How To Argue Matters In Court And Become A Better Lawyer
Hon’ble Shri. D. Manmohan, Vice-President (Mumbai Zone)
Hon’ble Shri. D. Manmohan, a veteran at the Bar and the Bench, shares some invaluable tips on how young professionals should argue matters in Court and become better advocates. Sincerity to the Court & the client, mastery over the facts and the law, an ability to work hard and tirelessly and a never-say-die attitude are necessary attributes for success in the legal profession says the learned Judge
The Chief Guest of today’s evening, Hon’ble President of ITAT Shri Karwaji, Principal of Government Law College Shri R.B. Malik, President and Immediate Past President of ITAT Bar Association Mr. Arun Sathe and Dr. K. Shivaram, President of AIFTP Mr. Poddar from Ranchi, Chairman and General Secretary of Moot Court Association Prof. Sanjay Kadam and Mr. Raghav Dev, Members of ITAT Bar Association, my colleagues from ITAT and my young friends,
In this age of complexity of laws a greater responsibility is upon the young lawyers who should studiously read the provisions and comprehend the law so that an appropriate meaning can be attached to every word used in the statute apart from precedents wherein certain observations are made
“Good Evening everybody”
I am deeply impressed by the presence of Mr. S.K. Poddar, National President of AIFTP who made it a point to attend this function all the way from Ranchi. He is young at heart and this senior professional is present in our midst to share his experience with the younger would-be lawyers. This shows that if you have a strong wish and commitment, as stated in the book “Alchemist”, “the whole world will conspire together to help you in achieving your goal”. Mr. Poddar’s presence in itself is a lesson to the young students that profession requires deep commitment.
I am privileged to be part of the opening session of the 10th National Moot Court Competition held in memory of Late Shri Nani A. Palkhivala. Shri Nani Palkhivala is a renowned jurist in whole of the country. He is a legendary figure in the field of law. Even a single word that I would venture upon in the process of narrating his attributes would become repetitive because there are number of books and published speeches speaking volumes about his eminence – not only in the field of taxation but also as Constitutional expert.
Shri M.V. Kamath has briefly narrated about the divine drama of how Shri Nani Palkhivala, who aspired to become a lecturer or a civil servant, was destined to take up law as his profession and was instrumental in laying down path breaking judgements not only in Income Tax but also under constitutional law.
Therefore, I confine to the topic as to the importance of National Moot Court Competition, more particularly in the taxation field. As all of you are aware, Moot Court is an extracurricular activity which includes drafting briefs and participating in oral arguments. It is an essential learning experience for budding advocates. Lawyering skills, court craft, professional ethics and the art of arguing, that the ‘would-be lawyers’ develop through the Moot Court exercise, keep them in good stead and help them after enrolment in the Bar. India is probably the second largest country, in terms of number of Advocates on the rolls of the Bar Counsel. Medical professionals are given clinical exposure before they are formally awarded graduation certificates. The Bar Council appears to have felt that even law students need practical training before entering into the profession. Thus, Moot Courts have become an integral part of the legal education so that the students would equip themselves with the basic understanding of how Courts function, i.e. to learn court craft and court culture.
Income Tax as such is a complex legislation. Though the Income Tax Act, 1961 was to come into force on the first day of April, 1962, prior to the said date it underwent several amendments. In the words of Nani Palkhivala India’s tax policies suffer from five pernicious failings, i.e. (a) absolute uncertainty because of changes in laws and rates of tax that are as unpredictable as they are frequent, (b) complexity that verges upon incomprehensibility, (c) excessive and cumulative burdens that makes dishonesty immeasurably more rewarding than integrity and hard work, and make India the highest taxed nation, (d) injustice inherent in fatuous laws; and arbitrary provisions which stem from individual whims that are not based on any discernible principle of legislation, and (e) an administration marked by petrifaction or discretion and paralysis of the will to do justice.
