Litigation Skills

[Video] How can a junior advocate assist better during arguments?

For up to a few years after they enter the profession, advocates can find themselves assisting their more senior colleagues in court. What is the role of an assisting counsel and how can a junior advocate excel in that role? These are questions that naturally occur to a junior advocate but unfortunately, only experience and corridor conversations seem to present any answers.

We felt that there was much to learn from the experiences of others and so we put these questions to a number of young Delhi-based litigators.

Watch what they had to say, in the video below.


Four rules that will help you navigate the perils of online legal research

DeekshaSinghAs online resources become the primary tool for legal research, some basic rules will help avoid common pitfalls.

1. Have a research plan

We have all gone online to look up one thing and ended up some time later reading or watching something completely unrelated. It is easy to lose track of where you are up to and even what things you have already looked at.

To deal with this, you could maintain handwritten notes or keep notes on a separate document open on your computer. List the websites that you have been to and keep track of the sources you want to come back to. Many subscription services, such as Manupatra, even provide a function where you can save all or some of your search results.

Also remember that when you use search engines like Google, Yahoo!, and the like to find resources, you need to follow a research plan. If you do not know what you are looking for, then a general Internet search is probably going to result in you wasting more time, rather than finding anything useful. In those cases, it’s better to start with a general text or other treatise on the subject. However, if you do know what you are looking for—a specific case or author, for example—then you may find online, exactly what you need, very quickly.

A note of caution here—if you are presenting a research paper in law school, for example, do not simply rely on the contents of what comes up in the first one or two pages of a Google search. If you do, you will likely find that your research is no more extensive (and almost identical) to that of many other students in your class.

2. Identify the correct search terms

One of the key steps of legal research, whether online or offline, is generating the right search terms.

Keep a note of key words that come to mind as you are analysing the legal problem. It is easier to generate key search terms by keeping in mind categories of information such as the parties, the places and things involved in the case, the potential claims or cross-claims and defences, the conduct of the parties, and the injury or harm suffered.

JuvenileJusticeWordCloudIt helps to start with broad search terms and to narrow them down as your research proceeds, especially if you are researching an issue in an unfamiliar area of law. You can narrow the search terms down once you are sure you are on the right path. Looking at the results from broad search terms and reconsidering the research issue before you, will help you generate narrower search terms.

Remember, in online research, you may have to play around with several search terms to ensure that you are aiming your research in the right direction. Starting with a simple one-word Google search is most likely going to be useless, or at least a waste of time.

The increased use of technology has also changed the legal research landscape in many ways. We now have access to a wider variety of authorities, both within and from outside any jurisdiction. This makes the analysis of information and critical thinking about the law even more difficult and we need to be able to do more than enter queries into search engines. We need to be able to access, sort, and analyse information intelligently and in a continuously flexible fashion.

It might actually be more helpful to begin with a general textbook or other print resource if you are doing research in an area that you are unfamiliar with. Something as simple as scanning a table of contents might help you frame a more effective search term, find the leading case or main statute, or help you narrow down the areas you need to look into further.

3. Know when your research is sufficient

When do you know that you have done enough research? Efficient research requires knowing not only how and where to begin research, but also having an idea of where to draw the line in the research process. No matter what form of research you are doing, you will need to learn to recognise when to stop your research and collate it.

The challenge with legal research these days is to find the information that you need from amongst the massive amount of information available online. Any search that you conduct turns up hundreds, or thousands, of results. Often two practical considerations will limit your research: namely economics (or the costs involved), and the time you have to complete your research.

When you are given a topic to research at work, it is important to evaluate the stakes that are involved. If it is a legal opinion for a client, then you need to decide beforehand, the amount of information your client would require at that stage. If your firm is billing the client by the hour, the research can be endless but time is an important factor that will dictate the conclusion of your research.

Apart from these practical considerations, the findings of your research may by themselves indicate when you need to stop. It is highly unlikely, for example, that you will find a case with facts identical to your case, but if you have found a case with similar legal issues, and from a superior court in your jurisdiction, in short, a case that is ‘on point’, then you can probably safely end your research on that issue. Another indication that your research is complete is when you begin bumping into the same authority repeatedly.

4. Ensure the information you find is credible and accurate

One of the biggest challenges in online research is ensuring the credibility of your sources and the accuracy of the information you get.

librarycardstackIn the case of primary sources, for example, you might wonder how you know whether the legislation that you are reading is the most up-to-date version. The variety of secondary sources presents even greater difficulties. You might find an article but how do you know whether the person who has written it is credible, or has sufficient knowledge in the area so as to be reliable?

