Thursday, 13 April 2017

A Few Lessons in Litigation

Having spent 4 years in the field of litigation (which is admittedly not much at all), I’ve learnt a few things about this profession (apart from blatant sexism) that were never taught in law school. In fact I don’t think they can be ‘taught’ anywhere, one can only learn them from experience and the guidance of Seniors who actually give a damn about their juniors.

While litigation offers many lessons, this is some of the stuff I’ve picked up while arguing / observing arguments in Court (because it's a slow day).
  • We do not get to choose our Judges. Our job, as lawyers, is to represent our clients to the best of our ability and hope for a favourable outcome. However, advocacy requires a certain ‘clairvoyance’, in that, you should be able to understand your Judge and how he/she judges. It doesn’t overshadow the merits of your case but it makes a tangible difference to the outcome.
  • Some Judges are candid enough to ask you if they don’t know what a particular (unpopular) word means. They will ask you questions. They make your job easier because you know what and how you need to argue.
  • Give priority to the questions posed by the Judge over your own arguments. Answer him/her first, come back to your point after that.
  • Some Judges will not like to admit if they do not know something. They make your job harder because you think they understand what you’re arguing, but they’re actually not on the same plane as you are. So you will have to gauge whether they understand you entirely and correctly.
  • You must prepare your case assuming the Judge doesn’t know *anything* but while presenting it, you must do it so that the Judge feels he/she is all-knowing. The Judge must never be made to feel that you’re trying to put him/her down or that you’re spoon-feeding him/her (though you may well be).
  • Some Judges are unreasonable and cantankerous. Do not argue with them or belabour a point that they do not appreciate. Change your argument to try and get them to listen to you by showing them more respect than necessary.
  • Do not quarrel or argue with the other side in front of the Judge. Always try and be fair to the other side. Be polite and respectful (but firm) in your exchanges; the Judge will make a note of it.
  • If you are not a Parasaran or a Nariman, you will not get the kind of indulgence from the Court that they get. Make the most of what you get, stick to the point most important for your case.
  • If you MUST say “My Lord” or “Your Lordship”, do not repeat it multiple times in the same sentence. It is annoying and breaks the flow of your argument. Say it once or twice and be done.
  • Do not open your mouth if the Judge is grilling the other side (unless there is some factual discrepancy); he/she is doing your job for you. You may think that your client will feel that you did nothing but chances are, you’ll spoil your own case if you interfere. 
  • If you do not have a junior, you will not have the luxury of stuff being handed to you on a platter. Don’t carry more papers than necessary, you will likely fumble while searching for the right document.
  • Lastly, do not hold back while discussing an idea with friends or colleagues. The more you discuss, the more you will know and they will too. It’s a win-win for everyone.
There are a few more things I'd like to write, about what litigation teaches you, but that shall be the subject matter of another post. For they are a little gloomier.

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