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Declaring Independence Part 2: Sourcing Work for your Independent Practice

 

Sourcing-Work

Declaring Independence  is a series by Tishampati Sen, an Advocate-on-Record who quit his job at a top-tier law firm to start his own practice. Setting up one’s own practice at a relatively young age is a challenge, albeit one that can have great rewards. Every month, Tishampati will look at an important aspect of going independent and have useful tips and advice for young lawyers who just want to break free! Read the previous post here.

I knew at the time of taking my first steps towards independent practice, that one of the formidable challenges in front of me would be of generating enough work to make a living. One of my greatest apprehensions at the time of making the move was that I might have to sit idle for many months before people would actually entrust with work. From the very beginning, therefore, I associated with and assisted eminent senior counsel and other advocates in their work so as to be ‘in – practice’ even while my independent work gathered momentum

But from very early on, in fact even before I had completely quit the firm that I was a part of, I had started pitching for work and trying to impress upon people the fact that a new hotshot lawyer was soon going to be available to take care of all their legal needs.

DRAWING A BOUNDARY

One of the key questions that people would ask me is “so what kind of work do you do?” and my immediate response would be “Everything”. But invariably the person would continue to look at me expectantly waiting for me to say something more, before finally nodding and uttering a dismissive “good”. But I didn’t know a better answer at the time. I was actually preparing myself to do all sorts of legal work. I had both transactional as well as dispute resolutions experience and intended to do both kinds of work in the future as well. Over a period of time, immediately after my “Everything”, I decided to add, “I do both litigation as well as transactional work” to fill the awkward silence. But to my surprise I was still met with a glazed look.

One of my more experienced colleagues heard my response one day and decided to rescue me. He let me in on a little secret. “Branding is important. People don’t like to believe that ‘everything’ is possible. Give them a boundary and a framework. When you give them your limitations, your capabilities also become believable; and if you haven’t discovered your limitations yet, invent them.”

This is one of the most important and beautiful lessons in human psychology for me. I am not sure if I completely believed it at the time, but the next time some one asked about the kind of work I do, my answer was a little more tempered. I still told them that I do everything but I also added an ‘except…’ and told them one or two things that I don’t do; or what I haven’t done yet – but was willing to do if the opportunity presented itself. Surprisingly, there were many more people now nodding and moving forward with the conversation. In fact, there were even some who would discount my ‘limitation’ and say “Yes, but after all it’s only another branch of law. If you study it, I’m sure you’ll pick it up.” 

FACTORS GOVERNING THE CHOICE OF WORK

There could be a few factors that could govern the kind of matters/work that one may want to source and take up at this stage:

1. Streams: There are some who, like me, enjoy both streams of practice and therefore may actively look to do all sorts of work in both transactional–advisory practice, as well as in litigation. In fact from my experience, the learnings in one could even help your develop your skills in the other. For example, the litigation experience and the understanding of the courts and the processes involved has helped me develop a different perspective on the language used in contracts. I now have an understanding that clauses that may seem air–tight in language may be looked at in a completely different context in court. As such, the advice on the transactional side is now more pragmatic than theoretical. Similarly the experience on the transactional side helps in grasping complex transactions better and may, therefore, allow one to articulate the issues involved much better in court.

However, there are also those who would much rather focus on any one stream (and within that, a sub-stream) to be able to build a brand and expertise in the subject. One cannot deny that in this field where a client’s interest and sometimes life is at stake, how the world perceives you may become relevant. Some time back when a friend needed legal representation for a family member who had unfortunately been tangled up in criminal proceedings, he was very clear that he wanted a ‘pure’ criminal lawyer. Not someone who also practiced criminal law. Similarly in sensitive matters such as divorce etc., parties may be more comfortable with an advocate who shows herself to have expertise in that field.

2. Forum of Practice: This is more relevant for the litigation side of the practice, as often advocates may also target work keeping the forum in mind. There are those who may have a wider network outside the city/state, as such it may make sense to consider appellate forums. The choice of the forum could also be impacted by various other considerations such as the kind of work that one enjoys (trial matters, versus consumer matters, tax etc.), the clientele typically associated with a particular forum, the regularity of proceedings in the forum, or simply what interests you more etc. Here again there could be the debate for specialisation versus exploration. I know of many young advocates who have focused on the practice in a few particular forums. Over a period of time they have developed a better understanding of the processes and the requirements in the registry and are able to better fathom the tendency and mood of the bench. These advocated then become much more in demand in these particular fora. However, on the flip side one may want to practice in various fora and over a much longer period have a much wider presence. In fact some might argue that having matters in various fora and the thrill of appearing before different judges with different opposing counsel is what makes the litigation practice exciting.

3. Realistic Evaluation of Reference of Work: Another perspective to keep in mind, while considering the kind of work that one may want to attract, is what would make sense in terms of being able to develop clientele. For example, as a young advocate it may make sense to spend as much time observing and assisting on trial matters, consumer matters, divorces etc., since the potential to have this nature of matters being referred to you by individual clients is much higher when on your own.

