By Gordon Rushton Tuesday, November 30, 2010

'Practice', they say, 'makes perfect'. Perhaps in some instances. Before you start practising, however, it would be worth your while to read Morris: Technique in Litigation.
While reading this book will not, without many years of practical experience, make you a specialist litigator, let alone a perfect one, it will inform you of the sort of things, which you ought to know as a litigator. It may also save you the embarrassment of learning these things firsthand from an unsympathetic judge in open court. Cases that ought to be won will continue to be lost due to inexperience and ignorance. It may seem elementary to practitioners of relatively few years' experience to 'remember to put your case to the witness' when crossexamining, yet it is surprising how many inexperienced practitioners are reminded of such fundamental techniques at the expense of their client's case.

Morris: Technique in Litigation is recognised as the preeminent South African work on court technique and while invaluable to aspirant and fledgling advocates and attorneys, it serves as a useful reminder, even to the experienced practitioner, of those techniques which need to be practised in order to be a competent litigator.

Morris: Technique in Litigation was first published in 1969. In the 6th edition, published in 2010, John Mullins SC and Carlos da Silva SC have significantly revised and updated the 5th edition, which was published more than seven years ago. The chapters in the 6th edition have been reorganised and additional headings have been provided to make this edition more userfriendly than previous editions. Case law has been updated and this edition has a number of references to judgments, including Constitutional Court judgments, which postdate earlier editions.

The 6th edition has retained many of the humorous anecdotes, which have characterised earlier editions, while benefitting from Mullins and da Silva's extensive involvement in the training of young advocates and on their own experiences as members of the Pretoria Bar. The chapters in the 6th edition deal with such topics as: 'The law and the practitioner'; 'Preparing for practice'; 'How
to approach cases'; 'The technique of pleading'; 'Pretrial procedure'; 'Advice on evidence'; 'Preparation for trial'; 'Technique in the conduct of trials'; 'The opening address in civil cases'; the leading, crossexamination and reexamination of witnesses; 'Closing your case'; 'Applying for absolution from the instance'; argument; 'Applications'; 'Technique in appeals'; and 'Criminal cases'.

In the chapter on 'Pretrial procedure' Mullins and da Silva have included useful sections on separation of issues and tenders for settlement, topics that were either lacking from previous editions, or dealt with in a cursory fashion. Over the years the practice seems to have developed of requesting particulars for trial as a matter of course. Mullins and da Silva warn the reader not to request further particulars unless the information sought is essential for the preparation for trial, or to obtain a useful admission, as one runs the risk of drawing one's opponent's attention to aspects of the case, which might otherwise have been overlooked.

The 6th edition also introduces a short but welcome section on the pagination of pleadings, an exercise which all too often in practice is neither systematic nor in accordance with the applicable rule.
The chapter on 'advice on evidence' has been supplemented with an appendix which provides a useful framework for the type of advice which should be given.

In some instances Mullins and da Silva have expressed a view which is different from that expressed in earlier editions of the book. For them it is essential, rather than merely permissible, as stated in previous editions, to prepare one's witness for crossexamination. While emphasising that each case must be decided on its own merits, they are also generally of the view that one should try to take the sting out of a potential problem during evidenceinchief, rather than to leave it for crossexamination in the hope that it may be overlooked, as suggested in previous editions.

The 6th edition also provides an informative section for the uninitiated on how a trial generally develops, by reference to the procedures applicable in the Gauteng divisions.
The chapter on 'Technique in the conduct of trials' has been expanded and updated. This chapter has been supplemented by another appendix which contains some helpful pointers on matters of style, address and manners. Examples of how to lead the evidence of both lay and expert witnesses and how to crossexamine such witnesses are also provided by way of appendices.

The 6th edition also benefits from a complete revision of the chapter on criminal cases by Johann Engelbrecht SC of the Pretoria Bar. All in all Mullins and da Silva have done well to update and revamp earlier editions of Morris: Technique in Litigation, notably with the use of appendices and a better layout, while retaining the style and approach, which characterisedthe earlier editions.
This book is recommended in particular for recently qualified practitioners who would do well to avoid having to learn the art of litigation, literally, by trial and error.