The Art Of Advocacy
Hon’ble Shri. R. V. Easwar, President
Hon’ble Shri. R. V. Easwar, qualified as a CA and a lawyer, was a very successful practicing lawyer before his elevation to the Bench. The author uses his unique experience at the Bar and the Bench and draws on the example of Nani Palkhivala and other stalwarts at the Bar to give some inspirational tips on the art of advocacy
Dr. Smt. Kagalkar, Principal of the GLC, Dr. Shivaram, Mr. Arun Sathe, Mr. Patodi, Mr. Dinesh Vyas, Mr. Ranka, Mr. Manmohan, the Vice-President of the Tribunal, my esteemed colleagues, participants in the moot court competition and students of law.
I consider it to be a privilege to deliver the inaugural address of the 7th Palkhivala Moot Court Competition to be held from tomorrow. I am grateful for the opportunity.
It is a fitting tribute to the memory of the legendary Nani Palkhivala that a Moot Court Competition should be held in his city for the benefit of students of law. Though these days there are several avenues open to the new entrants to the legal profession, lawyering as it is traditionally and popularly known has always laid emphasis on the performance in courts which field is now referred to as “litigation”. Dictionaries define an “advocate” as “one who pleads the cause of another, generally in courts of law”. After joining the legal profession, one is expected to take up the client’s brief and plead for him in the courts and the Tribunals. This involves arguments before the judges, legal research, a thorough knowledge of the facts of the case, the law applicable, the precedents bearing on the case, good anticipation of the arguments of the opponent, a deep insight into the strengths and weakness of one’s case and the ability to think on one’s feet. In addition, you are expected to be prepared for the questions coming from the bench. All these are collectively known as skills of advocacy. Nani Palkhivala was widely considered to be the best in court performance and advocacy and every one knows that Justice H. R. Khanna said that the arguments of Mr. Palkhivala in the Supreme Court before the full court of 13 judges constituted to review the Keshavananda Bharati’s case were “rarely equaled and seldom surpassed” in the history of the Supreme Court. A Moot Court Competition affords a platform where you as students of law start honing your skills of advocacy.
The art of advocacy is not a glib or superficial exercise. It is the result of hours of hard work and research. If you want to argue for 15 minutes in the court, it will require at least 3 hours of preparation. Please do not carry the impression that advocacy means only the gift of the gab. The gift of the gab is only part of it. But it is the mastery acquired by you over the facts and the law that will keep you in good stead before the court
The art of advocacy is not a glib or superficial exercise. It is the result of hours of hard work and research. If you want to argue for 15 minutes in the court, it will require at least 3 hours of preparation. Please do not carry the impression that advocacy means only the gift of the gab. The gift of the gab is only part of it. But it is the mastery acquired by you over the facts and the law that will keep you in good stead before the court. Mr. T. R. Andhyarujina, Senior Counsel, in an article of appreciation of Mr. Palkhivala mentions that behind Mr. Palkhivala’s seemingly ex-tempore budget speeches were hours and hours of preparation and hard work for which he even shut himself from all outside contact. It is therefore not an easy task to master the skills and art of advocacy.
In the field of taxation, the measure of the skills of advocacy and court craft required of you is no less than in other fields. If you are concentrating on the practice before the Income Tax Appellate Tribunal, you are expected to concentrate more on the factual aspects of your case than the law since the Tribunal regarded as the ultimate fact-finding authority. There, you concentrate on facts and the law will take care of itself. A tax lawyer is under the same duties and obligations to the court or the Tribunal as any lawyer specializing in any other field. He is expected to be fair to the Court or the Tribunal and to the other side and must present his side of the case thoroughly, clearly and without any kind of misrepresentation. Ethics in advocacy are as important as the skill, and this should not be forgotten at any time. As they say, you may lose the appeal but you should not lose the bench, which means your conduct should be such that the court or tribunal is prepared to trust you.
It is a matter of some concern, shared by many of us, that fresh law graduates do not take to litigation much and prefer to perform desk jobs in law firms or in the corporate field. I am not saying this in any derogatory sense, but any legal dispute must ultimately reach the courts or the tribunals for resolution. That is the place where everything about the dispute gets tested. I believe that for a lawyer there can be not better satisfaction than the one he gets when his contentions find acceptance in the hands of the Tribunal or the Court.
If you are concentrating on the practice before the Income Tax Appellate Tribunal, you are expected to concentrate more on the factual aspects of your case than the law since the Tribunal regarded as the ultimate fact-finding authority. There, you concentrate on facts and the law will take care of itself
The life of a lawyer, especially in the initial years at the Bar, is no bed of roses. You must be prepared to live like a hermit and work like a horse. It is often a struggle for many, except for those who inherit a lucrative practice! As in any other field, in the legal field also it is the hard work in the initial years, without being bogged down by negative feelings or despair, that will keep you in good stead as you grow in the profession. When you have periods of full in those initial years, make use of those periods to keep abreast with the law because when you become a busy lawyer you may not find the time to do it! Be well-prepared always, for chance always favours the prepared mind. The monetary rewards may be late in coming, but they will come, because, as Allan Bennett, when asked whether he was happy being a tax lawyer, jocularly said: “Of course I am happy. I am a tax lawyer, and money is incredible”. But alas, Allan Bennett’s line is from a work of fiction, not real life!
If you read the autobiography of Motilal Setalvad, India’s first Attorney General, you will find him describing the qualities that made him the leading member of the Bar. They were the ability to separate the essentials from the non-essentials of the case, expressing his thoughts in the fewest number of words and avoiding repetition. He advises junior lawyers to cull out the cold facts, arrange them logically and to present them briefly but emphatically. According to Mr. Nariman, Motilal Setalvad had the ability to put across the best points in the briefest possible space of time. A lawyer’s hallmark however is to adapt his methods to the tribunal before which he appears and not to mechanically follow his usual approach. Never bark or snap at your opponent or the court. Losing temper may cost you not only the case but also the client forever!
I will give you an illustration of how good a lawyer can be and how perfect an argument should be. There was a famous case of Ackroyd vs. Smithson in England decided many many years ago. It was argued by an up-coming young counsel by name Scott, who later became the famous Lord Eldon. His argument was accepted by the Lord Chancellor. Later, Scott was engaged in another case before another court, and this case required Scott to put forth an argument which was totally the contrary of what he had argued in Ackroyd vs. Smithson. When Scott stood up, Lord Ashburton, the judge, told him: “Sit down, young man”. When he found Scott still standing, he repeated what he said: “Sit down, I will not hear you”. Scott then sat down. At this, Lord Ashburton asked him: “Is not your name Scott, sir?” Scott replied in the affirmative. The judge then asked him: “Did you not argue the case of Ackroyd vs. Smithson, sir?” Scott said ‘yes’. Lord Ashburton then said: “Mr. Scott, I have read that case and your argument in the case, and I defy you or any man in England to answer it. I won’t hear you”. I want you all to achieve that kind of excellence which Mr. Scott could, for which all the best wishes from me and my colleagues in the Tribunal are with you.
In his essay on the “development of the legal profession in India”, Prof. Samuel Schmittenher laments that the prominence the legal profession enjoyed in the social and political life of India and its leadership is now gone. It is for you, budding lawyers, to prove him wrong. I am sure you will take up the challenge, and that this moot court competition will be your first step towards achieving excellence in the profession.
I wish you all the best and may the best team win!