Even on the transaction front, it may make sense to initially focus on the kind of work that could lead to repeat requests and referrals by clients. For example focus could be on the issues facing start–ups that have great need for legal advice but may not have the budget to approach the established and eminent legal practitioners. Focusing on the individuals or smaller business units in the beginning may be a prudent starting point. 

CURB YOUR ENTHUSIASM

A common and popular advice seems to be that a junior advocate must be willing to take whatever work comes his way. Saying no to any work, no matter how tedious or boring it might seem, is almost sacrilegious. It makes sense of course – you must be willing to take the good with the bad, and only when you have had a varied and diverse experience can you even begin to identify your own unique strengths and weaknesses and likes and dislikes. In fact, a bit of a push and pressure may even help develop character and create the mettle to take up challenges. So the general idea is that one should never say no to work, and once accepted one must figure out the capacity and the wherewithal to handle the same.

However, there was one person who gave me contrary advice, which also made a lot of sense. This gentleman who has a thriving criminal practice, told me, over a cup of coffee, “it is equally important to curb your enthusiasm.” His point was that at the beginning of one’s independent practice, a junior advocate/lawyer must focus on work as much as self–development. “Eventually you have to start keeping in mind the balance–sheet, and focus on managing your office. Things like the supply of coffee for clients, printer cartridges, wages, etc., also start taking up your time. So value this time in the beginning. Now is the time to develop the lawyer within. Keep the businessman waiting for a while. Appreciate that since for now there is less work, you should read the law for the sake of reading the law. Sooner or later work will find you.”

He also warned me that taking up more than can be handled in the beginning could be more detrimental than not having enough work. If you tell a client frankly that you may not be able to handle his work, you may lose her/him temporarily. But servicing a client badly could lead to the loss of not just that client but many future clients as well. He called it “poisoning the line”, which had a nice dramatic ring to it and so it has stuck with me.

To close off this piece, I would like to remind you of what I had said in the beginning of this series: I am not qualified to give you advice as to your specific way forward. My only aim is to share my experiences and the views that others have selflessly and candidly shared with me. So, choose the viewpoint that suits you and your temperament best. See you next time!

Tishampati Sen

Tishampati Sen is an Advocate–on–Record  of the Supreme Court of India. He worked with one of the premier law firms of the country (in corporate transactions as well as dispute resolution) for many years before deciding to take the plunge of independent practice. He appears primarily before the Hon’ble Supreme Court of India, Delhi High Court and the National Consumer Disputes Redressal Commission.

Written by myLaw

Declaring Independence: What to keep in mind when starting an independent practice

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Declaring Independence  is a series by Tishampati Sen, an Advocate-on-Record who quit his job at a top-tier law firm to start his own practice. Setting up one’s own practice at a relatively young age is a challenge, albeit one that can have great rewards. Every month, Tishampati will look at an important aspect of going independent and have useful tips and advice for young lawyers who just want to break free!

Ever since I graduated from law school, I have enjoyed a wide variety of experiences. I have had the good fortune of starting my career with a large top-tier law firm in Delhi-NCR, where I trained with some of the finest lawyers and learnt how to be a legal professional. I gained experience in the transaction side of the practice, as well as in the dispute resolution side. I handled large deals and conducted negotiations and also learnt to prepare matters, draft pleadings and appear in various forums. However along the way I developed a strong desire and passion to be able to start something on my own. So finally, egged on by my family, much to the horror of some close friends and colleagues, I took the decision to quit the firm and work towards setting up my own practice.

Before we move on, let me say this right up front, this project is in no way an attempt to show-case life outside a law firm, or conversely the life within firm or to discuss which is better. I am only using this platform to share some of my experiences and lessons that I have learned in the process of setting up an independent practice.

Moving out of my Comfort Zone

One of the first things that I learnt when I told people that I am looking to quit the firm to start my own practice, was how woefully inadequate my life is! I had been looking at the world through rose tinted glasses. One very prominent senior colleague in the firm smiled at me and told me that I was having the “law firm mid–life crisis”. There were others who told me about the people who had tried their hand at starting their own practice, failed miserably and then could not even find a job at a law firm again. The fact is that we know of all the reasons why such a move could end up being detrimental.

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But I noticed that once I did take the step, let go of the safety net and swam into the rougher waters, there were plenty of people to hold my hand and show me the way. The funny thing is that most people will tell you only about what could go wrong, and I guess to a large extent that is needed so that you make an informed, practical decision. But happily, there are quite a few very successful advocates and legal practitioners out there, who have equally, and sometimes more remarkably left cushy jobs to follow their dream of having their own practice. These are people who understood the internal conflict and self–doubt that I was going through and gave me invaluable guidance and a pat on the back. Their only request was that I persevere even when I cannot see the light at the end of the tunnel. I still remember how a rather soft–spoken, quiet sort of a man, had looked squarely into my eyes and had said with a force I have never before noticed in him, “If you have a safety net, burn it. Only when there is a fire on your backside will you make this work”.

