Art of Advocacy in the Post COVID-19 times
Updated: May 26, 2020
Art of Advocacy in India never before is going to stand the test of time in the days to come particularly post COVID 19. This is not exactly the phase, post officially notified lockdown period, that may or may not be extended beyond May 2020. It would rather be a reasonable span of time when WHO and other Health Certifying Bodies in India (say ICMR) and abroad shall officially declare that the world was immune to corona scare and those living on earth were free to live life in their own terms and wishes. A genuine question may arise that why this is applied in the context of the art of advocacy and no other profession? It is true that all other professions irrespective of their society and size would not be outside the change, advocacy, art is very personal to the individuals known to the Bar, Bench, and clients’ fraternity is the subject matter of discussion in the Articles. This is meant to convey a message to the law students, next-generation and newly entered/to be entered Members of Bar and others who feel that change is not a shackle to personal freedom but take it as a stepping stone to the next phase of life.
The words ‘Advocate’ and ‘Lawyer’ are colloquially and interchangeably used as an alternative to each other. The word ‘lawyer’ may be described as “a professional person qualified (by a law degree or bar exam) and authorized to practice law, i.e., represent parties in lawsuits or trials and give legal advice, by extension a legal layman who argues the point of law and includes an advocate, attorney, and counselor” by standard English dictionary meaning. Thus a lawyer may or may not be an “advocate” as clarified by the definition following. For example, a tax expert even though not an “advocate” by the following definition, may be acclaimed as a lawyer irrespective of the fact that he is not a member of an Institute or Bar Council as far as he has acquired the knowledge and expertise in a specialized field or branch of law. According to section 2(1) (a) of the Advocates Act, 1961, “advocate” means an advocate entered in any roll under the provisions of this Act. (h) “law graduate” means a person who has obtained a bachelor’s degree in law from any University established by law in India; (i) “Legal practitioner” means an advocate or vakil of any High Court, a pleader, mukhtar or revenue agent; (k) “roll” means a roll of advocates prepared and maintained under this Act.
By elaboration of the above definitions and the rules framed under the Act, an advocate is a person, who is primarily a law graduate, obtains a certificate of practice by qualifying in the All India Bar Examination (AIBE) conducted by the Bar Council of India with the objective of assessing the capability of advocates who want to practice law in India. This is the qualifying examination to get the Certificate of Practice for the Legal Profession. And finally gets his/her name entered into the role of advocates prepared and maintained by the Bar Council. Each of the advocates is issued an identity card, certificate of practice and Bar Association/Library membership admission/subscription receipts in confirmation of his/her clearance to practice advocacy in a court of law and write the word “Advocate” after his/her name. While a lawyer, who may or may not be an advocate, by definition under section 2(1) (i) may be a pleader or mukhtar or revenue agent. Understanding these provisions are very important before claiming oneself as an advocate as hitherto noticed to claim to fame by many that go unchallenged under the Act.
The art of advocacy is nothing new or codified. Any advocate visiting and attending a court on a regular basis may be learning the art by following the senior practicing members of the Bar and the learned members of the Bench during court sessions under varied circumstances. The objective of the articles is to help the law students, juniors, and others, learning and relearning some finer aspects of the art of advocacy in the forthcoming post-Covid 19 lockdown regime.
Never ignore the presumption that the Hon’ble Judges know the law better that you intend to argue, but the facts of the case. Never open your argument without grasping up the fact of the case thoroughly. Study the circumstances leading to the facts and relevant issues. Make sufficient research even on not so necessary facts. Never try to make up a story out of the facts. You may find it difficult to reconcile at a later stage. Have the numbers at fingertips. If you want to rely on supporting materials it is better to annex them with the petition. Highlight important points by page marker and highlighters in your home task. Prepare yourself by mock argument in your chamber by reading out the documents loudly. Never forget to keep books, case laws, documents’ copies, note pad, brief copies handy, and your cell phone in silent mode. Do not stare at or check cell phone sitting before the Bench in session. Do not drink, eat, smoke, chew, spit, and cough unnecessarily inside the courtroom. Cover your face with a face mask and maintain social distancing if the protocol so warrants. Appear in professional attire even if you are appearing in e-court in digital mode. Cross-check your background at home or chamber and outsiders’ entry and appearance inside before the webcam. Beware of intervening external noise during e hearing. Check your position on a computer monitor before you go online.
Before you appear in/before a court/e-court, it is of paramount importance that you know the system of the court, e-court, websites, and mail id, all about filing, numbering and listing, the composition of benches, court timing, and determination, to some extent about the judges’ background, court support system and amenities available. Find relevant information on the website and other sources. It is helpful if you could find out some orders/ judgments passed by the same judge in a similar matter. Never cite an overruled judgment. Never cite a judgment without reading through it carefully. Even an adverse paragraph at the end in your favorable judgment could be playing a spoilsport.
Unless you are appointed to act pro bono or as an amicus curea, before you take up a case, make a threadbare summation and cost-benefit analysis. If you feel that the matter could prolong or require a senior counsel or special expenses or stamp duty or court fee, inform the client in advance and take advance amount before acting on. It is very common that sometime after the case is filed if Mr. Ram and Mr, Ravan could decide to shake hands and settle. You won’t have any hands to support you making up the fees and expenses incurred. At the same time never overcharge or compromise on market-driven prevailing or prefixed appropriate fees. After all this is a motivating factor to practice.