Often, you will not be able to confirm the veracity of your sources but you can, however, ensure that you choose more popular sites more often, and rely on those sites, services, and authors that are generally considered credible. Use your common sense—it might be okay to present a blog post as evidence of someone’s opinion, but unless the author is an established expert in the field, it is probably not a good idea to rely on that opinion as truth or authority, or as a way of establishing something as a fact.

Most departments of the government and government bodies such as courts and regulatory bodies have websites. While some are better than others, many of them contain a wealth of information. Legislation and the judgments from most superior courts in India are available online. The versions of judgments and statutes that you find on these websites are usually reliable as they are published by the very body that produced or authored them. When conducting research on areas of international law, take the time to find the official government websites.

A note of caution here—unfortunately in India, government websites are often not updated to reflect the most current statute. You will often find old versions. Always combine your research on government websites with research on paid subscription resources or even a recent printed text to be sure that you are relying on current legislation.

Databases hosted by universities and other higher learning institutions are often excellent sources for authoritative journal articles.

Then, there are unofficial websites that focus on law and legal research. By ‘unofficial’, we mean those that are not hosted by a recognised governmental department or established university. Just keep in mind that you may need to back up or check your research with a more credible source, or with a print resource, depending on what you are researching and the kind of audience your research will be presented to. Some free, popular and useful websites for Indian law resources on the Internet are JUDIS, Google Scholar, and IndianKanoon.

In addition, there are subscription databases that you will only have access to if you, your firm, university, or company has a paid subscription. These databases, such as Manupatra, LexisNexis, and Westlaw, include judgments and legislation, and many also offer a significant database of scholarly articles and textbook-style material. Each of these databases is presented and used differently, so you do need to ensure that you learn how to use them properly to research efficiently and effectively.

To conclude, as with most aspects of legal research, online research takes practice and some patience. We should not make the mistake of thinking that, because we are all so familiar with the Internet these days and use it constantly, that online legal research will be similarly easy or familiar. Take some time to learn about the different resources that are available, and familiarise yourself with the various search techniques that you need to use across those resources. As you develop your research skills, you will become familiar with the sites that you consider most reliable and simple to use. By relying on those sites and databases that you trust, as well as constantly being on the look out for new resources, you will always have the information that you need at your fingertips.

Deeksha Singh is part of the faculty at


How Narrain, Narasappa, and Salelkar built organisations that helped non-legal actors engage with the law

AtreyeeMajumder_CraftingLawCareersA lawyer is conventionally imagined as a standalone creature – someone who exercises the faculties of research, drafting, and argumentation as an individual. A lawyer operates in these modes, usually aided by clerks and junior associates. With the expansion of the modes of negotiation-based lawyering, legal work has spread across large teams and progresses along associational logics. This is especially true for legal practice in transactional advice, due-diligence exercises, arbitration, and so on. Of the four figures I have spoken about before, three have started or helped start new organisations – Arvind Narrain started the Alternative Law Forum, Amba Salelkar helped with the establishment of the Inclusive Planet Centre for Disability Law and Policy, and Harish Narasappa has been involved with starting two organisations – Samvad Partners and Daksh India. I wish to focus on the specific skill of beginning, sustaining, and spreading an organisation. It is not a skill that lawyering necessarily teaches. Why did these lawyers see value in initiating organisations?

We might derive organisational models from the eminent French sociologist Emile Durkheim – shared values and goals lead to a mechanical solidarity, while organic solidarity arises out of a community fitting into each other’s needs. It is difficult to fit a legal organisation clearly into the fold of one or the other. In focusing on three policy reform and legal activism organisations, I might show that their inception is closely linked with a different strategy of lawyering, and therefore, form the bases of mechanical solidarity.

Harish Narasappa at the launch of Daksh's Rule of Law Project on February 7, 2015.

Harish Narasappa at the launch of Daksh’s Rule of Law Project on February 7, 2015.

The Alternative Law Forum (“ALF”) quite literally spells its agenda out as ‘alternative’; the others too attempt to put in place a professional architecture where a diverse set of lawyering services may be nurtured and delivered. Inclusive Planet attempts to provide a bridge between mainstream lawyering wisdom and large numbers of persons with disability, advocates, caregivers, and others, who need a basic understanding of what the law is and what it can deliver for them to address disability. The spread of such legal literacy is at the heart of the ALF’s long career as well – Narrain and his colleagues speak to many non-legal audiences, especially students, about legal issues of contemporary importance, especially on gender and sexuality. At Daksh, the engagement with the public is to train a certain ear for information which is to be culled out, collated, published, and fed back into the citizenry in order to be used for effective democratic practice, in elections and elsewhere. These methods generate solidarities beyond the technological walls of legal learning and expertise. Publics involved in the journey towards a certain mode of justice or equity, come to use and inhabit the law and its machinery through such organisations. Publics are able to imagine themselves as active users of legal and judicial wings of the state. As much as this habitation may bring concrete benefits in terms of legal reform or relief, it also generates a live register in which to rehearse and consolidate the terms of citizenship.