FIRST STEPS WHEN LEAVING THE FIRM

So if you are in a law firm and have decided to branch out on your own, the first few steps could possibly include the following:

1. Save, Save and Save

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Definitely give yourself a few months (if not a year or more) before you disclose that you plan to move out. Use the steady flow of income that is coming your way to create some savings. One of the great things that my wife helped me do was analyse our spending and expenses for a couple of months (of course being told that I don’t really need a new PS3 game, was like being relegated back to school), and we came up with a number which would be the average monthly expense. Keeping a plan/sum in mind may allow you to save while still not living like a hermit. Savings are definitely a must, since it gives a bit of a reassurance as to one’s financial sustainability in the initial period. Panic is a very usual and daily emotion in such a state, but it helps if your partner or family member or friend can keep reminding you of the savings and assure you that you will be alive and fed, even if you make nothing, or close to nothing, initially.

2. Choosing the kind of work while in the firm

This, to a large extent, depends on the structure followed in the firm and whether there is any option for you to be able to choose the kind of work that you would be involved in. In the firm that I was a part of, while work was mostly assigned, one did have some amount of say and control over the kind of matters that one could opt into. The firm attracted clients who were large corporate houses, or businessmen, and the work, that I was initially involved in, was mostly in the nature of writ petitions, or Special Leave Petitions, and some company matters. But I realised that it would be a while before corporate houses would approach me and pay me to go challenge the constitutional vires of certain laws. Therefore, based on the advice of friends and mentors, I tried to involve myself in a wide variety of litigations including matters in the lower tribunals, civil suits, certain minor criminal proceedings etc., so as to get a wide base of exposure. Most people in a firm would agree that the attraction of any particular matter or transaction is also often contingent upon the billing rate and the regularity of payment by the client. However, at this stage of declaring independence, the attraction is for the specific forums where the matter is listed and the nature of the dispute. A word of caution, though: while doing this in the firm your revenue and billing may take a hit. Swallow the embarrassment of the scrutiny that your performance may be subjected to, and remind yourself of the larger picture. A good friend once gave me the following perspective which was helpful: “Take it like being taught important skills and being given essential experience, and all the while being paid for it.”

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Since my practice and work today includes both transactional as well as disputes work, I must share my learning on the transaction front as well. My experience in the firm on the transaction front was with the Projects team, under a truly brilliant partner and with an excellent team. Hence, I have always been very comfortable and confident in contract law, structuring deals and providing legal opinions on various rules and regulations. However, given the work split and team divisions in the firm, I did not have ample exposure to pure company issues relating to the shareholders rights, structuring and restructuring of companies. There seems to be plenty of work relating to the such company issues that are available for young independent lawyers to do. Especially, in the age of start-ups, corporate arrangements, shareholder agreements and restructuring become viable work opportunities. So while I had to pick up these skills along the way, with the help of friends, if you intend to do transactional work, get some experience on these while still with the firm if you can. It may not be as juicy as contractual, or other work, but get into it. You’ll thank me later!

3. Preparing the mind

Ask anyone else who has taken the same path before and they will tell you right out, your life will change once you have left the safe harbours of the firm. Of course there are many types of firms and how you feel will depend on the structure of the firm as well as how long you have spent there. But I never realised until I quit my job, how large a part of my identity was the firm name. Having had the good fortune of being a part of a top–tier law firm with a very recognisable and well–established name, I had always been very confident and proud of introducing myself to people and piggy backing on the firm’s goodwill. I guess it is presumed that since you are with this particular firm, you would be competent as an advocate and a contender. Corporates and business people recognise your firm name and you bask in its reflected glory. But once that identity goes, you are relegated to only being a lawyer. One of many. No matter how many times you tell people that you have your own practice or your own firm, unless you are (a) middle–aged, and (b) a known name (which is unlikely until you are middle–aged), it is often heard by people as “not employed”. One moment you are the hot-shot associate in one of the largest firms in the country and the next, you are just an advocate like the thousands around you. What’s more, the other advocates are more street smart than you and have something you don’t have yet – clients. Prepare yourself to re-invent your identity and image. You will have to build your reputation and goodwill from scratch.

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Simple perks like clean toilets, green tea, a court clerk who actually knows how to get things done, playing a cricket tournament as a part of the firm, running printers, office boys etc., may be sorely missed and the memory of the same could trigger a violent emotional outburst later. For all those who are overworked and stressed from working really hard in a law firm looking at going independent as a way out, to whom it looks like a way out from the crazy hours, working weekends, unreasonable clients etc., you are in for a shock! You will find yourself working just as hard (hopefully and eventually) when your work load increases. There are no longer any concept of weekends, all days merge into each other. Remember, shorter timelines for delivery and lower fees are the only USP that you have to offer in the period while the world figures out that you’re a legal genius and are willing to pay you top dollar.

KEEP THE FAITH

The one major learning I have had since I quit the firm has been that things have the propensity to work themselves out if one is willing to be patient and open to receiving help. Fortunately, as I mentioned earlier, there are plenty of very wonderful advocates and lawyers, who are very supportive towards ‘youngsters’ and happily act as mentors towards young advocates and lawyers. In the period since I quit the firm, the one thing that I am very proud of myself for is that I was able to swallow my pride, quickly get over my past identity and seek guidance from people who had been doing this before, including people who are younger than me. I have picked up invaluable lessons and tips on various issues, such as client handling, self–projection, preparing for a matter keeping in mind the concerned judges and the day on which the matter may be listed, settling upon the fee rates, and the way to remind clients and seek payment of the same. 

