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Expectations of the Bench from Young Advocates

In this interesting article, Justice Ruma Pal, a former judge of the Supreme Court of India, offers an insider’s perspective on tricks of courtroom lawyering. She takes the readers through the necessary ingredients which make up a ‘legally successful lawyer’ as distinguishable from a ‘successful lawyer’. The didactic article is addressed to young lawyers in a very personal and direct tone.

The first national law university was set up in 1987, more than three decades ago, with the expectation that its graduates therefrom would produce the finest talent in India to improve the standards of the Bar, Bench and thereby, the judicial system as a whole. Because of this expectation, all national universities were conceptualised to be autonomous and placed under the supervision and superintendence of respective state high courts.

However, unfortunately, the finest talent produced by these varsities did not join the legal profession at the bar. The expectations were belied and the fruits of the finest legal talent are till date being reaped in by law firms in India and abroad. This article is addressed only to those who aspire to fulfil the initially ideated expectations of national law universities, to those who intend to practice the law in courts.

Imagine a scenario where you have entered a courtroom as a lawyer for the first time, duly outfitted in white and black. Your new, maybe borrowed or inherited gown sits a little unfamiliarly on your shoulders and your bands are tied firmly round your neck. This is the “uniform” which marks you out from the crowds milling around in the courtrooms, the corridors and beyond. The lawyer’s gown, like all uniforms, is also a great leveler. Your background is effectively snuffed out.  The black and white outfit, the gown and the bands depict your belonging to a particular professional community. Other things that then define you are your conduct and performance at the bar.

Before discussing the expectations of the Bench from a young lawyer, I would like to lay down a proposition. Though the reasons for anyone wanting to become a lawyer may differ, I assume that all aspirants do want to be successful. I shall also assume that all wish to gain that success in a legal manner (I will call this legal success) because we do have lawyers who think they are successful by making money in the legal profession in an extra-legal manner. Such lawyers variously known as “fixers” or “sharp practitioners” are ultra vires the scope of this article.

The major premise for this article is that legal success is impossible to achieve if a lawyer’s relationship with the judge is “bad.” The word bad need not necessarily mean an open animosity but includes a range of negative reactions including a bias, irritability, sharpness, dismissiveness or simple ignorance. Therefore, whatever be a lawyer’s object behind joining the profession, sans building an impression of trustworthiness and respect in the bench, his or her efforts will prove to be futile. The simplest answer to the frequently asked question on how to build this reputation is that there is no short-cut for the same. What follows is a succinct exposition of some of the attributes that judges look forward to witness in a lawyer arguing before them.

Presentation

Presentation is extremely important for a litigating lawyer. A lawyer’s appearance, including his or her bands and gown, creates a prima facie impression in the mind of the judge. While shabbiness, unbuttoned cuffs or uncombed hair create an impression of sloppiness, elaborate hair-dos, jewelry and fancy or casual outfits give an impression of frivolity and a lack of professionalism. Though first impressions are extremely important, more important are the continued impressions which slowly, over a period of time, build up to the ultimate established reputation of trust and respect.

Humility

The starting point for every lawyer is an opportunity. A lawyer’s face must become familiar to the judges. Most of the lawyers may not be as flooded with briefs as their more fortunate colleagues who have may have connections or relatives in the profession. However, these so-called fortunate people often suffer in the long run as many-a times, they start addressing the court before they have learnt the craft. In this process, they become complacent owing to wrong assumptions that they will get briefs, howsoever shoddily prepared they may be on any given day. Due to this, they develop a misplaced arrogance which is an anathema to a sustained successful practice. Therefore, these fortunate people may not be as fortunate as others, or they themselves, consider them to be. In pointing out the possible pitfalls for them, I have highlighted three of the main characteristics that judges look for in a lawyer –  the craft of addressing court, level of preparation and humility.

Addressing the Court

Over the years, lawyers have perfected, at least, the appearance of humility before a judge. They rise when a judge enters or leaves the courtroom, bow before a judge, pepper their address with “Ladyship or Lordship or Honour” as the case may be, and start the arguments with a “may it please the Court.” When I presided over a three-judge Bench in the Supreme Court, the other two judges on the Bench were male. However, probably because I was presiding, some lawyers appearing before us addressed the Bench as “Your Ladyship.”  One of my “Brothers” took umbrage and turning a wrathful eye on the counsel said, “Are we not part of this Court?”  Such issues can be resolved by the simple expedient of using the gender-neutral phrase “The Court.” Additionally, whether the judge is familiar with the subject of the case or not, make the judge feel that he or she is omniscient by saying “As your lordship/ladyship or honour knows.”

