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Law schools should evaluate internships more rigorously and intervene to limit bad choices

AbhinavSekhri_NationalLawSchoolofIndiaUniversityHaving explored different connections between practising law in India and the education provided in our law schools in previous posts, the internship stands out as the primary opportunity for law students to meaningfully interact with the real world before they graduate. It also tends to have a big influence on their decisions about the future.

Today, most major law schools make internships mandatory during vacarions and have their own internship rules. These rules will lay out where and for how long students are required to intern, and whether students are required to file reports that are then graded. Students may be required to work at different levels of the hierarchy of courts, and by the end of five years, they are expected to have been adequately exposed to the legal system.

How serious are law schools about grading internships?

Making internships mandatory reflects how important a university considers them, but the manner in which these rules are enforced belies their importance. The administration is quick to check whether the internship lasted a minimum duration and whether entries for each day have been made in the report, but not enough attention is paid to what is actually written. This is a more serious issue in institutions where the internship programme is graded, as it is in NLSIU.  There was also something quite amiss about having questions posed at us by academics about our experiences as practising advocates. The lack of any real criteria to evaluate internships meant that very few people knew how they were graded.

The rigid adherence to form also manifests itself in refusing outright, corporate internships as the rules require time to be spent in court. This ends up entirely defeating the purpose of mandatory internships for most, as they wish to gain exposure to various environments to make informed decisions about their careers. Students in turn, are forced to fudge their internship reports, which creates a lose-lose situation. By refusing to acknowledge corporatre internships, law schools turn a blind eye to the commercial realities of today where most students head for corporate jobs.

Reforms should also focus on the content of internships

lawschoolinternsPossible reforms must not only focus on the structure of the internship programme (such as expanding the time and allowing corporate internships) but also the content. Laziness cannot be the only reason for the failure to keenly evaluate internship reports. Teachers are not accustomed to the lack of uniformity either. Currently, there is a great degree of randomness associated with the internship experience, as different chambers and firms follow their own systems. Colleges could, perhaps, require the chamber or the firm to teach certain basic skills (such as drafting a contract), depending on how senior the student is. This would also ensure that students do not suffer because of the unpredictability, as can often happen at big offices. Such a step would help students make more informed decisions about their careers and also assist in objectively determining which offices are good places to intern.

Law schools should help their students make good choices

If we do believe that this current post-hoc intervention of law schools with internships is beneficial, should this be expanded to cover the pre-internship phases as well? At the moment, the entire business of securing an internship, whether at a chamber or otherwise, is left to the students. Offices usually treat students on a first-come-first-serve basis, which leads to the absurd need to secure internships for February 2016, in June 2015 itself. From what I last heard, NLSIU was trying out an internship coordinator to verify the internships taken by students, and facilitate securing internships for students who could not find one. In principle, I think the idea is sound; as long as the regulation is restricted to overseeing the process and providing information and not enforcing decisions. Currently, internship decisions are often made based on paltry information and unhelpful factors. For instance, first year law students apply to a senior advocate when all they know is a smattering of tort law, as they think a big name means a good internship. The same is not always true, and even a process to help supply that absent information can reduce faulty decision-making. I’m no fan of paternalism, but sometimes a little help doesn’t hurt.

(Abhinav Sekhri is an advocate practising in Delhi.)

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Law Schools

Law schools are not very good at teaching drafting – and that’s a problem affecting everyone

AbhinavSekhri_NationalLawSchoolofIndiaUniversityOral advocacy, which we discussed in my last post, is only one aspect of life as a litigator. An equal, if not greater, time and effort is spent in drafting legal documents, which help sustain everyday transactions.

How are the set of skills required for these nurtured in law school? Students at NLSIU only spend one-thirtieth of their time on average trying to draft documents – once during the Drafting Pleading and Conveyancing course in the third year and then in the Trial Advocacy course in the final year. This is undoubtedly a very short amount of time to develop these skills. At times, the focus was to get through as many documents as possible which curtailed the time spent on understanding the meanings of terms involved. Students therefore, end up not much better off compared to those people who may seek them out for advice on a verbose document. This encourages students, upon graduation, to use templates without appreciating how each clause may need tinkering for different situations.

AQOLbannerThere are structural issues at play as well. The current system views drafting mainly as an individual-centric exercise, teaching only those legal documents that natural persons execute among themselves or file in a court. We were taught how to draft mortgage deeds, sale agreements, and bail applications – but always for individuals and never from the perspective of corporate transactions. Elective courses apart, there is no training for drafting or understanding proper contracts, non-disclosure agreements, and their various clauses. This inexperience severely limits the exposure possible at internships, particularly in law firms.

The little that is being taught however, is surprisingly useful in the practice of law. That is simply because documents like sale deeds, bail applications, quashing petitions and the like still contain many formulaic elements and their form has not drastically changed over the last twenty-five years. The law school has been rather adept at simply providing the students those templates for later use. But is that a good thing? I think not.