I look forward to sharing my experiences and learnings with you on this blog!

Tishampati SenTishampati Sen is an Advocate–on–Record  of the Supreme Court of India. He worked with one of the premier law firms of the country (in corporate transactions as well as dispute resolution) for many years before deciding to take the plunge of independent practice. He appears primarily before the Hon’ble Supreme Court of India, Delhi High Court and the National Consumer Disputes Redressal Commission.

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When can a Civil Suit be disposed of without a trial? Lessons from the commercial courts law

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Framing of issues, as I had observed in my last article here, sets the ball rolling for a conventional trial, that is, the recording of the evidence of both parties. But is a conventional trial mandated in every civil suit? In other words, can a suit be disposed of without parties having to go through this rigmarole? Yes.

For instance, a suit may be disposed of through rejection of the plaint on the ground that, having regard to the pleadings contained in the plaint, the suit is barred by law under Order 7, Rule 11(d) of the Code of Civil Procedure, 1908 (CPC”). Order 7, Rule 11 provides six grounds for rejection of a plaint, some of which are factual in nature and some are procedural. Ground (d) is legal. Procedural grounds relate to curable defects and are not necessarily fatal to the suit. Factual grounds are usually treated as issues which require trial and therefore do not result in rejection of the plaint upon filing of an application invoking such grounds. These are framed as preliminary issues for trial and taken up at the stage of final arguments based on evidence led by the parties. A legal ground however, could result in the rejection of the plaint and even the decree of the suit, before trial. For example, if a defendant in a suit for copyright infringement takes the defense that the subject matter in which copyright allegedly vests, is ineligible for copyright protection since it falls outside the definition of “work” under the Indian Copyright Act, 1957, it may be possible for a court to reject the plaint and decree the suit on that ground alone if it concurs with the defendant.

Another provision which may be invoked to obviate the need for trial is Order 12, Rule 6, which empowers a court to pronounce judgment and decree a suit on the basis of admissions of fact made by a party to the suit in a pleading or otherwise, orally or in writing. This would, however, require such admission to be unequivocal, unambiguous, and material to the claim of the plaintiff or defense of the defendant, as the case may be. If there is scope for more than one plausible interpretation of the fact or further evidence needs to be led in relation to that fact, a court may deem it fit to allow the suit to proceed to trial on the ground that a clear-cut case of admission as required under Order 12, Rule 6 has not been made out by the applicant.

A suit may also be decreed in terms of a settlement arrived at by the parties under Order 23, Rule 3. While a judgement delivered under Order 7, Rule 11 or Order 12, Rule 6 is appealable, a consent decree is not unless the terms were arrived at by fraud or misrepresentation.

Summary judgment under Order XIIIA of the CPC

The CPC as amended by the Commercial Courts Act, 2015, has provided yet another way to decree a suit of a commercial nature without it having to go through the motions of a conventional trial. Order XIIIA of the amended CPC, which I have discussed once earlier in the series, provides a mechanism under which a summary judgement may be delivered in commercial suits if the conditions set out in the provision are satisfied. In a recent judgment of a division bench of the Delhi High Court, I had the privilege of assisting the Court in examining the stage at which Order XIIIA may be invoked, the manner of its invocation and application. I was instructed in this matter by the NCR-based law firm, Sim & San.

The judgement, which I would strongly recommend law students to read, discusses the institution of a suit in great detail with analysis that spans several provisions of the CPC. One of the questions before the Court, perhaps for the first time, was whether it is open for a court to invoke Order XIIIA suo moto in a commercial suit to dismiss it even before issuing summons to the defendant.

In addressing the issue, the Court undertook a detailed examination of the scheme of Order XIIIA, including its placement in the CPC after issuance of summons to the defendant under Order V and before framing of issues in Order XIV. A clear reading of the procedure laid out reveals the following:

  1. An application under Order XIIIA is contemplated to set the ball rolling.
  2. The application may be made at any time after summons has been served on the defendant, but not after issues have been framed in the suit.
  3. The application may be moved by either the plaintiff or the defendant.
  4. What the application must specifically contain has been prescribed in Rule 4 of Order XIIIA.
  5. The respondent to the application must be given a period of 30 days to respond to it.
  6. Apart from the evidence already on record, both parties may lead additional evidence to support their respective contentions.
  7. A date of hearing in the application must be fixed, of which the respondent to the application must be informed.
  8. The necessary grounds on which a summary judgement may be delivered by a court are – (a) that the respondent to the application (either the plaintiff or the defendant) has no real prospect of succeeding in the suit and (b) there is no compelling reason why the suit should not be disposed of before recording of oral evidence.
  9. Rules 6, 7, and 8 set out the various orders that a court may pass in deciding such an application.