Organisations like the Lawyers’ Collective and individual lawyers like Rajeev Dhavan, Indira Jaisingh, Prashant Bhushan, and others have provided such organisational leadership in the litigating domain. These lawyers have formed bridges between social movements, civil society orgnisations, and the judiciary, often urging the judiciary to take activist stances towards various state and private bodies. Their lawyering has yielded expansive interpretations of fundamental rights especially in the context of free speech, discrimination, the rights of minorities, affirmative action, and so on. There is no doubt that the tradition of judicial activism has been a key tool for the broadening of access to law by the general public.

ALF's Lawrence Liang (left) speaking at the iCommons summit in Dubrovnik in 2007.  CC BY 2.0

ALF’s Lawrence Liang (left) speaking at the iCommons summit in Dubrovnik in 2007. CC BY 2.0

Between the law and the public, a dynamic and inchoate space has been sustained by efforts of public interest legal organisations. One could argue that this space is one among many other civil society spaces. I would argue that the use of the law and the conscious engagement of a public in such legal activism, is a specific register of civil society – one that exercises a facility in speaking the impervious state language. It may earn legal benefits. But the long view of benefits is more towards empowering a shade of public voice that speaks the language that the state speaks in. With Daksh especially, we find the ability and scale of operation to be one that impacts the everyday practice of democracy (at the localised scale of the MP and the MLA) for large numbers of citizens. To the extent that it is possible to make democracy meaningful for each citizen, organisational spaces that percolate the effect of law are most important. To this extent, the activities of legal sensitisation, teaching law to non-lawyers, campaigns for non-judicial law reform, implementation efforts that engage state actors, affected parties, intellectuals, and activists are of key importance in the wide arena of civil society efforts to engage the government. To be aware of the law, talk in its idioms, and talk back to law-making and implementing authorities is close to impossible without the assistance of organisations such as this. That lawyers such as Narrain, Salelkar, and Narasappa are able to open spaces for such active engagement with the law, involving non-legal actors, is a significant contribution to the role of law in the functioning of a democracy.

(Atreyee Majumder is an anthropologist. She teaches at the School of Development, Azim Premji University.)

Human Rights

In the ‘red corridor’, human rights advocates fight misuse of stringent laws

Manish_goodhumanrightslawyeringThe difficulty of being a human rights lawyer is amplified in areas where the State is engaged in conflict with extremists or other organisations. Surendra Gadling is a Nagpur-based advocate who has successfully defended individuals accused of being Naxalites. Earlier this year, he was instrumental in securing the acquittal of Sudhir Dhawale, a Dalit activist and intellectual who was arrested by the police in 2011 for alleged Naxal links. Having dealt with extra-judicial killings and false cases during two decades of practice, he said that a major problem with working in conflict zones is that since their location is predominantly rural or in forested areas, victims of human rights violations face great difficulty in approaching lawyers. He also agrees with the approach advocated by Rajvinder Singh Bains, a human rights advocate he considers a good friend and colleague, of filing criminal complaints against State officials in cases of extra-judicial killings.

Manoranjan Routray, a young advocate practising in Koraput in Orissa, agrees. Many of those alleged Naxals are either poor adivasis or activists and intellectuals who have spoken out against the State, which in retaliation slapped them with the draconian provisions of the Unlawful Activities Prevention Act, 1967 (“UAPA”) and other similar laws invoked to ensure that the arrested person does not get bail easily. The police also use Section 3 of the Criminal Law Amendment Act, 1961 and Section 25 of the Arms Act, 1959 on a regular basis. He narrated the story of the Chasi Mulia Adivasi Sangh (“CMAS”), an organisation of tribals that came together to fight for land and forest rights. On suspicion of a few members having Naxal links, the Government of Odisha banned the entire organisation and began a systematic witch-hunt against its members. Most of those who were picked up or detained in this manner were poor adivasis who had very limited access to legal aid. Mr. Routray was representing some of them. This was only an indicator of the State’s larger effort to silence movements of assertion of identity and resistance by adivasis, who are constantly suspected and accused of supporting the Naxals even in the absence of any clear evidence.