Justice Learned Hand aptly remarked “Justice is the tolerable accommodation of the conflicting interests of the society and I do not believe that there is any royal road to attain such accommodation completely.” In this age of complexity of laws a greater responsibility is upon the young lawyers who should studiously read the provisions and comprehend the law so that an appropriate meaning can be attached to every word used in the statute apart from precedents wherein certain observations are made; one has to analyse the difference between ratio, binding principle or casual observations and so on. This, in turn, may help the assessees in general, without sacrificing the interests of the nation.
A studious lawyer does not mean that he has vast oratory skills which is used to labour on hair splitting arguments on every letter of law. Lawyers have to channelise their knowledge to enhance the dynamic concept of law in order to benefit the parties whose brief they hold but, at the same time, such arguments should also benefit the larger sections of the society.
Always remember that if you master the facts, legal principles can be applied at any stage of the proceedings. In other words, mastery of facts is as important or rather more important than mastery over the law
Since taxation laws are highly complicated, there is good scope for young lawyers to come up in this field. International taxation is not only lucrative but also very challenging subject. In the case of Compania General de Tabacos vs Collector 275 U.S 87 (1927) Justice Oliver Wendell Holmes Jr. remarked, “Taxes are what we pay for civilised society” and Justice Holmes, who believed in this philosophy, had in fact bequeathed his residuary estate to the Government of the USA. Equally important are Justice Learned Hand’s remarks, and to maintain the balance between unnecessary/intolerable taxation and need to pay taxes – as a citizen, burden is on your shoulders.
I was associated with the Nani Palkhivala Moot Court Competition for the last several years and had the benefit of hearing some of the students in the semi-final rounds which gives me a feeling that they are brimming with new ideas and would definitely make mark in the profession provided they opt to join the Bar.
Just as stagnant water is unfit for drinking and flowing water is pure, law is never static; of course if every issue is settled there may be a problem for survival of lawyers. Any way law is and can never be static, more particularly economic legislations, wherein – in the process of making them simpler – they are made more complex and every time an issue comes up before the court one need to compare the old provisions with the new provisions to analyse the intent for insertion of new provisions. Even under the old law one cannot be complacent by assuming that the law is well settled because every time you read a provision, based upon your experience and insight, one may get a new spark as to how to interpret a particular word/sentence contextually.
Lord Denning in his Book “Due Process of Law” stated “what appears to be a new groove chiselled out by some innovation may in reality be an apt extension of the old groove into which it is led by the true spirit and intent of the Law, or it may be the old groove itself which looks new only because it has been swept clean of the detritus deposited by a line of imperfect decisions.”
It is time for me to share my experience, as a former lawyer, which I would believe that they would be of some help to all of you.
(a) The first and foremost is that every law student should recognise the fact that “profession is a jealous mistress”; It never allows you to distract your attention from the profession. Whether you are a lawyer or judge, you are an eternal student of law. Every day is an experience, every new thought, new fact or situation, new argument reveals a new angle needing attention of a studious lawyer.
(b) A degree in law will merely serve the purpose of enrolment as a lawyer but the real journey of profession begins from then on.
(c) Always remember that if you master the facts, legal principles can be applied at any stage of the proceedings. In other words, mastery of facts is as important or rather more important than mastery over the law.
(d) “Brevity is the soul of wit” remarks Polonius in Shakespeare’s “HAMLET” suggesting that witty people know how to make a point without unnecessary words. The same applies in legal profession also. ‘Dont’s are more important than ‘Do’s. The arguments, either in writing or oral, should be brief and pointed.
(e) Be punctual and sincere to your clients and at the same time as an officer of the court you have to maintain sincerity in bringing out the correct picture before the court, i.e. a healthy balance has to be maintained between your obligation to the clients and your duty to the court.
(f) Success is ephemeral. Success should not lead to vanity or ego. Your sustained hard work and integrity is the hallmark of your success, though fluency in language, gift of gab, maintaining good reputation, etc. may also help you a bit.
(g) Last but not the least, always bear in mind the difference between working for money and working for your satisfaction. One should never forget that justice/Dharma should be one of the essential and noblest pursuits of a human being and whosoever gets this opportunity, by virtue of choosing this profession, should perform their duty without aspiring for material gains though, in the long run, your hard work, knowledge, integrity and other virtues would lead you to material success since they become a natural offshoot of your hard work.