Nowhere does Order XIIIA permit a court to invoke and apply this framework suo moto, much less dismiss the suit even before the defendant enters appearance. Apart from the fact that Order XIIIA does not empower a court to do so, such power, if it had been vested, would have been at loggerheads with the adversarial legal system followed by Indian courts. Extracted below are the relevant observations of the Division Bench in this regard:

“23. From the provisions laid out in Order XIIIA, it is evident that the proceedings before Court are adversarial in nature and not inquisitorial. It follows, therefore, that summary judgment under Order XIIIA cannot be rendered in the absence of an adversary and merely upon the inquisition by the Court. The Court is never an adversary in a dispute between parties. Unfortunately, the learned Single Judge has not considered the provisions of Order XIIIA CPC in this light. 24. In view of the discussion above, since no summons had been issued and obviously no application had been filed by the respondents for a summary judgment, the learned Single Judge could not have dismissed the suit invoking the provisions of Order XIIIA CPC.

  1. In view of the discussion above, since no summons had been issued and obviously no application had been filed by the respondents for a summary judgment, the learned Single Judge could not have dismissed the suit invoking the provisions of Order XIIIA CPC.”

 To me, the court’s recognition and reinforcement of the adversarial nature of the Indian legal system, notwithstanding the amendments made to the discovery mechanisms in the CPC in 2002 and through the Commercial Courts Act, 2015, is one of the highlights of the decision. In the near future, we can expect a few more decisions that revolve around provisions introduced through the Commercial Courts Act.

In the next part, I will proceed with a discussion on commencement of and preparation for trial.

Sai Deepak is an engineer-turned-law firm partner-turned-arguing counsel. Sai is the founder of Law Chambers of J. Sai Deepak and appears primarily before the High Court of Delhi and the Supreme Court of India. He is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation, and policy. All opinions expressed here are academic and personal.

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What’s the issue – Understand why and how courts frame issues in civil suits

JSaiDeepak_OnTrialIt helps to occasionally step back and seek the true meaning of an element of procedure. This is true about the framing of issues in a civil suit since the significance of this step in a trial is often taken for granted.

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What is an issue?

The title of Order 14 of the Code of Civil Procedure, 1908 (“CPC”) is “Settlement of Issues and Determination of Suit on Issues of Law or on Issues Agreed Upon”. Clearly, a suit is determined on the basis of issues of law or other issues agreed upon by the parties in a suit. But what is an “issue”? Although the CPC does not define the term, Sub-rule 1 of Rule 1 of Order 14 says that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. In other words, both parties must disagree on a material proposition of fact or law.

The Evidence Act, 1872 also defines “Facts in issue” to mean and include any fact which, either by itself or in connection with other facts, has a bearing on a right or liability asserted or denied in a suit. According to the explanation to this definition, when a court records an issue of fact under the CPC, the fact to be asserted or denied in response to such an issue would also be treated as a fact in issue.

What is a material proposition giving rise to an issue? Sub-rule 2 of Rule 1 states that material propositions are those propositions of law or facts which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute a defence. Simply put, a material proposition is one that advances a party’s case factually or legally.

Sub-rule 3 mandates that each material proposition on which the parties disagree shall be framed as a distinct issue. Could it be said therefore, that propositions of fact or law which do not further a party’s case are not material and therefore ought not to be framed as issues? What consequences follow when a proposition of fact or law, although material, is not framed as an issue despite the parties being at variance with each other?

On this, the Supreme Court has held that the non-framing of an issue does not vitiate the proceedings as long as the pleadings of parties bear out that the issue exists and both parties have led evidence at trial to prove their respective contentions on the issue. In other words, a court can rule on an issue even if it has not been specifically framed, so long as it is material to the determination of the suit.

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The process of framing

How does a court go about framing an issue? Sub-rule 5 of Rule 1 lays down the procedure for this. At the first hearing of a suit, the court shall, after reading the plaint and the written statement, and after examination under Order 10 Rule 2, and after hearing the parties or their counsel, ascertain upon what material propositions of fact or law the parties are at variance, and shall then proceed to frame and record the issues on which the right decision of the case appears to depend.

What does this mean? Simply, that a court has to understand the contentions of the parties from their written pleadings and oral submissions and distill only those propositions of fact and law on which the parties differ and which are “material” for the adjudication of the suit. The question of materiality in Sub-rule 5 has no bearing on the tenability of the contentions of parties on factual or legal propositions. It simply refers to testing an issue for its relevance to the determination of the case.

For instance, in a suit for patent infringement, if there is no dispute between the parties about the plaintiff’s ownership of the patent, there is no point in framing an issue on it. Even though the question of ownership is material, the parties do not disagree on it. Contrast this with a situation where the plaintiff claims to be an assignee of the erstwhile patent owner and the defendant disputes the fact of assignment. The question of ownership or assignment of the patent is material because under the Patents Act, only a patentee or the exclusive licensee may institute a suit for infringement. In other words, the maintainability of the plaintiff’s action is in question. Moreover, since the parties disagree on this material question, the court has to frame an issue on it.

This procedure of framing of an issue needs to be clearly understood. Some people tend to read more into the mere framing of an issue under Order 14 than is warranted. The framing of an issue does not amount to a court taking a position on the contentions of the parties on a material question of fact or law. The court is merely etching the contours of the trial so that the progress of the trial is not waylaid by a slugfest on immaterial issues that have no bearing on the adjudication of the rights and liabilities of the parties. Reading the Supreme Court’s decision in Makhanlal Bangal v. Manas Bhunia (2001), delivered in the context of the Representation of the People Act, 1951, but relevant since the procedure under the CPC applies to the statute, will help clear the fog around the framing of issues.