Needless to say, your court practice starts with your four basic skills. Never limit your reading to the court documents and case laws only but various contemporary subjects, constitution, laws, amendments, law journals, newspapers, economic and trade journals, literature, epics, stories, and whatever you enjoy reading. Be a prolific writer, not only in court matters but articles, speeches, dialogues, reports, stories, blogs, and letters. Your first steps to writing start with reading and listening. Listening is not hearing. For listening you may need more than your ears. In the end, start speaking, as if no one is listening to you, followed by as if everybody is listening to you. Make a small group of friends or family members listen to your speeches and give their feedback..
Once you gain a reasonably good knowledge on a subject, start trying to publish your writings in newspapers and journals. Nowadays, there is no dearth of e-journals and social media platform for publishing your writings. Sooner you would become a familiar face in professional circle. It is unfortunate that during the lockdown period, barring a few, most of the speakers in various law webinars attended even eminent personalities were not observed to be very good speakers or could maintain coherence in speaking or could speak extempore on a given topic. It was also observed that the advent of a plethora of webinars in the days of lockdown pre-rating of speakers was of utmost importance before listeners could select and join webinars by choice. A speaker must not take the listeners as granted before speaking at a stretch for hours together. One must not forget that the listeners are no less knowledgeable. Effort should be to engage in interactive discussion and problem-solving. If an answer is unknown or not expedient in a public forum, it is better to admit than getting into a repetitive, nagging lecture. Ensure that your pronunciation is punctuation prone, bold, and distinct. Listeners cannot be punished with your jumbled up vocabulary and pronunciation. Human instinct disallows brain reception to remain agile usually after 15 minutes of continuous listening. Try to cover important/ bullet points within the first 15/20 minutes before elaboration. A listener may not be interested in a lengthy lecture or available personally for a lengthy webinar. Do not hesitate to share your pdf/ppt/graphics presentation over mail or by posting on social media after the webinar. This becomes a public property after the webinar is over. Knowledge is not to store. Prefer social media for webinars as may be preferred by the majority. Zoom was mostly disliked by many due to remote surveillance and e-crime issues, but used by the majority of webinar organizers.
Retaining clients is considered far more difficult than gaining them. Advertisement and canvassing are prohibited for advocates by the code of conduct of Bar Council. However, you may make and keep the general public aware of developments in the field of the legal world. In the days of the social media revolution, finding an appropriate mode of communication might not be difficult. Always try to be innovative and be first to placard your innovation of ideas. Be cautious of the surrounding rules and regulations to remain within the right side of the law. For retaining clients, it is important to maintain social distancing at the personal meetings but web-handshaking always. How do you do it, is an important skill you learn over a period of time by personal instinct. Never dilute your status and standing at the same time. Never express your weaker points to your clients, they would simply take advantage. At the same time, never engage in bitter conversation with them. You never know, when they would recall you in crisis. Avoid their gifts, souvenirs, special hospitality, and holiday packages given/sponsored by clients. No lunch is free. Last but not the least; invest in your home e-set up so well that digital practice would never become an issue at all. If necessary use two different data connections for continuous connectivity.
Just like clients, never ignore co-professionals and practitioners/counsels by not keeping in touch. Many a confusion, question, concern can be cleared by them in crisis. Everything is not available in black and white. In the context of court practice, maintain a good relationship with other side counsel. Do not disrupt him/her during an argument. Else you can expect the same treatment during yours’. Never talk to him/her directly during court proceedings, talk about him/her in third person singular number (‘my learned friend etc.’) addressing the Ld. Court. Take the other side into confidence before the matter is taken up by the court.
Before you get into active practice, it is advisable to make a SWOT Analysis for yourself. This is extremely helpful to know yourself and your respective strength, weakness, opportunities, and threats before someone else points them out in public. This would provide you with the much-needed impetus to self-confidence. Finally know your limitations; do not grab more than you can chew!
While making your SWOT Analysis, it is equally important for you to make the same for others, those who really matter to you. You will find the result extremely helpful in your interactive process with these people in professional communication. Get as much genuine information about the person as possible to use as your input. Limit your conversation and interaction on the basis of their SWOT Analysis result. Do not be hypocritical or analytical about them with such results in the public forums.
Needless to say be honest and upright, do not forget that you cannot walk even a mile more than God has written in your destiny book. Dishonesty cannot add even a single page to it or rewrite the destiny. Pray in meditation, God will answer your every question. Be extrovert at times in professional necessity, even if you are a born introvert. An introvert is not a dumb or an idiot, he thinks more before speaks out.
It is a fact that you have not joined the practice for charity or public benevolence. At the same time never forget that you exist for public welfare, for not only your revenue generation. Do not hesitate to extend your professional expertise to public benevolence, free service and pro bono work as an amicus as the situation demands. Keep the interest of the clients as a top priority before self-interest. Success is like an incense stick; more it burns more the fragrance spreads. Do not believe in a short cut to success. Rule of success does not go by the rule of “Royal Geometry” as reminded by the great Greek philosopher cum wrangler Homer to King Phillip, father of young Alexander, the great, while asked to tutor his geometry in a shortcut method so that he could mind more time in warfare classes.
Finally, never forget three great lessons learned during COVID 19 lockdown period. These are health, family, and home-cooked food. Health includes not only physical but mental health. Spend time in meditation, pranayama, yoga, music, audio story, watching movies, and simple isolation for some time. Family helps consolidating your thoughts, answering confusion, and personal questions. Maintain adorable relations. Have the patience to listen to them more than speaking out or reacting instantly. This is the best remedy for domestic peace. Fast food and spicy dishes played havoc on your health. Mother Earth wants us to season up your internal system with soothing home-cooked nice delicacies. Savor them even after lockdown is over. Sound sleep plays magic to your sound health. Relax and enjoy doing whatever you wanted to but your sprint in breakneck speed deterred you fulfilling the dream.