As I have requested the young law students, in my speech on the occasion of the opening of the 7th National Tax Moot Court competition, I repeat now that there is real dearth for professionals and the young students are advised to join the profession rather than getting lured by the handsome salaries offered by the corporates.
I thank all the organisers, especially the ITAT Bar Association and AFTP for their support in organising this competition and also for inviting me as ‘Guest of Honour’ on this occasion. I wish the budding lawyers ‘Good Luck and a bright future’.
Vice President (MZ)
Income Tax Appellate Tribunal
Justice Hand and Justice Holmes views are some products of Palonius thought in Hamlet a great play of Shakespeare which really contributed in thoughts generations of people like Nani P, i also had experience with him in those great years yet to stage back!
Brevity is the soul of wit is the very principle of Dharma!
Thanks for the wonderful speech; at last some intellectual inputs and good food for thought from a judicial officer. Pity that someone like you is not at the helm of affairs of this institution at this crucial juncture. All the best in times to come, Sir.
Thanks also Dr Balakrishnan for his wise and balanced comments. To Bharat, I must say that you are great that all judges look equal to you. Generalization is not such a virtue as you are making it out to be.
Hahaha. “brevity in argument”. Nowadays, judges speak more than lawyers in court. In good old days judges spoke through orders, now they exhaust themselves in courts. Lawyers are asked not to press grounds in appeal memo and if they don’t agree with bench then such lawyers are targeted. I think there should be moot courts for presiding judges also especially considering the controversies on conduct of judges. would recommend everyone to watch the movie “judgment at nuremberg”. it’s about judging the judges.
Thanks Sir. I have just got into this profession. These are pearls of wisdom for me. Will implement the learnings from you.
What an irony! There is an urgent need of cleaning the own house. Members are bluntly defying the precedences, behaving rudely everywhere. There are certain members who are known to be corrupt. Cases of certain people with certain lawyers are posted before certain members. Many benches are not working & increasing pending cases. Time for first hearing after filing appeal in Mumbai has come to 1 years & 9 Months. There are members who adjourns matters for six months after hearing whole arguments from both sides. It is very easy to teach such lessons at young bar but there is an urgent need of pest control inside. Crabs need not preach on walking straight.
Published artical is giving us a light to get succees in practice not only in taxation but in all fields of law. Verdict of Respected auther is absolute and final; there is no alternative of this, any person by adopting this way of practice may achove a valuable place. The practicing lawer is an officer of the court, it has three fold liability one towards his clint second towards judge and third towards socity or said to be nation, this concept is the valuable teaching of this artlcle.
Fully appreciate. PALONIUS advice is the best, brevity is the soul of wit (wisdom). Court has very least time so do not load too much material and excessive material case laws choke the judgemental flow. So be brief. judges are happy to decide faster than expected. Today I find solicitors submit voluminous material just for good fees that voluminous material indeed delays justice as judges are forbidden to decide fast issue . so long delays take place in any matter. you no doubt need imagination of legal philosophy as legal philosophy only improves perceptions. To due to languages nuances ideation is indeed cumbersome for decoding, they work for cross purposes, as there is enormous confusion in all fronts. therefore, everywhere decoding problems, as one can see several times clients decode a law provision as he thinks of free interpretation no bounds that puts advocates need to convince in conferences with clients but clients insist theirs is right that delays but some lawyers give in lest to lose the clientele that is indeed a dangerous practice as practicing law is nothing but a great social work not indeed ties up with income generation by advocate, so in those days baristers never used to ask the client a stipulated fee but he had on his gown a small pocket wherein the client satisfied puts his amount but practice is is not here but you have a symbolic pocket where your own two fingersay not enter, as today clients given an opportunity they will not pay to your services so today lawyers gone on contracting fees much more than what is shown on schedules as fees stipulated therein is not worth taking at all, better one can do just a free service.
coming back to main thought brief arguments relevant is sufficient to get sensible justice as judges are not automatons anywhere in the world as they are over committed, may be true some deadwood everywhere is possible that does not mean you can criticize judges is my view