While addressing the Court, always try not to enter into a confrontation with the judge. This is important as if the case can be decided either way, as most cases are, chances are that you will lose. Learn to step back. If the judge is absolutely against you, don’t fight for a win but try to negotiate for what in the specific circumstances could be a good deal. For example, in a labour dispute arising out of the termination of the services of an employee, the employee claimed that the dismissal was wrong because of a technical flaw in the dismissal process. He prayed for reinstatement and payment of full back wages with interest accrued. The lawyer for the employer had argued that the employee was dishonest, that the claim for full back wages was to a large extent barred by limitation and, that in any event, the employee had been gainfully employed elsewhere during the pendency of the proceedings. During the course of arguments, it became evident that none of the arguments of the employer were acceptable to the court. Obviously, the lawyer for the employer could have simply waited for the inevitable dismissal of the case and could have advised the employer to challenge the decision by way of appeal. However, this would have not only delayed any relief to the employee for several years, but would have also cost the employer both in terms of lawyers’ fees and facing the possibility of losing in appeal. But, the employer’s lawyer stepped back and with the consent of his client, offered to pay back the entire wages immediately, provided that the employee gave up his claim for reinstatement and interest. The employee agreed and the matter ended in an order which left every party satisfied, though not fully, but in good measure. Most importantly, the judge recognised the courtesy of the employer’s lawyer and the fairness of the offer. Therefore, the next time that lawyer appeared, that judge was ‘favourably’ inclined towards that lawyer as being a reasonable and fair counsel. Incidentally, although your relationship with your client is not the subject of this article, putting the possibility of earning more fees by a protracted litigation process before your client’s interests may win any lawyer some immediate money, but is sure to damage his/her career in the long run.

Fighting, Winning and Losing

Most young inexperienced lawyers persist with arguments, repeating themselves desperately. While it is important to prove to the client that his/her lawyer “fought” well, provoking the judge’s irritation might open the lawyer to being publicly rebuked, which is disastrous for a lawyer building up a practice. A persistent lawyer would not only lose the case but also colour the judge’s and other possible clientele’s perceptions of his/her abilities for a future before that judge. This is what the Supreme Court had to say about a Senior Counsel:

“Not only were the arguments advanced with undue vehemence and unwarranted passion, reflecting identification of interests beyond established conventions but were of degrees not usual of enlightened senior counsel to adopt…It is needless for us to say that neither rhetoric nor tempestuous arguments can constitute the sine qua non for persuasive arguments.”[2] [Emphasis supplied]

However, in the real world, there are some cases where the judge may be said to have unfairly taken a hostile attitude towards a client or where the lawyer may be unsure if the judge has understood the facts of the case or the relevant law. Here, it would be a good idea to ask for leave to file a written note before the judge closes the arguments. This ensures that the judge ‘gets it,’ and in any event, it becomes a matter of record for arguments before the appeal court obviating the possibility of the appeal court saying that the contended point was not raised before the previous court.

A lawyer must remember that irrespective of what he/she thinks, he/she has never won or lost, only his/her client has. A lawyer merely puts forward the client’s case to the best of his/her ability. It is the putting forward of the case which should matter, and not the outcome, because every case that a lawyer takes up is not winnable. Irrespective of a win or a loss, a lawyer must conclude all his/her arguments with a bow and say, “I am deeply obliged.”

Preparation

When Hamlet was plotting to unmask his uncle as the murderer of his father, he remarked:

“If it be now, ’tis not to come. If it be not to come, it will be now. If it be not now, yet it will come—the readiness is all.”[3]

Most of the lawyers will not have an early opportunity of addressing the court at all. But every such opportunity, howsoever small, must be grabbed and juiced perfectly –  whether it is asking for an adjournment, requesting for a pass-over, or making a prayer for listing a matter for hearing. Irrespective of whether a lawyer receives his/her own brief of the case or whether he/she has to work on a senior counsel’s brief, he/she must be well read about the case.

A lawyer must prepare an index of all the documents noting the page numbers. He/she must also prepare a chronological list of events with reference to paragraph numbers in the pleadings. This will give the lawyer a mastery over the facts. Courts are often called as courts of fact rather than courts of law. Then, if there is time, it is advisable for a lawyer to look at the law strictly in the order of

  • the statutory provisions applicable;
  • the leading cases on the point – both for and against the client’s case;
  • the latest decisions of the courts or record-the Supreme Court and high courts.

