"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, February 3, 2014

Three Lessons on Humility

As a legal practitioner, we come across presiding officers with various capabilities, expertise in varying degrees on various but not all laws. Often we as legal practitioners come across presiding officers who may not be experts in the subject matter which he has to decide on. In such circumstances, the way in which the legal practitioner appeals to the common sense of the judge becomes extremely important. This post deals with three  incidents which this blawgger came across.

Story 1:  One of the most sought after senior advocate in Mumbai calls a law firm. The receiptionist of the firm picks up the phone. The senior advocate introduces himself: "I am ***** *******, advocate of the Bombay High Court. I would like to speak to **********. Is he available?" 

For those who did not get the point, see that he did not use the term "senior"in the short conversation!

Story 2: In an arbitration proceeding, the arbitrator is not a legally trained person but an official with three decades worth experience in commercial contracts. The advocate (who is from Bangalore) is to argue in support of a petition for summoning an official of the other side. The advocate structures his arguments in the following manner:

(1) The advocate first sums up the structure of his argument
(2) He then states in layman's terms the purport and the purpose of the application.
(3) He states in clear layman's terms the law. While doing so, he cites the submission of the other side in terms of the law.
(4) Lastly he submits the practical difficulty his side would face if the application is not allowed. 

Story 3: In a domestic arbitration proceeding before a non-lawyer arbitrator, the advocate of one side while putting forth his arguments starts off with legal terms and arbitration jargon such as pre-arbitral procedure, arbitrability, etc which the arbitrator had no clue about! God only knows the fate of his application.

The lesson from Story 2 and 3 is that one should realise that throwing attitude about how much one knows may not serve the purpose. A legal practitioner's duty is to support the case of his client, not to show the presiding officer how cool he is! If we forget this, we may not be in a position to support the case of our client, for reasons that may not even be remotely connected to the merits of the case. 

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