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Human Rights Litigation Uncategorized

Court (2014) is a searing look at courts but might as well have been based on a theft case

Mansih_myLawCourt (115 min, English/Marathi/Gujarati/Hindi, no subtitles; dir: Chaitanya Tamhane)

A sewage worker’s dead body is found inside a manhole in Mumbai. An ageing folk singer performing an anti-caste composition is arrested and bizarrely accused of performing an inflammatory song that may have incited the worker to commit suicide. The trial unfolds in a lower court, where the hopes and dreams of the city’s ordinary people play out. Forging these fates are the lawyers and the judge, who are observed in their personal lives beyond the theatre of the courtroom. Touching on a wide range of themes from poverty, caste, and power inequalities to antiquated laws and judicial reform, Chaitanya Tamhane’s Court has all the elements of a great plot, but falls well short of being a great film. Too many issues are unsatisfactorily dealt with, leaving the viewer deeply disappointed.

We are introduced to Narayan Kamble, a rousing Dalit folk singer who moonlights as a tuition teacher to earn his living but for the most part, goes around the city’s Dalit chawls with his troupe singing the compositions of Sambhaji Bhagat. Halfway through his performance, a group of police land up and arrest him. Kamble’s role in the film, for the most part, ends here: the rest of it is centred on a criminal court, and its three main actors. We are introduced in some detail to Kamble’s lawyer, Vinay Vora, a genteel Gujarati criminal defence advocate who shops for wine and cheese, hangs out at nightclubs and listens to jazz in his car. Opposing him is Public Prosecutor Nutan (whose name, strangely enough, we don’t learn till the closing credits), a middle-class Maharashtrian who juggles her job with managing two kids and a diabetic husband, commuting by the local train everyday. Mediating these sometimes-comical interactions between the two in court is the razor-sharp Sessions Judge Sadavarte, who is a stickler for procedure even at the cost of efficiency – and in a way, also symbolises everything that is wrong with the judicial system.

Court_ChaitanyaTamhane_poster

Through these three characters, the film gives us a searing look at the everyday life inside a courtroom. Kamble’s trial and tribulation is an incidental vehicle. Class, language, and caste collide in sometimes-violent ways: the English-speaking Vora versus the chaste Marathi-speaking Nutan; the Dalit chawls versus the posh residences. Several problems of the judicial system are also showcased extremely well, with the focus on Vora’s frustration as he struggles to extricate his client from jail, despite the prosecution’s case crumbling further after each hearing. The personalities of the three characters play out in ironic, nuanced contrast. Vora, despite his high-flying lifestyle, is the saviour of the oppressed, visiting Dalit chawls, and speaking at Leftist seminars defending civil liberties. Nutan, despite her seemingly mundane, ordinary background, is a cheerleader for the kind of xenophobic rhetoric that would make Bal Thackeray proud. Sadavarte, for all his acumen in court and faith in legal procedure, is revealed to be a very different kind of believer in private. Tamhane develops the flaws in each character rather well, and by the end it is hard to decide whom to love – or hate – more.

Court won the Best Debut at the Venice and Mumbai Film Festivals – and it is easy to see why. The film is well made, with good dialogues, screenplay and editing. The long shot is used liberally and to good effect, and the de-glamourised colours create an effect of everyday Mumbai, as opposed to a “filmy” setting. Refreshingly, the film also manages a fairly accurate depiction of the judicial process, steering well clear of the tiresome “tareekh pe tareekh“ trope. As a story, though, it fails: one is left wondering why the director chose a very powerful background without any intention of developing it. In the end, even the theme of legal or judicial reform is not taken beyond a point. The disappointment could best be summed up by the comments of a lady who sat in front of me at the screening at the Dharamsala International Film Fest: “What was the point of choosing a political story? They could as well have used a common theft case to illustrate the point.” Go and watch Court for the film as a cinematic experience, but if you’re looking for a story or the treatment of an issue, you’d be better off watching the likes of Anand Patwardhan’s Jai Bhim Comrade.

(Manish is a legal researcher based in Ahmedabad.)

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Corporate

Be cool, look sharp, take notes – these and more tips to ace your M&A negotiation

Drafting_for_Business_Deepa_Mookerjee.jpgIn my last post, I discussed some key points that you need to remember while preparing for a negotiation during an M&A transaction. Let us now discuss the things you have to bear in mind after negotiations have started.