While searching for cases, a lawyer must not lay before a judge any cases without reading it or list cases only on the basis of the head-notes. The consequences for this can be disastrous as head-notes are apt to mislead. A lawyer must keep such list prepared in every case he/she has worked on as it proves to be invaluable in the later legs of practice. On following these steps, not only will the senior be impressed and take you as a junior in the next case, you shall also be remarked for assisting your senior actively in the court.

Very often, none of the counsels briefed in the matter are available in the court except you. You are entitled to, and should as for a pass-over on the first call. If on the second call you are still alone, more often than not, the Court will ask: “What is the matter about?” Seize the opportunity and clearly give the Court in brief the gist or the issue involved in the case. If the Court says: “alright then begin,” you should first say that you are led by whoever the senior/s is/are. This shows respect for the seniors and also prepares the judge for arguments being taken over mid-flow by a senior. Start with the facts, then crystallize the issues and then place the cases. As it has been wisely put:

“If you have a good case on facts, thump the facts; if you have a good case in law, thump the law; but if both the facts and law are bad, thump the table!”

Candidness, Truthfulness and Genuineness

Above all, be articulate. Speak in a measured tone, taking a deep breath before starting. If there is a decision against you, cite it and then try to distinguish it from the case you’re arguing. This way you will have taken the wind out of your opponent’s sails who may have wrongly anticipated that your arguments would be trumped by the decision(s) in their appendix. But more importantly you would have created an impression on the judge as a lawyer who can be trusted to place the law fairly as it exists. Suppression of a fact or law never works, not only because it is unethical, but also because it destroys the chances of a win as the other side will raise the contention and you will be mentally assessed by the Court as ill prepared or a sharp or manipulative practitioner. For the same reasons, never cite an overruled decision. It is fatal to your practice. One of my earliest experiences in the Supreme Court regarding this was when the presiding senior Judge leaned over to me and whispered, “Be careful of this lawyer – very sharp practitioner.” With such a reputation, the lawyer has little chance of getting a discretionary order in that court or indeed before any other judge who may have heard that warning.

Remember, a judge’s ability to deliver qualitative justice depends on the arguments of the counsels arguing before her or him.[4] The judge’s reliance is based on the trust that the counsel will conduct cases in a just and proper manner to assist the court and shall not mislead it. Courts have readily acknowledged this assistance and recorded their appreciation of the Bar.[5] However sometimes, that trust is betrayed. Some examples of such betrayal can be when a lawyer cites a judgment of a court which has been overruled without disclosing the fact that it has been overruled, knowingly makes a misstatement of fact,[6] stays silent when it is apparent that the judge has assumed a particular fact to be correct, or unnecessarily delays the hearing and disposal of cases by misusing the facility of adjournment available to the counsel. Adjournments are often used so that interim orders once obtained continue for a long time merely on the ground of counsel’s illness.[7] On one occasion, a prayer for adjournment was sought and obtained on the ground that counsel for a party was ill, while in fact, that very day, the same counsel was appearing in another Court.[8] While building up a practice is necessary and you owe a duty to your client, a lawyer’s paramount duty is to the Court and the judicial process which he/she is responsible for sustaining. Both judges and lawyers have been described as partners in the administration of justice.[9] “

“It is a mistake to suppose that [a lawyer] is the mouthpiece of his/[her] client to say what he wants: He/she must disregard the most specific instructions of his client, if they conflict with his/her duty to the court.”[10]

It is true that when one uses the word “Court” in the legal context, one normally refers to the judges. But as far as the litigating public is concerned, the Court is the lawyer. It is the lawyer with whom the public interacts and through whom the public can access justice, and every individual has a constitutional right to that access. Access to justice has been variously described as “the basis of the legal system,”[11] “the most basic human right,”[12] “vital for the rule of law,”[13] and as a “fundamental right.”[14] It is a lawyer’s constitutional duty to protect that right. A lawyer cannot, and must not, act unconstitutionally.

Conduct

If a lawyer is not briefed in any matter, he/she must not leave the court or sit gossiping in the libraries. A lawyer’s face must be familiar to the court. He/she must also not carry on a conversation in court or play with his/her mobile phone as it is highly disrespectful towards the Court.

