entire known history of mankind. How can an advocate or legal business man or woman be truly useful to a world s/he does not understand? As such, we must self-teach and develop ourselves beyond the classrooms to understand the dynamics, disruptions and competing interests going on around our world. That could help us to offer valuable advice and help us understand where legitimate revenue and income to be made may be too.
Let’s take examples. The many socio-economic and political problems in Nigeria will require legal frameworks and services for whatever solutions the country is gradually able to think through for implementation. Brexit, Governance, Technology, Climate Change currently being discussed by global leaders at the ongoing United Nations General Assembly and the African Continental Free Trade Agreement (ACFTA) are among the countless borderless developments that will impact on legal business in many ways. What are the legal advisory and business opportunities these local and international developments potentially throw up in several areas of law such as immigration, international competition, technology/data protection, natural resources and maritime resource control, constitutionalism, trade and investments, citizenship e.t.c?
How for example will these developments affect the economic climate and interactions around and with Africa and what are the legal solutions that will be required? These are legitimate thoughts for a business and public service-oriented advocate to consider for his/her legitimate income and to help grow his/her society too. I guess with the little we have said here, it cannot be overemphasized that an advocate must continuously deepen his/her knowledge and thereafter legitimately connect that knowledge to his/her income generating business.
Back to the poser and then; some non-classification for different types of lawyers
I now return to my earlier poser which is that; as lawyers or aspiring ones, can we possibly maintain the fair balance in our advocacy and business pursuits without sacrificing our responsibility for the truth?
Well, as we often find out in practice, there seems to be a constant attempt to distinguish the corporate commercial transactions type of lawyer from the Litigation/Dispute Resolution type. Put loosely, the corporate commercial transaction type of lawyer is considered the lady/guy who helps the business community to structure their businesses. He/she helps to create legal frameworks to boost or legitimize business deals and generally make business enterprises and the aspirations of the business community run smoothly. The Litigation/Dispute Resolution lady/guy is considered the person who steps in once there is a conflict especially of a type that would necessitate feuding parties to fight it out in an adversarial contest whether in the regular court room, some specialized Tribunals, an arbitration panel and so on.
For our purpose today, I make no distinction between both classifications. Indeed, such narrow classification often ignores the public sector lawyers who oversee vital services such as law reforms, law interpretation, legislative drafting/engagements, law enforcement, e.t.c. I therefore make no distinction between any of these loosely classified types of lawyers. My view is that as far as what you do is to act for or speak for anyone or structure a deal or negotiate an agreement, or develop a law etc, all in your capacity as a lawyer, you are essentially engaging in advocacy. It is atavistic thinking to suggest that advocacy is limited to court room exchanges, public arguments and all of that. Advocacy is really an art of persuasion and I think that is present in every lawyer’s work, whether he/she ever enters the courtroom or just interacts with boardrooms, trade associations, public institutions or whatever description he/she chooses to describe his/her clientele by.
Ways to help the cause of truth in whatever advocacy space we play or aspire to play in
Having said all these, we should then ask that as a Litigation/Dispute Resolution advocate or an aspiring one, are you helping or hoping to help the Courts/Tribunals to reach the truth or are you helping or hoping to help to confuse or indeed deflect attention from it or even outrightly helping or hoping to help to kill it?
Regarding this, one area I will leave us to think about is to ask ourselves why the society has perpetually grown impatient with and become highly skeptical of the courtrooms? One obvious reason is the inordinate delays in the resolution of matters in courts at all levels. And why do we have these delays? One factor is the completely lopsided and inappropriately centralized nature of our judicial system. A second reason is something more relatable. It is the perennial resort to technical jargons and all those boring procedural booby-traps that sometimes get subordinated to the practical substance of why people approach the courts to try to resolve their conflicts. If you study our law reports closely, you will find that a huge percentage of decisions being reported teeter around procedural questions as against substantive issues.
You will find stuff as ridiculous as objections over a lawyer’s signature mark and the absence of a so-called ‘tick’ to ascertain the signatory even when such lawyer is standing right before a court and asserting he/she signed the court document and/or even attests to that by an Affidavit on oath. You will be surprised that all these remedial steps may be held as immaterial and that such case or document thereby must be struck out as the court could be deemed as ‘having no jurisdiction’ to entertain it. My question, which I suspect is also yours, is where the substance of the real-life grievance or dispute the feuding parties brought to court lies in all of these?