In failing to critically deal with status quo, the law schools lets go of its most important responsibility – making the students think about the legal system. The manner in which legal documents continue to be drafted in India is very archaic, verbose, and hyper-technical; all of which pushes the common man even further away from the justice system. Is there an irreplaceable benefit to retaining the several “wherefore”s, “whereas”’, and “henceforth”s in a deed? None – apart from the apparent benefit of making it sound legal.

ThewaywedraftI view this as a symptom of a problematic imbalance in place at law schools today. Courses are designed to make students familiar with the text of the law, but not its application. There are hardly any drafting sessions during the two mandatory courses on contract law. Criminal procedure was taught without ever looking at a bail application. Similarly, property law went by without ever going through an actual sale deed or mortgage deed. The point is clear. National law schools must narrow the divide between the teaching of statutes and precedent and their application to real-world scenarios. Otherwise, their very purpose of providing India with socially useful lawyers may be lost.

(Abhinav Sekhri is an advocate practising in Delhi.)

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Law Schools

Law schools cannot do much to improve the efficiency of arguments in courts

AbhinavSekhri_NationalLawSchoolofIndiaUniversityStarting out, every law student nurtures some ambition to argue a case in court. The reason may be the glamour associated with lawyers in pop-culture or the innocent belief that arguing in court is what being a lawyer is about. A fresh law graduate however, rarely gets an opportunity to actually argue. Instead, they can observe the various styles of argument that lawyers employ and reflect on how five long years of legal education could have been put to better use for a life in the courts.

The vernacular as an entry barrier

Arguments at the high courts and the Supreme Court are conducted in English and the lawyers sound properly deferential to their lordships. At the district courts, the vernacular often supplements English and there is more informality with lawyers resorting to idioms and phrases to lighten the mood or make pointed remarks. Skilled trial lawyers are often adept at switching languages, playing to their strengths, and reading a judge’s reaction.

Honing these skills is a matter of experience, but that comes later. The use of the vernacular is a significant entry barrier for those who want to practice law in the courts. At NLS, there were only non-mandatory Kannada classes. Provided no training in any language other than English, a Delhi boy like me for example, will almost automatically, regardless of other factors, exclude trial litigation at lower courts in the south of India from his options for a career. Law schools should do their bit to improve the diversity in the profession by at least equipping students to practice law in the state where they are studying law.

The Indian styles of argument

OralAdvocacyIndianCourtsFrom top to bottom, an overflowing docket unites Indian judges who rarely have the time to familiarise themselves with each case. This has led to the development of peculiar styles of argument across courts. Judges, it is generally believed, cannot fully appreciate the written submissions because of the heavy burden of cases. Lawyers not only argue the case in law, they also spend time providing clarity on facts. Judges rarely ask lawyers to hurry up. Without a time limit, lawyers proceed leisurely from one issue to another, repeating arguments and returning to points. Linked to this is the practice of reading extracts from the written submissions aloud before the judge. This can be seen at a magistrate’s court and all the way up to the Apex Court. Several hours are spent fleshing out settled legal propositions by rehearsing case law in trying detail.

These inefficiencies can only be partly remedied by our legal education system. Law schools already expose students to more efficient ways of presenting arguments and promote the structured presentation of arguments. Through moots, students even practice how to present arguments for the most difficult legal problems in a coherent fashion within twenty-five minutes.

Legal education however, can only do so much. Judges and clients have grown so accustomed to these inefficient methods that any deviation seems a very high-risk strategy for lawyers. Change is much more likely to come through the bench. Recently, much to my delight, it was reported that the Supreme Court was considering time limits for oral arguments to curb delays caused by lawyers taking too much time over settled points. It’s certainly a start, but there is a long road ahead.

(Abhinav Sekhri is an advocate practising in Delhi.)

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Law Schools

Why I wish law schools would organise more court visits

AbhinavSekhri_NationalLawSchoolofIndiaUniversityMy first court visit, during an internship, remains etched in my memory. Visitor pass in hand, I entered the Supreme Court, gazing awestruck at the beautiful façade. I set out to find Courtroom Number 12. How hard could it be? Very hard indeed. It took me half an hour, during which I was even ushered out of a judges’ enclosure, and I missed the matter. I later discovered that this was a rite of passage. All my classmates had stories of getting lost in the winding corridors of court complexes.

Today, only after some months of running around the many district courts of Delhi am I able to carry myself about with a measure of certainty. I discovered many previously unknown parts of court complexes. On its face, a court is little more than the main building with many small courtrooms inside. Only when you get your elbows into work do you discover what lies beneath. Inside the courtroom itself, there is a lot that goes on beyond the interaction between a lawyer and a judge. The judge is assisted by a Reader who handles all administrative work inside the room and the Ahlmad who is charged with handling all judicial files for that court. Outside courts, areas are designated for lawyers’ chambers, and all sorts of para-legal assistance — typists to help with an application, oath commissioners for the accompanying affidavit, and copiers to get the several copies that courts require.

The library and canteen are more interesting. At the court libraries, there are lawyers deeply engrossed in commentaries and preparing their arguments, while others rush in and out looking for copies of cases in matters that are currently being argued. At the canteens, there are tables where lawyers gossip and others where the discussion is about an issue of law.