Outside the Courtroom, one must never gossip about a sitting judge. There is a powerful grapevine which will ensure that your opinion of that judge will get back to him/her. Of course, if you resolve not to appear in that judge’s court, go ahead and gossip. Before we leave the subject of resolving not to appear before a particular court for any reason, remember that when you are briefed to appear in the matter before that court, professional decorum and etiquette require you to give up your engagement in that case so that the party can engage another counsel.[15]

Courage

A lawyer must have the courage to stand for his/her principles. Apart from adding to his/her self-respect, this will mark the individual out as a person to be respected by the public, the colleagues and the Bench. One must always have the courage to stand alone, as it is ultimately a lawyer’s reputation which is at stake. As Lord Denning, M.R. in Rondel v Worsley,[16] said:

“He [the lawyer] has time and again to choose between his duty to his client and his duty to the court. This is a conflict often difficult to resolve; and he should not be under pressure to decide it wrongly…. [W]hen a barrister puts his first duty to the court, he has nothing to fear.”

Discipline

A discussion on the relationship between a judge and the lawyer cannot be completed without being aware of the disciplinary measures that may be taken against a lawyer for his/her conduct. After the Constitution of India came into force, the Parliament was given the power to enact laws relating to persons entitled to practice before the Supreme Court and the High Courts.[17] In exercise of that power, The Advocates Act of 1961 was enacted. The jurisdiction to set and enforce the standards of professional conduct and etiquette is now vested in the Bar Council of India and the power to take disciplinary proceedings with Disciplinary Committees of various state level Bar Councils as well as in its national counterpart.  But, Section 34 of the 1961 Act also empowers the High Courts to make rules and laying down the guidelines subject to which an advocate shall be permitted to practice in the High Court and the courts sub-ordinate to it.[18] The same power has been conferred on the Supreme Court by Article 145 of the Constitution.[19] This is apart from the Court’s powers of contempt – as ultimately, it is for the Court to decide who can or cannot appear in the Court. So, when the President of the Delhi Bar Association on 26th September, 1991 with a large number of other lawyers stormed various court rooms of the Delhi High Court and stood on the chairs, tables and the dais of the Court Masters and shouted abuses at the judges while the courts were in session,[20] or when a senior member of the Bar and also the Chairman of the Bar Council of India and the President of the U.P. High Court Bar Association, Allahabad tried to browbeat, threaten, insult and show disrespect to a judge of the High Court, the Supreme Court and the High Courts exercised their jurisdiction to prevent the contemner advocate from appearing before them till they purged themselves of the contempt,[21] and barred the malefactor(s) from appearing before the courts for an appropriate period of time.[22] In another case, the Court directed the registry not to entertain any application by way of public interest litigation by a particular advocate in the future.[23] In one of Shakespeare’s plays,[24] one of the characters suggested, “The first thing we do, let’s kill all the lawyers.” Let us hope it never comes to that.

When the high officials of the Bar Councils and Bar Associations act in this manner, it takes courage for the rest to behave otherwise. Hopefully, none of the aspiring lawyers of current generation should ever lack the courage to be different. There is no need to enter the profession and there is no need to stay, but having entered it and having elected to stay and enjoy its amenities and privileges, its rules must be obeyed and duties must be performed.[25] The rules of the ‘profession’ require members to behave and conduct themselves in keeping with high standards of behaviour.[26] But the overarching rule is that lawyers must uphold the law – and legal success, is then, inevitable.

What we and our courts need today are ‘legally successful lawyers’ who possess both, the competence and the courage to tread beyond mere material, personal and selfish ‘successes’.

Mrs. Justice Ruma Pal is a former judge of the Supreme Court of India.

Notes

In the featured image, lawyers can be seen waiting in the gallery at the Delhi High Court premises.

By |2018-09-21T22:34:35+05:30September 18th, 2018|Judicial Ethics, Professional Ethics, Success in Litigation, Supreme Court of India, Tricks of the Trade, Young Lawyers|0 Comments

About the Author:

Mrs. Justice Ruma Pal holds a B.C.L. degree from Oxford University. She started her practice in 1968 in Civil, Revenue, Labour and Constitutional matters in the Calcutta High Court. She was appointed as a Judge in the Calcutta High Court on 06-08-1990. She was elevated as a Judge of the Supreme Court of India on day of Golden Jubilee of Supreme Court of India - January 28, 2000. She retired from judgeship on 03-06-2006.

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