Editor’s Note: In this article, Swathi Sukumar analyses how the profession of litigation is likely to undergo massive changes as we move into the world of remote adjudication.
In my first month of practice, after a hotly contested matter, I was told that I should be less fidgety, because the court can sense anxiety and might mistake it for a weakness in the case. Body language counts for a lot, I was reminded.
As practicing lawyers, our universe is made up equally of the spoken and the unspoken. In addition to arguing matters on merits, we think about who is watching, how we are standing, whether we can laugh out loud at the other side’s terrible argument and whether the judge’s smile during our arguments was mocking or appreciative.
We familiarized ourselves with the theatrics of lawyering from the busiest people. One senior advocate who argues keeping a folded knee on the Bar table; others who lean in front while making their strongest arguments. Another one who compulsively looks back at the gallery to check who is watching, someone who gesticulates so violently, he might hit you if you are sitting next to him.
We learnt to recognize power when we saw it. Deliberate flourishes, long and meaningful pauses, pin drop silence in the gallery, and the liberty of changing the volume and tone of one’s voice without fear of offending the Bench, were hallmarks of seniority. The confidence to crack a joke during a hearing, the right to negotiate convenient dates without a push back, and the ability to look fed up at the purported incompetence of one’s briefing counsel, were markers of power.
We could recognize the confidence of people who have walked these corridors for several decades. We learnt to recognize success when we saw people running from court to court.
We endured some terrible puns from the Bench and the Bar, which would have the gallery in split. But often, the laughter was in support of the banter rather than for the joke.
We got used to walking into court knowing that an unknown audience will watch you doing well or being challenged or being insulted. And that on days when you do well, and you turn around to walk out of court, there will be people trying to identify you and some may even try to find out who you are. On days when you don’t do so well, the gallery will look at you sympathetically, but also like they knew it was coming all along, and really what did you expect with that line of argument.
We taught junior colleagues the importance of organizing sets of judgments in the order of our arguments, because flipping through papers during a hearing tells the court that you have not bothered to prepare. We taught them that it was a cardinal sin to radiate under-preparedness.
As women lawyers, we re-learnt gender roles, almost as if we could ever forget them. Raising your voice and responding to someone could make you sound too aggressive, so we walked the tightrope between being nice, being assertive and avoiding aggression, which is as tiring as it sounds. Trying to smile at jokes from our colleagues, without looking giggly. Trying to look neat without worrying about one’s appearance or what it might say about one’s competence.
Over the years, we institutionalized banter and formed an odd camaraderie with many people in court, including those whom we can only identify by face and many whom we may never see outside court.
And yes of course, the system has problems: it is broken in many places. Too few judges, too much time wasted, discrimination, inequality, and a pandemic that threatens the profession as we knew it.
As we move into the world of remote adjudication, we are in an uncertain territory where opponents may appear in baniyans, laptops may run out of charge mid-hearing, cameras may point at the ceiling, or microphones may malfunction. The question is not whether technology in adjudication is good or bad, much has been said about it. Regardless, let us acknowledge that we may lose the theatre that is law practice.
After all, the wry smiles, the eye-rolls, the exasperation, and the high-fives that we exchange outside the court have been the most reliable part of the unpredictable ride that is a career in litigation. As we embrace the new reality, let us also step back and allow ourselves to feel nostalgic for a community that has always greeted us with warmth and friendship, which we can no longer take for granted.
Swathi Sukumar is an alumni of the NALSAR University of Law and Columbia Law School. Presently, she is based in Delhi and has over fifteen years of experience in intellectual property disputes.
This article was originally submitted to the Bar and Bench, and can be accessed here.