In the next post, I will deal with the commencement of trial.

Sai Deepak is an engineer-turned-law firm partner-turned-arguing counsel. Sai is the founder of Law Chambers of J. Sai Deepak and appears primarily before the High Court of Delhi and the Supreme Court of India. He is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation, and policy. All opinions expressed here are academic and personal.

We hope you liked this article. You might want to check out our course on Essentials of Procedure And Jurisdiction!

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[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.

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What to tell your clients and when – Learn the essential litigation skill of communicating with clients

An advocate’s career is not all about communicating an argument effectively with a judge or assisting a senior colleague. Building lasting relationships with clients is almost equally important. Since legal education, unfortunately, provides very little help in navigating this part of an advocate’s professional life, we asked a few experienced advocates whether they had any advice for young advocates who are commencing their professional journey. This is what they had to say.

 

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Know all available interim reliefs but be smart about using them

JSaiDeepak_OnTrialIn my previous post here, I discussed a few important terms from the Code of Civil Procedure, 1908 (“CPC”). That discussion alone illustrates that mechanical compliance with procedural law is not enough. Even though they are regularly described as the handmaidens of justice, procedural legislations are also statutes to which rules of statutory interpretation apply. If you are still not convinced, just talk to some colleagues about some of the most basic terms and clauses in the CPC and you will see for yourself the varied and equally plausible interpretations they can give rise to. Imagine how much trouble the creative interpretation of procedure can cause!

Let us take the case of interim applications. These are applications filed as an adjunct to the primary suit proceeding and may result in interlocutory orders, dismissals of suits, or decrees. If you represent the plaintiff, you will file along with the suit, a host of interim applications — starting from the seemingly mundane applications under Order 13 of the CPC seeking exemption from filing original documents to the important ones seeking urgent ex parte interim reliefs under Order 39 pending disposal of the suit. If you represent the defendant, you will move applications along with your written statement objecting most frequently to the maintainability of the suit on the procedural and substantive grounds under Order 7, Rules 10 and 11. Clearly, while interim applications are expected in theory to proceed in parallel to the suit, more often than not they interfere with the progress of the suit and vice versa.

More interim reliefs in the CPC, Horatio, than are dreamt of in your philosophy

Because of practice and convention, a few interim applications are invoked more often than others. But lawyers cannot afford to limit their knowledge to provisions that they frequently encounter. In fact, what better way to impress a court than to invoke a less-trod procedural provision and to explain to the court the manner in which it should be construed and applied? For instance, when sued by a foreign party that has no immovable property in India, it might help to test waters by drawing the court’s attention to Order 25 of the CPC to require the plaintiff to deposit security in court. This will help you understand the plaintiff’s will to fight to the finish since an order for depositing security casts an additional financial burden on the plaintiff besides the court fee and legal costs it has already incurred.

Another example is Order 13-A of the CPC, introduced recently through the Commercial Courts Act, 2015. It allows a defendant to seek a summary judgment in any commercial dispute if it is able to convince the court that the plaintiff is unlikely to succeed at trial and therefore no need for a protracted conventional trial. The Commercial Courts Act, 2015 is replete with such opportunities because it is designed to reduce frivolous litigation and expedite genuine litigation.

Know when to press a procedural button

That said, it is also important to appreciate the distinction between the theoretical availability of a procedural option at any stage and the appropriateness of invoking it from a strategic perspective. For instance, interrogatories under Order 11 of the CPC allow a party to put factual questions or questions relating to documents with a view to elicit answers which are not evasive. While this mechanism has certain benefits on paper, it gives the other side a peek at the interrogating party’s potential strategy at trial, besides the obvious advantage of answering questions without being under the pressure of cross-examination. Similarly, while it may seem routine to lodge a caveat under Section 148A of the CPC with a view to pre-empt the grant of ex parte orders, it is important to consider how such a course of action may be perceived and the adverse inference that a court may draw. Once again, this is a question of strategy and a litigator has to strike a balance between knowledge of a provision and the advisability of its application.

Substantive legislations also provide for a host of interim applications addressing various aspects of the subject-matter they cover. For instance, on February 5, 2016, a full bench of the Delhi High Court delivered a decision on the application of Section 124 of the Trademarks Act, 1999 under which infringement suit proceedings can be stayed subject to the satisfaction of the conditions under the provision. This decision is being considered by a division bench in a batch of appeals where Section 124 has been commonly invoked. I happen to be arguing in one of the appeals and hopefully, shall be able to write on this issue once there is more clarity.

In the next post, I will discuss discovery proceedings.

J.Sai Deepak, an engineer-turned-litigator, is an Associate Partner in the Litigation Team of NCR-based Saikrishna & Associates. Sai is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation and policy. All opinions expressed here are academic and personal.

Written by myLaw

[Video] What traits are necessary for a career in litigation?

Apart from the necessary skills and the knowledge required to build and present a case before a judge, everybody knows that hard work is essential for a successful legal practice in the courts. But what else? Are there any other “x-factor” ingredients that successful litigators have but not many others have? We put this question to some of the brightest young minds working in Delhi’s courts. Watch the videos below to find out what attributes of character are necessary for a career in litigation.