Where is the priority for those real-life questions people take to courts in all the over dramatized procedural booby traps? In my view, such pointless technical indulgences betray the cause of truth because they deny the society the chances for quick resolution and distribution of just dues to the actual parties and human beings seeking justice before a court. The approach to procedural lapses should be mostly remedial and not considered ‘incurable’ as it sometimes has been. Once the real issue the citizens take to court stands unresolved, then we should think again and consider if we have really developed the truth or impeded it.
As a corporate/commercial transactions advocate or an aspiring one, do you hope to advice and structure deals that are fair to all parties including the party you are not representing or you simply just like to help to promote shylock, mendacious or cavalier commercial behavior and all that? If you hurt the integrity of commerce by your unfair clauses or mendacious negotiation tactics, you are failing in your responsibilities for the truth and you are under-developing society even if it appears your private bank accounts are developing. If you are a public sector advocate or an aspiring one and your advice or legislative propositions or interpretative patterns do not protect the vulnerable in the society or merely caters to the profit motives of the powerful and elite class in the society, you are failing in your responsibility to advance the truth and you are ultimately not helping to develop the society that has helped you thrive.
Closing question! But what really is this ‘truth’ we seek?
I will close with this question. What really is the truth? This is a search I think may likely outlive all of us in this gathering. It appears a search that has been on for generations. If we are to try to define what “truth” really is in any situation, there will be no end to the exchange of polemics and the perspectives we would have here. Asides the problem of identifying what the truth itself may be, a further question will be what exactly is truthful about ‘the law’ itself that we huddle around as advocates and aspiring ones almost every day of our lives?
Does the fact of something being the law make it the truth? And is what is true necessarily always what is the law? Oftentimes, it will appear the last three questions here are not always capable of getting answers in the affirmative. This will be apparent to us when we consider that crimes against humanity such as the transatlantic slave trade, colonialism, segregation against people on the basis of their sex, skin color, circumstances of birth, religious views, etc have all had the support of the law at different times in history. The United States, as great a Nation as it is, had its ‘Jim Crow’ era laws enforced and interpreted by even its highest Court, the US Supreme Court, all to promote and justify segregation. During the Apartheid era, South Africa had laws promoting the dehumanization of blacks and people derogatively classified as coloured. Nigeria had its dehumanization military era decrees and still has some oppressively enforced laws to date. Therefore, the law is not necessarily always the truth neither is the truth necessarily always the Law. However, in all its contradictions, the law remains a formidable tool that can incredibly transform society depending on the minds and hands directing it.
You will note that I have been unable to provide a definition of what the truth is. This is deliberate and because I do not think I have a full grasp of what it is myself. But I ask that we should all begin or continue our search for it. And in searching for the truth in all situations we find ourselves as advocates or aspiring ones, my prescription will be to look beyond the law itself as clearly law could either be good or bad, liberating or oppressive, truthful or untruthful. Let us look at what could possibly be the good of humanity even when the law appears programmed towards an opposite direction. What position best promotes the common good? What facts are accurate, what facts are not and which of these sets of facts are we projecting? What position dignifies the other side better even when we fiercely disagree with them? What position would we take if the person(s) on the other side were us, our family, friends or children? If we were not earning a fee, will a position we take be different? Is our motivation always to win the argument or to win justice for all sides?, etc.
In your search for the truth and our responsibility to uphold it, I ask you to add your own questions and try to find answers to them as we all continue our journey in this sometimes-exciting legal advocacy space. Above all, may we all find peace with the truth, and may it set our society, and all of us, free.
I thank you all, once again.
**(Being the prepared remarks delivered at the 2019 All Nigeria Universities National Advocacy Championship (ANUNAC 2019) organized by the Moot, Mock & Debate Committee of the Law Students Society, Obafemi Awolowo University, Ile-Ife, Nigeria on Tuesday, 24th September, 2019 at the AwoVarsity Hall, OAU, Ile-Ife).
*Akintayo Iwilade is a Legal Practitioner and Senior Associate at SimmonsCooper Partners, one of Nigeria’s leading Law Firms.