Windingstaircase_MadrasHighCourtThough a very interesting one, my process of discovering courts left me with some concerns. Courts seemed to pay little or no attention to the ordinary litigant. Lawyers on the other hand, were demigods. Buildings have complex layouts with little or no directional assistance to get around. Security passes at the higher courts automatically exclude litigants without readily available identity proofs but anyone in black and white will manage to enter them unchecked. The bureaucratic dependence on files breeds corruption by creating more palms to grease for any work that needs to be done. Given the scale of the problem, it seems the common litigant can only hope to snigger and chip away, one date at a time.

Courts would certainly benefit from fresh ideas, but where will these come from? A university is the best place for the germination of fresh ideas, but law students are afforded little or no opportunities to familiarise themselves with the problem. Most students only get an opportunity to attend court during internships. But in those few weeks, there is rarely time to explore the court. More exposure to the court would also allow students to make better decisions about their careers.

(Abhinav Sekhri is an advocate practising in Delhi.)

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Law Schools

India’s student-run law reviews face major questions

AshwitaAmbastIt is remarkable that the guardians of the most powerful academic gateways in legal scholarship in the United States are law students. Several of the most influential American journals such as the Harvard Law Review and the Yale Law Journal are produced by top universities and are entirely student-run (and proudly so) and feature no element of peer-review  that is, some form of evaluation by someone knowledgeable in the field. The absence of peer reviewing appears to be unique to legal academia, and unsurprisingly, this fact has drawn considerable flak.

The most classic critique of American journals was penned by Professor Fred Rodell as early as 1936. In his article “Goodbye to Law Reviews”, he strongly questions the academic contribution made by the ‘Harvard Law Review-style’ article as well as the poor, fluffy quality of writing he claims it encourages. Other critics point out inter alia that student editors are unable to fully evaluate technical analyses, particularly the kind found in articles that lie at the intersection of law and other disciplines. Student editors are frequently accused of being distracted by (arguably irrelevant) details such as the position and reputation of the author, conformity with a popular style of writing, and the volume of footnotes. It is true that peer review is not free of its flaws. The objectivity and independence of peer reviewers are frequently called into question as well. But the outrage and criticism against student-run journals is far more pronounced and on the face of it, valid.

What about the reviews being produced by Indian law universities? On surveying the information available about a series of law reviews published by Indian universities, some relevant observations can be made.

Image on the left is from Janet Lindenmuth's photostream on Flickr (CC BY 2.0). Image on the top-right is from Kristopher Nelson's photostream on Flickr (CC BY 2.0)
Image on the left is from Janet Lindenmuth’s photostream on Flickr (CC BY 2.0). Image on the top-right is from Kristopher Nelson’s photostream on Flickr (CC BY 2.0).

First, like the U.S., the kind of journals Indian law universities publish are generally of two kinds. The first is the flagship journal with diverse content, such as the Amity Law Review, the NUJS Law Review, and the NLUD Student Law Review. Also, in addition to the flagship reviews, Indian law universities are witnessing the proliferation of more streamlined journals that publish articles in more niche areas. There exist journals on subjects as specific as corporate crimes, telecommunications and broadcasting law, and law and technology. It appears that both these types of journals, flagship journals as well as niche ones, are a mix of peer-reviewed and student-run.

Second, there are a handful of journals that either state that they have an ‘advisory board’ or that they are jointly run by students and professors. What role do the advisors and professors play in the running of the journals, specifically in selecting the articles and controlling their quality? Does the final say lie with the student editors? On these fronts, many contemporary Indian journals beg clarity.

Finally, there are a handful of journals that indicate in clear terms that they are peer reviewed. However, the universe of peer reviewing is complex; the term ‘peer-reviewed’ itself begs further detail. Despite liberally using serious qualifying terms such as ‘rigorous’ and ‘international’, most journals seem to be unclear about what exactly their review process is.

The overarching conclusion from the three observations outlined above is that Indian law school scholarship has not completely dodged the attendant disadvantages of student run reviews entirely. Much writing is published sans peer review. In cases where peer review is employed, the process is varied and in most cases begs detail and transparency. While this observation may appear banal, it seems fair to expect that journals be more upfront with their potential contributors about the future of their articles. Who is reading them? Who decides their fate? Where are the red lines coming from?

Legal Research AdvertisementThese observations are preliminary and can potentially be fixed. But there is a larger, more ambitious and more pressing inquiry to be made. The flaws of the existing model of legal scholarship in America (of which the student-run or peer-review debate is just a part) are making journals less relevant to the Bar and even to academia. Apparently, about 43% of law reviews have never been cited in another article or judicial decision. Are Indian law reviews, both peer reviewed and student-run, facing similar challenges of redundancy? How useful are Indian law reviews to the judiciary when decisions are being delivered? What role do university published law reviews play in the work of the Bar? Does the academy believe that these publications are fecund ground for debate? These are some of the questions that this article series seeks to answer in its next editions.

Ashwita Ambast is a graduate of the National Law School of India University and the Yale Law School and has worked with the National Law School of India Review, the Yale Journal of International Law and the Yale Human Rights and Development Law Journal.