So to sum up, a junior lawyer needs to have (a) the fortitude to handle long unpredictable hours, the financial uncertainty, and the mental and physical exhaustion of the early years in the profession; (b) a love for law and the profession; and (c) the skill to network and bring in work.

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‘Material facts’, ‘material particulars’ and other common CPC terms that are vital for a trial lawyer

JSaiDeepak_OnTrialThere are some terms that are frequently used in the Code of Civil Procedure, 1908 (“CPC”), and it is important to understand them well because the maintainability of a civil action can depend on your understanding. As you know, the court will not address the merits of a dispute until it is prima facie satisfied about the maintainability of an action.

Cause of action, act, and interest

In Orders 1 and 2 of the CPC, where joinder of parties and causes of actions are discussed among other things, one frequently comes across the terms “cause of action”, “interest”, and “act or transaction”. While Order 1 Rule 1 refers to “acts or transactions”, Order 1 Rule 8, which permits the filing of a representative suit, clarifies in its explanation that those claiming to file a representative suit need only have the “same interest”, they need not have the “same cause of action”. What do these terms mean?

An “act or transaction” is different from “cause of action”. The former gives rise to the latter. An actionable cause arises from an act when the act amounts to the infraction of a party’s right. For instance, selling a patented product without consent is an act which gives rise to a cause of action in favour of the patentee. The same act could also give rise to different causes of action in favour of the same right owner or several right owners. In the example above, the sale of a product could result in infringement of a patent as well as a trademark held by the same individual or could infringe several patents held by unrelated parties.

In contrast to Order 1, Rule 1, which deals with joinder of plaintiffs and Order 1, Rule 3 which deals with joinder of defendants, Order 1, Rule 8,which permits filing of a representative suit, uses the term “interest” to increase the scope for joinder of parties beyond what is provided in Rules 1 and 3. The word “interest” has been used to facilitate adjudication of all questions which arise from the same set of acts or transactions. This provision is intended to avoid multiplicity of litigation where all persons are aggrieved by the same acts or transactions. Importantly, this permits one person to represent all other “interested parties”. For instance, if a host of tenants have an issue with an act or acts of the landlord, instead of filing multiple suits or instead of naming all tenants as parties in one suit, one tenant may represent the rest. Therefore, Rule 8 enlarges the scope of joinder of parties so long as there is a communion of “interest” between the parties.

The distinction between “act or transaction”, “cause of action”, and “interest” affects the maintainability of a civil action. The failure to disclose a prima facie cause of action, for instance, would result in the dismissal of a suit at the outset under Order 7, Rule 11. Similarly, to justify arraying a host of parties as defendants, a plaintiff must set out their relationship inter se, along with their nexus to the transaction which has given rise to the cause of action in favour of the plaintiff against all the defendants. Should the plaintiff fail to justify this, his plaint could be assailed for misjoinder of parties or non-joinder of necessary parties.

Now, let us look at “facts” and “particulars”, two terms that occur frequently in relation to pleadings in Order VI.

Facts, material facts, and material particulars

CPCcontentsOrder VI of the CPC, as discussed earlier, deals with pleadings. It uses the terms “material facts” and “particulars” in different places. Are “material facts” and “particulars” the same? The rules of statutory interpretation and even a common sense understanding of the English language tell us that there is a clear difference. “Facts” refer to the broad matrix or the canvas in the backdrop of which a dispute is contested. “Material facts” are those facts which must find mention in a party’s pleadings in order to establish a claim. “Particulars”, on the other hand, refer to the addition of greater detail to the facts.

The absence of material facts prejudices a party’s case at the outset. The absence of material particulars on the other hand, is curable. The Supreme Court has discussed the distinction between material facts and particulars in Udhav Singh v. Madhav Rao Scindia (1975)In this case, the Court held that “all primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts”. The Court also explained the consequences of the absence of material facts and material particulars.

“The distinction between “material facts” and “material particulars” is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil Procedure.

If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.”

These terms not only affect the the maintainability of an action, they also influence a party’s prospects at trial when a party is expected to lead evidence with respect to facts in issue. If such facts have not even been pleaded, the party cannot lead evidence to prove such facts. This would necessitate amendment of pleadings under Order 6, Rule 17, which can be a pretty messy affair.

In the next post, I will discuss interim applications under the CPC and the circumstances in which they may be employed.

 J.Sai Deepak, an engineer-turned-litigator, is an Associate Partner in the Litigation Team of NCR-based Saikrishna & Associates. Sai is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation and policy. All opinions expressed here are academic and personal.c 

Written by myLaw

While drafting opinions and notices, be circumspect and remember the context of a potential litigation

JSaiDeepak_OnTrialSince Orders VI, VII, and VIII of the Code of Civil Procedure, 1908 provide a framework for the drafting of pleadings (which I wrote about previously), it is relatively easier for a litigator to understand the requirements. There is however, no similar codified framework for legal opinions for clients and legal notices and as a result, a litigator naturally falls back on the practice of the chamber or firm that he is working with or for. Drafting legal opinions and notices however, presents a litigator with a wonderful opportunity to showcase and develop acumen, foresight, and a sense of discretion. Needless to say, the ingredients of an opinion and a notice differ and so does the approach.