KoraputDistrictAndSessionsCourtOn an earlier visit to Koraput, Mr. Routray had taken me to the district court there, which is a far cry from the swanky interiors of the courts in Delhi and Bangalore. Besides the abysmal infrastructure, the place had a generally depressing feel. The overwhelming presence of armed police personnel created an intimidating atmosphere even for an outsider like me. One can only imagine what undertrials and lawyers would have to go through, visiting this place on a regular basis.

Besides the lack of basic infrastructural facilities, courts in such locations tend to be less inclined to grant bail, when stringent provisions under national security legislations are invoked. Earlier, the Terrorist And Disruptive Activities (Prevention) Act, 1987 and then the Prevention Of Terrorism Act, 2002 were used for this purpose. After their repeal, the UAPA has been invoked, along with the occasional provision from the Indian Penal Code, 1860 such as Section 124A, which deals with sedition.

Surendra Gadling
Surendra Gadling

Another major issue in conflict zones is that since there are very few lawyers in these areas to deal with the large number of UAPA cases, they are heavily overburdened. The police also file a large number of cases against individuals. Mr. Gadling cited one instance where 101 cases were filed against a single individual and other cases where entire villages have been accused. Consequently, lawyers in this field get several matters on a single day and often have to resort to improvisation and innovation in their arguments across several cases since it is not possible to work on each case in a planned and systematic manner.

The extent to which the law is misused is evident from the fact that in the past ten years, there has only been one conviction in the whole of Vidarbha – that of Vernon Gonsalves in 2013 (which is being appealed in the High Court). The fact that a majority of these cases are false is also illustrated by the fact that there is very little evidence that the prosecution produces at the time of the trial, barring confessional statements of other persons in custody, which usually does not stand up to legal scrutiny. However, by the time an acquittal is secured, the individual has already spent a considerable amount of time in jail, which leaves him demoralised. Thus, the law is used to terrorise and intimidate not just activists working in the field, but also people who might be interested in and sympathetic to the cause. Likewise, lawyers and activists are often subject to direct or indirect intimidation and threats by the police. While neither Mr. Galding nor Mr. Routray had been directly threatened, they admitted that they were very often working in an atmosphere of great tension and pressure. The police have made general statements warning lawyers and made indirect threats through their clients.

(From left to right) Soni Sori, Sudhir Dhawale, Binayak Sen - victims of police excesses in the red corridor.
(From left to right) Soni Sori, Sudhir Dhawale, Binayak Sen – victims of police excesses in the red corridor.

Both Mr. Gadling and Mr. Routray, who are practising in the towns they grew up in, said that their entry into human rights lawyering was motivated by their activism during their student days, during which they became aware of pressing socio-political issues around them. Mr. Routray also cites as an inspiration, the mentorship he received from his senior, Nihar Ranjan Patnaik, an experienced advocate who also led the local bar association. While it is important to try and be self-financed, financial support is also available in the form of donations from well-wishers towards individual cases, as well as through informal networks with organisations like ActionAid which work in these areas.

In situations like these, where one is constantly under threat, solidarity is critical. There is an informal network of lawyers working in these conflict zones, particularly Vidarbha, Chhattisgarh, Jharkhand, Odisha, and southern Madhya Pradesh. This network is often called on to help in situations where the same individual is charged with offences in two or more states, which is often the case, given that the so-called ‘red corridor’ extends across state boundaries, as do police efforts against it. There are also a few senior advocates in some high courts and the Supreme Court who maintain contact and provide help when required. Indeed, the role of the advocate in conflict zones is more political than legal. It is a statement against the State’s attempt at silencing dissent and more lawyers need to take up cases in these areas.

(Manish is a legal researcher based in Ahmedabad.)

Human Rights

Trials are important but go to the High Courts for speedy human rights remedies

What is human rights lawyering? According to Sarim Naved, a Delhi-based advocate who has represented people accused in anti-terror cases, every criminal lawyer is in a sense a civil liberties lawyer: one could just as easily be framed and detained in a theft caseManish_goodhumanrightslawyering as in an anti-terror one. More specifically, though, he defines the contours of a human rights or civil liberties lawyer as one who is involved with particular kinds of political cases where individuals are targeted through the criminal law because of who they are – Adivasi, Muslim, or “Naxal” – as opposed to what they have done. The State’s power in such cases renders the entire system susceptible to bias, and this is where the role of the human rights advocate comes in, to ensure that there is a fair trial and the State does not monopolise the proceeding. He clarifies that despite a very common misconception that civil liberties lawyers hate the police, most do not, and do recognise that it is a very difficult and thankless job. He said that the truth is usually somewhere in the middle of both versions, and that the trial court is the best place to determine this.

