Never a Restful Moment: A View from the Bar

Arun Kumar K.


Atypical page121day starts early. Invariably, thoughts on waking are about how to present an issue before the judge, a legal principle, or about how to approach a cross-examination. But it isn’t all law. It’s also the kids at home, issues of near and dear ones, chores around the home. On a relaxed day, when there is nothing else, you may even debate whether tolerance is a social issue.

Office starts with colleagues seeking instructions, early-bird clients, and the general rush of getting to court. Much as these colleagues seek peace and quiet, mornings are chaotic. There will be last minute changes, printing and alternating arrangements often necessitated by a new brief, the appearance of a new client, a sick colleague, or even a new thought. When these litigators walk out of the office doors, the office breaths easy, dust settles, and the non-litigation lawyers unplug their headphones. It is as if a tsunami has gone past.

Negotiating the road and its traffic may seem like a problem. Often, this time is well spent catching up with a colleague or even in fine-tuning the preparation for the task at hand. If the traffic is beyond what was budgeted, then begins a stream of calls to colleagues in court and sometimes to fellow lawyers to make appropriate requests or motions to tide over a possible calamity.

The day in court normally begins with an argument or two. That’s because the High Court, the home for the argumentative, is often the first point in the day’s transit. It is a choice made by its early start and by the knowledge that its deities are generally less accommodative. The High Court offers instant gratification, as it invariably culminates in an order or a decision. The proceeding here will leave its flavour for the rest of the day. An effort appreciated, a successful persuasion, an imprinted page122erudition, a successful outcome, or a thrilled client to start the day is an elixir for better rewards.

The next stop invariably is the trial court. Getting to the trial court from the High Court is like going from the king’s palace to the municipal market. Like a market it is mangy, crowded, and smelly. While the lords at the palace are prone to whim, the proceedings at this local market are strictly according to set rules, often unwritten. The proceedings at the palace are solemn, at the market place it can be a brawl. Like in a market, the day’s proceedings begin by taking stock. Cases, parties, and sometimes their lawyers, are called out loudly for all to hear. The judge then picks a few ripe for serious business. The rest are dismissed for a few weeks at least. The process often leaves a teeny bit of time in the pre-lunch session. This remainder of the pre-lunch session, is in most courts, reserved for trial.

They are not trial courts because they are pensive. The trial is a well-manicured technique devised to sift truth from untruth.

The trial judge deserves a mention. Paid a pittance, they don’t often attract the best of talent. Those chosen often have limiting backgrounds and are inept for fast-paced societal needs or the expediencies of business. There are some who manage to run through their careers by passing the buck, meandering through the inessential, and by adjourning what is material. Yet there are many, driven by a cause, who bring a high a sense of propriety and importance to their calling. While criticism is easily directed, it cannot be overlooked that these judges, conscientious and despite all their limitations and working in circumstances demeaning the stature and power of their office, often outperform every limitation. It is also not rare when their analysis of facts and often, the law, are amongst the most well-considered, erudite, and learned ever.

Facts to these courts of law are not determined by the sway of public opinion or the campaigns of journalists and media houses. Here, facts are what are established by the testimony of witnesses and documents at trial. There was a time when the process of trial required lawyers to elicit words from their witness in open court, before the public, the judge, and his opponent. An art it was, to enable the elimination of many falsities that the witness could not get himself to utter publicly. But that is a thing of the past. The trial is now limited to cross-examination of statements made by witnesses on affidavits. It is the opportunity of the opponent to contradict and discredit the witness, and to elicit his own case. Cross-examination is the high art of a litigating lawyer. Art they say is a gift from God. An adept practitioner will be no less, his skill measured by the perfection of its blend of learning, prudence, and timing. The heady skill can rarely be acquired without an impeccable knowledge of people, law, society, tact, strategy and an assiduous understanding of his client’s case.

The post-lunch proceedings in court are normally reserved for the longer opportunity of argument and persuasion. The session will invariably see elaborate elucidation of facts, interpretation, and meticulous application of the law. This period of the day brings out the best in a lawyer. He runs a tight rope. Persuasion is not easy when he also has to hold on to the court’s attention. An inept lawyer may unwittingly induce a catnap, and find his efforts wasted.

Lawyers compete for court’s attention. Some days are wondrous, when the lawyer gets to spend the whole day on his feet attending cases from one court to another, from the cross-examination of a witness to a multitude of legal arguments in diverse cases. Then there are others, when they return to their lair confident that the bustling activities of a wasted day has at least honed their adroitness for patience.

page123More famous is the court for its delays, than an understanding of its processes. There are more casualties to a court’s delays than just lawyers’ time. Worse is the despair, as a litigant in the wrong will be rewarded by Court’s delays, while the one who is right will be wronged. There is nothing more difficult than explaining why no tangible progress was made. More clients are lost to adjournments, than to rank incompetence of their lawyers. Likewise, more lawyers are rendered incompetent by it, than by their lack of learning, skill, or erudition.

The journey back to the office is made at every available opportunity. More than once, on a typical day. It ensures a quiet lunch with colleagues, and an opportunity for further research for the day’s work at court. It is also an opportunity to nibble at the list of office work that piles on us ever so often. The eventual journey back to office is special. It will have the flavour of the day’s proceeding in court. A good result is an excuse to indulge the office. That will induce a pit stop to grab some ice cream, kulfi, cake, or the like, for the food-loving ever-hungry legal eagles.

It is every lawyer’s dream that his evenings at office are busy as hell. A quiet evening for a lawyer may become a source of disquieting concern. Evenings are when client meetings are normally scheduled. This is the time when facts are sifted, and strategy is crafted and put in motion. Clients can be interesting, famous, learned, pious, painful, dishonest, or just plain drudgery. But they are people to whom lawyers devote their lives.

Clients have to be heard. What is heard has to be recorded for posterity, summarised, and revisited for its multiplex content, both stated and unstated. Narratives are only an invitation to identify what is fact. A keen ear for unstated details and patient hearing helps decipher the relative strength and weakness of the case, and identify the objective behind the client’s grievance.

Interspersed during the day will be the evolution of legal arguments, review of research, and the formulation of legal argument and positioning. When client meetings are completed and the clients have retired to their homes, the lawyer goes to work, preparing for the day to come. There are routine chores too, to be done in between the excitements that come by, such as billing, following up on recovery of fees, managing work at office, and so on.

We are known to visit friends, and socialise late in the night. We are expected at wedding receptions and other functions only after the event is done. Of course, we don’t understand the insinuation that we are creatures of the night. We are at it day and night.