Your demeanour

Clients and parties come with different temperaments. Some of them may seem polite while others may be a bit rude and even a little pushy. Irrespective of how the other side is behaving, you have to be equable and composed at all times. Be firm but polite. Do not get ruffled by any behaviour from the opposing side. Put your case across clearly and (if necessary) a bit forcefully but avoid foul language, impolite behaviour, and harsh words, all of which are more likely to lead to an unsuccessful conclusion.

For a negotiation to be successful, all parties must be calm, composed, and ready to find a solution or a compromise. Remember that you are the lawyer and therefore, do not have a personal stake in the subject of the negotiations. Your clients on the other hand, are financially (and possibly even personally) invested in the transaction, and so may be unable to take a balanced approach to some issues. You have to be the voice of reason.

As discussed in the last post, you need to know your client’s bottom line before the negotiation starts. However, if during the negotiation, your client is being unreasonable, either try to park the issue for a lengthier discussion later or ask your client to step out of the room to discuss the matter privately. If the discussion has stalled on a particular issue, try to move on and resolve other smaller issues before circling back to the unresolved one. Parties are likelier to feel that they have achieved something rather than return to an issue feeling like there was no resolution on any of the issues.

Your attire

While your attire may seem a slightly foolish (and even flighty) issue to even mention in this context, do not underestimate the importance of your clothes. For instance, if you came to the negotiations in your pyjamas or in wrinkled clothes that look like you just rolled out of bed, your client may feel that you are not taking the negotiation seriously. Even your opposing counsel is likely to feel that you have not taken the negotiation seriously. You need the opposing side to take you seriously and have faith in your abilities as a negotiator. Only then will they listen to you and consider your point of view. Dressing the part is important.

Always dress formally. Look smart, clean, and well put-together. Remember this is a key part of your job and you must dress in a manner that is acceptable in your office.

Take detailed notes

As a lawyer, we sometimes feel that it is not our job to take detailed notes. After all, we took notes throughout our student lives and taking notes during a negotiation might make us look like we are back in college. Having so much faith in your memory can get you into trouble because it is unlikely that you will be able to remember everything. After all, negotiations can continue for days and quite often, issues that had seemed resolved are re-visited to reach a fresh conclusion. Particularly in such situations, no matter how good your memory, you are likely to be confused if you don’t jot down those points or the conclusions that have been reached.

If you are not used to taking down notes while talking, keep a computer open in front of you and type out the conclusion concisely next to each point. Quite often, lawyers also ask for a very short break after a point has been decided to jot down the result before moving forward.

Remember that all of these points and conclusions will later be inserted in definitive documentation. Your client will rely solely on you to ensure the correct position is reflected in the documents. Having something written down – to refer to later – helps to ensure that your understanding of the results of the negotiation is correct and that you have not forgotten anything important.

Use the breakout room

The term ‘breakout room’ refers to a room outside of the room where the negotiations are being held, where parties can convene with their lawyers to discuss a particular issue. This helps break the monotony of the negotiation if there is any deadlock and gives the parties a chance to honestly review their positions with their lawyers without being overheard by the opposing side. While a negotiation process is going on, suggest a “time-out” or a visit to a breakout room if you feel that things are getting too heated, if you need to discuss an issue with your client privately, or even if you have a new idea or strategy for your client. It is always better to interrupt a gridlocked negotiation than continue to argue without any hope of a result.

Keeping these points in mind will help achieve a successful outcome to the negotiation. However, following these rules does not guarantee success. We should all remember that a negotiation depends mainly on the parties and their behaviour, which is bound to differ from one to the next. For lawyers, the best course of action is to keep these basic principles in mind and then adjust them to suit the temperaments of their clients.

(Deepa Mookerjee is part of the faculty on myLaw.net.)

Categories
Litigation

These qualification rules from other jurisdictions will make you will feel better about the Bar Council’s new practice rules

PraptiPatelEarlier this month, the Bar Council of India came out with the new Certificate of Practice and Renewal Rules, 2014 which mandate that an advocate must complete at least two years of practice before the trial courts or three years before a high court in India if they are to be eligible to practice at the Supreme Court. These new requirements of course, are in addition to the requirement of having an LL.B degree and then passing the All India Bar Examination (AIBE). India is not alone in requiring graduates to fulfill some more conditions before they are allowed to become full-fledged lawyers. Let us look at a few other jurisdictions.