Understand the situation and the client before you draft an opinion

Generally speaking, a legal opinion addresses a specific query from a client. It presents the client with the options available along with their pros and cons. Since the client must be made aware of the position of the law, the outcome of legal research forms an indispensable component of an opinion but there are sensitive aspects that go beyond an exposition of the law. While one kind of opinion presents a bouquet of options to the client and stops short of recommending the way forward, the other type also strongly recommends a specific option that (in the litigator’s opinion) is the most viable and advisable. To be clear, the ultimate decision is the client’s. The difference only lies in the degree to which the litigator leans on the client and pushes an option. In my opinion, it would help to not subscribe rigidly to either school of thought because the approach must depend on (a) the situation, (b) the client’s awareness of the legal and commercial consequences, and (c) his appetite for taking risk.

For instance, if the client is not a legally savvy individual whose personal liberty is at stake in a criminal case, it is for the litigator to help the client make the choice by uncluttering the options before him. In contrast, if the matter is a civil commercial dispute and the client is a seasoned litigant who merely wants options from which he can choose, the litigator may do just that. This rudimentary illustration is not meant to convey the impression that the stakes in a civil commercial dispute are never as high as those in a criminal matter. Regardless of the situation however, in rendering a written opinion, at all points of time the litigator must be aware that his credibility and credentials are on the line each time.

You are not an oracle

AdvocateInspectingPaperYoung litigators should remember what is at stake because in their eagerness to prove themselves to their seniors and clients, they sometimes stick their necks out to such an extent that they unwittingly offer their heads on a platter to people looking for a convenient scapegoat when things don’t pan out as anticipated. Since reputation is paramount in the legal profession, the litigator must ensure that the client knows that given the several variables involved, no amount of comprehensive legal research and preparation can predict litigation outcomes with certainty. A litigator is not an oracle. Importantly, on issues where there is not enough judicial guidance, no matter how confident the litigator may be in his interpretation of the law or assessment of the situation, it is best to observe a fair degree of caution in the opinion because judicial outcomes can be bizarre no matter how clear the language of the law may be or how open-and-shut a case may seem.

Prepare before you issue notice

A legal notice is the precursor to potential litigation and therefore, a litigator should pay attention to both the content and the language. To borrow from the words of Fali Nariman, notices, like suits for defamation, are often issued in haste and regretted at leisure. Since there is no one statute for legal notices, each notice is implicitly governed by the legislation which applies to a certain act or a transaction to which the notice pertains to. For instance, if the subject-matter of the notice is an alleged contractual violation, the Contract Act and the terms of the contract have an obvious bearing on the ingredients of the notice. Similarly, if the notice alleges an infringement of trademark rights or copyright, the respective legislations and causal facts dictate the elements of the notice.

Before issuing a notice, the litigator should be satisfied that the facts placed before him by the client are reliable and give rise to at least an arguable cause of action because some legislations provide remedies to the recipient of the notice (“noticee”) for groundless threats or allegations. That being said, it would help to keep the language of the notice slightly open-ended because at the time of issuing the notice, one may not always be in possession of complete facts, and the object of the notice may be to test waters and elicit potential defenses from the noticee who is a prospective defendant or even a plaintiff. If the object of the notice is to forewarn the noticee of the existence of a right and thereby lay the foundation for the wilful violation of rights or contractual terms, as the case may be, the language of the notice and the contents of the allegation must clearly identify the scope of the right or the import of the contractual term, although this could result in limiting the scope of pleadings in litigation by estoppel. This clearly calls for a fair bit of due diligence before the notice is issued.

Limit your notice to its role in a potential litigation

Sometimes, in cases involving reputation, the tendency is to resort to puffery or to exaggerate. This is typical of trademark litigation where the trademark owner claims that his products are sold across the length and breadth of the country. In doing so, he inadvertently allows the noticee to initiate legal proceedings at a place of his choosing because the law legitimately permits him to do so. In one such case, a Division Bench of the Delhi High Court held that by claiming in a legal notice that its products were sold across the length and breadth of the country, the defendant had given the plaintiff a legitimate reason to institute a suit in Delhi. Since the law is that the veracity of such a claim by the defendant can only be tested at trial, the Delhi High Court held that the plaint could not be returned under Order VII, Rule 10 for want of territorial jurisdiction. Such examples abound partly because the client may at times insist on capturing his anger, outrage, or position in harsher or more pompous language than necessary in a legal notice. But it is for the litigator to explain to the client that a legal notice forms an integral part of litigation and therefore, it is advisable to keep the language clinical and objective. Emotion too must be used only to the extent that it serves to further the legal merits of the case. Again, this is an exercise in client-counselling, which forms a large part of the litigator’s job.

In the next post, I will proceed to discuss the use of interim reliefs available under the Code of Civil Procedure, 1980.

J.Sai Deepak, an engineer-turned-litigator, is an Associate Partner in the Litigation Team of NCR-based Saikrishna & Associates. Sai is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation and policy. All opinions expressed here are academic and personal.

Written by myLaw