Custodial torture presents one of the rare situations where the otherwise well laid out criminal procedure presents the victim with a choice of fora. Mr. Naved however, would always advise his clients to approach the High Court, rather than the trial courts. While a person who has been beaten or tortured by the police should ideally be able to file an FIR or approach the Magistrate and seek an inquiry, that is never done. The only option in such cases is to approach the High Court or an organisation like the National Human Rights Commission (“NHRC”).

SexualHarassmentAtTheWorkplaceMOOC2When I met him at his Hauz Khas Enclave office to speak about human rights lawyering in the trial courts, Mr. Naved said that his few interactions with the NHRC had all been fruitful. In one such incident, he was informed that the police had picked up a group of Rohingya refugees, who were protesting outside the office of the United Nations High Commissioner for Refugees (“UNHCR”). As he was in court and unable to visit the location, he called the NHRC, who then sent the police station a notice directing them to explain their action at a hearing which would be held for the purpose. On another occasion, a fax sufficed – he did not have to meet the Chairperson or even make a visit in person.

A preference for human rights remedies at the High Courts

The speed at which a remedy can be obtained from the High Court is an important reason why Mr. Naved prefers writ remedies. Any Division Bench in a high court can take interest in a case and direct the State to provide quick responses. The same level of urgency is not possible in trial courts, because they are governed by the Code of Criminal Procedure. The trial courts also have a very heavy workload. Mr. Naved suggested that there is an impression among lawyers that one will not get bail from the trial courts for the more serious offences. Most lawyers therefore, expect that the bail application at the trial court will be dismissed and therefore treat it as a formality before approaching the High Court. He admitted however, that he has no empirical evidence that the trial courts are actually ineffective and that his faith in the constitutional courts could just be part of a self-fulfilling prophecy with lawyers refusing to approach trial courts simply because they believe that they will not be able to obtain an effective remedy.

Being a relatively untested location for human rights issues, however, also means that fighting for these remedies at the trial courts requires imagination and courage of a certain kind. Says Mr. Naved, “When someone approaches you with a complaint of their rights being taken away or them being subject to various kinds of discrimination at the hands of the state, it requires a lot of courage to take a path that is not so well trodden.” Indeed, the likes of Dr. Kannabiran have shown that with persistence and conviction, it is possible to raise these questions at the trial courts, and obtain relief.

Skills on trial

Sarim Naved, human rights lawyer.
Sarim Naved, human rights lawyer.

That said, the importance of trial proceedings cannot be understated. “There’s only one place in this entire system where you can factually establish your case or disprove the prosecution case – and that is the trial court,” Mr. Naved said, adding that even for a completely innocent man, if the right questions are not asked at the trial court, the best of lawyers would have a hard time getting an acquittal from the higher courts, where it is only a matter of competing affidavits and the evidence is not really tested. Cases have been lost at the Supreme Court because the trial court lawyer was not very efficient. At the same time, there are notable success stories too: the acquittals of young men who were framed in terror cases described in a report by the Jamia Teachers Solidarity Association were all achieved at the trial courts.

The trial courts also require a particular set of skills—exactness, precision, the ability to think on one’s feet, and sheer determination to plough through the prosecution record, particularly in major cases such as those involving anti-terror laws, where, according to Mr. Naved, the prosecution relies on volume rather than quality of evidence. The attention to detail required while dealing with a very large amount of information, can be acquired only from a senior who has done it and will teach one to sift out relevant material from the huge volume of information, and then explain how to use it within the law. He credits his mentor, veteran advocate Nitya Ramakrishnan, for helping him develop these skills during his early days in the profession.

While defending an accused at trial, an advocate has to create a record that is favourable to the client by being present every day, making the correct decisions, and asking all the correct questions in the correct order. In contrast to an appellate setting, where the record is before the court and one knows what to say, the trial is a dialogue between the advocates, the judge, and the witnesses, and one does not know what answers to expect. The intimacy of the trial court setting also means that there is a simple level of humanity that exists there, unlike the structure of the higher courts which keeps a distance between the bench, the bar, and the client. Ultimately, Mr. Naved says of the trial courts, “It’s important to fight out battles there, because that’s the only place where everyone is face to face.”

(Manish is a legal researcher based in Delhi.)