United States of America

In the United States of America, each state has its own rules governing the admission of advocates to the Bar. Generally, one must obtain a bachelor’s degree known as a Juris Doctor from a law school approved by that state or complete an approved law clerk programme, also known as “reading the law”. Thereafter, except in some states, candidates must pass the Multistate Professional Responsibility Examination (MPRE), which covers the professional responsibility rules governing lawyers. Connecticut and New Jersey waive the MPRE for students who receive a grade of C or higher in their law school professional ethics class.

After this, they must give the state bar examination, which differs from state to state. As of this year, fourteen states have adopted the Uniform Bar Exam (UBE), which in turn consists of the Multistate Bar Examination (MBE), a standardised test consisting of 200 multiple-choice questions covering six key areas of law, the Multistate Essay Examination (MEE), a uniform test that examines a candidate’s ability to analyse legal issues and communicate them effectively in writing, and the Multistate Performance Test (MPT), a “closed-universe test” in which each candidate is required to perform a standard lawyer’s task, such as draft a memo or brief.

After clearing the requisite bar exams, the candidate must be certified by the state bar association as having “good moral character” and “fitness” to practice law, after which they can apply to the state authority for a license and a certificate of admission.

The American legal system does not require its candidates to undergo a formal apprenticeship or training after they obtain a degree or take the bar exam. The two exceptions are Delaware and Vermont, where prospective advocates must serve a clerkship under a lawyer admitted in that state for at least five months (in Delaware) and three months (in Vermont).

Canada

In Canada, one must complete an undergraduate degree in any discipline and then a graduate law degree (LL.B., which lasts three years or B.C.L., which lasts four years) or Juris Doctor (three years). The applicant must then successfully complete the bar exam for that jurisdiction and complete the Professional Legal Training Course.

Thereafter, the applicant must complete an apprenticeship referred to as “articling” under a lawyer for anywhere between nine to fifteen months, depending on the province or jurisdiction within Canada.

England and Wales

In England and Wales, unlike India, the professions of solicitor and barrister are different. One must obtain an undergraduate law degree (which lasts three years), or complete the Common Professional Examination or a Graduate Diploma in Law (which lasts one year after completing an undergraduate degree) to be either a barrister or solicitor.

Those who want to be solicitors are then required to complete the Legal Practice Course which lasts one year and then a two-year apprenticeship under a training contract, during which the trainee solicitor has to complete a Professional Skills Course.

Those wishing to practice as barristers must usually complete the one year Bar Professional Training Course, followed by a year of vocational training known as ‘pupillage’.

Pakistan

In Pakistan, one must obtain a graduate degree, followed by an LL.B degree (lasting three years) from a recognised university in Pakistan or any other common law jurisdiction in the world.

Thereafter, they must undertake apprenticeship or training under a senior lawyer for one year after which they must take the Bar Exam and give an interview with a committee of lawyers. After that the respective Provincial Bar Council may grant him or her rights of audience in the lower courts.

The advocate will earn rights of audience in the high courts of Pakistan only after two years of practice in the lower courts, at the end of which the advocate must sit for another professional exam and give an interview with a judge of a high court.

After ten years practice in the high courts, the candidate must sit for another professional exam and give an interview with a judge of the Supreme Court to be given the rights of audience in the Supreme Court of Pakistan.

Australia

In Australia, students must first obtain an undergraduate LLB degree or a graduate JD from any recognised university. After that, they have to complete an approved practical legal training under a senior lawyer. This is usually called “articles of clerkship”.

After the clerkship is complete, the candidate is granted admission to the state bar and a person holding such admission certificate from any Australian jurisdiction is entitled to practise in other jurisdictions without gaining admission in that state bar.

Singapore

Persons seeking admission to the Singapore Bar must obtain a law degree of at least three academic years from an approved university, which is either an LL.B. or LL.B. (Honours), depending on the university, or a J.D. (from any of the four approved U.S. universities or Singapore Management University). Candidates must then sit for the Singapore Bar Examination, which consists of a written examination and a five-month practical course. They must then complete a six-month Practice Training Contract before they can be called to the Bar as advocates and solicitors of the Supreme Court of Singapore.

(Prapti Patel is a student of the Indian Law Society’s Law College in Pune.)

Categories
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.)

Categories
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.)