By Protik Da
[retrieved article; some formatting errors might have crept it]
One of the most important weapons in a lawyer’s arsenal is “argument”. The word “argument” engenders visions of debate, the heat and fury of positions attacked and defended strongly, though with words.
That may happen of course, in today’s litigation, but generally the arguments which win cases are not replete with drama, sound or fury. That is because mature reflection goes into a judgment, not a momentary lapse of reason or a sudden storm of emotions.
We prefer to call them “submissions” before the Court since it is consistent with our peculiarly polite way of putting things.
We start submitting before the Court saying “May it please your Lordship” and then pause a moment, as if unless the Hon’ble Judge says “Thank You” (as they ought to and as at least one Hon’ble Judge in my experience used to say) we would simply stop talking, and punctuate every second sentence with a “My Lord” and after the case is decided, if it goes in our client’s favour “Much obliged to your Lordship” or “Grateful to your Lordship” and if it goes against us, “As your Lordship please” or “So be it, My Lord”.
How these things were formulated has many answers, but the most commonly accepted one is that these hark back to the courtly culture of a High Court of the King, where unless the King was pleased to suffer you speak, you had to keep quiet. What you say must please him. A bit like “Her Majesty’s Loyal Opposition”.
A method to madness: Our Learned Friend
We argue before the Hon’ble Court on the basis of facts we have pleaded in our pleadings, and to elucidate the points of law. However there is a method to our madness.
We are not supposed to use such language as is un-parliamentary or would show discourtesy to the Hon’ble Court or the opponent. That is why we always refer to the counsel on the other side as “Our Learned Friend”.
Previously there used to be a distinction in the manner that we addressed learned advocates on record and the learned counsel, but after 1961 and our Advocates Act, there is no such differentia in address.
Even if you have known the opposing counsel as a family friend, even if he is old enough to be your father, even if he knows nothing of the law, he is still your “Learned Friend”.
How to say that the learned friend is wrong
When a learned advocate says that which is not true and he is supposed to know that it is not, the usual formula is not to say “My Lord he is lying”. That would be a worse solecism than the untruth itself.
The almost institutionalized formula we use is “My Learned Friend is not properly instructed”, or if we want to be really censorious, “That submission by my learned Friend is perhaps not borne out by the records”.
When the opposing counsel is submitting things that are not on record, nor pleaded, we usually say “but that is beyond my learned friend’s clients pleadings and is not on records”.
Fraud is never committed by my learned Friend, but only by my learned friend’s client. My learned Friend can never interrupt, but he ought to allow me to finish.
Etiquettes in passion
Sometimes passions run high. Even during those times, court etiquette requires that you never address your opposing counsel directly. You have to route it through the Hon’ble Court.
An example would be when a persistently rude lawyer is always jumping up to comment whenever you pause to breath. You don’t ask him to allow you to finish. You keep on looking at the Hon’ble Judge and say things like “My learned friend ought to allow me to finish” or “I am sure my Learned Friend will have his turn”.
The trick is not to be provoked. A case is won by a cool head, and if you are prone to losing your temper, then the opposing counsel will certainly exploit it by sledging, in this context meaning to keep on making sotto voce comments that you can hear, but may not reach the Court or may reach the Court and you but can be passed off as a comment to the opposing counsel’s own juniors.
The moment you pause to reply to such off the cuff remarks, you lose the thread of your thoughts and the skein of your submissions.
Reminding oneself, not the court
Sometimes, a case can spread over several days, with a lot of time in between. It is not always possible for the Hon’ble Judge hearing the case to remember everything. Yet the Hon’ble Court is presumed to have “total recall”. You cannot be honest and start submissions by saying “To remind your Lordship:. The usual phrase is “Just to recapitulate for my own benefit”.
Very often you will find that the Hon’ble Court does not understand a point of law that you have been arguing for a long time.
You cannot show your irritation or say anything that would imply that it is the Court that does not understand. You have to say “I am afraid/I am sorry that/Perhaps I could not make myself clear. It is my fault. May I rephrase myself.”
Much-talking Judge is like an ill-tuned cymbal
Even though quite a long time back Francis Bacon, then Lord Chancellor, commented about garrulous Judges that a much-talking Judge is like an ill-tuned cymbal, in real life they are the norm.
Many a Judge will not let you formulate a point of law, finish a thought or a statement without asking a hundred questions. It is neither proper nor profitable to brush the question aside.
If you are senior enough, you get away with “I will come back to that” or “My Lord I will answer that directly” or ” I will satisfy your Lordship” and then go on with what you were saying; mostly though, you will have to answer the Court.
At those times, you must add a rider. “I must answer your Lordship’s query, but your Lordship will grant me the indulgence to come back to my principal submissions thereafter”.
Courtesy, detachment and finesse
The reasons why we use these euphemisms and courtly phrases, rather than how they came into being are far simpler. Since we are required to submit to the Court and seek an order from it, and since the causes we represent are not our own, we must show courtesy, detachment and finesse.
These small things impress the Hon’ble Court, avoid enmity and passion play, and make our points with the greatest emphasis. We shall revisit these precepts in the next part when we discuss the basic structure of an argument in law.
Questions for Protik Da? Please leave them as comments below. We’ll request him to answer them when he finds the time.
Mr. Protik Prokash Banerji, popularly called Protik da by law students is an advocate at the Kolkata HC. Interning at his chambers is an experience of a life time. People who learn drafting and oratory skills from him swear by the excellent teacher he is. He talks about movies and literature as authoritatively as he talks on law and wrote on such subjects for the Economic Times in 1994-1995. Presently Protik Da is the Junior Standing Counsel, Govt of West Bengal, HC at Calcutta.