Continued self-education is indispensable to honing the skills of lawyers in emerging areas of practice and to their social relevance in a changing world
The Indian legal profession has grown over a short period of less than 50 years to become the world’s largest and most influential in the governance of the country. At the same time, it reflects the diversity of Indian society, its caste structure, inequalities and urbanised delivery of services depending upon the market forces. Being a private monopoly, the profession is organised like a pyramid in which the top 20 per cent command 80 per cent of paying work, the middle 30 per cent managing to survive by catering to the needs of the middle class and government litigation, while the bottom 50 per cent barely survive with legal aid cases and cases managed through undesirable and exploitative methods! Given the poor quality of legal education in the majority of the so-called law colleges (over a thousand of them working in small towns and panchayats without infrastructure and competent faculty), what happened with uncontrolled expansion was the overcrowding of ill-equipped lawyers in the bottom 50 per cent of the profession fighting for a piece of the cake. In the process, being too numerous, the middle and the bottom segments got elected to professional bodies which controlled the management of the entire profession. The so-called leaders of the profession who have abundant work, unlimited money, respect and influence did not bother to look into what was happening to the profession and allowed it to go its way — of inefficiency, strikes, boycotts and public ridicule. This is the tragedy of the Indian Bar today which had otherwise a noble tradition of being in the forefront of the freedom struggle and maintaining the rule of law and civil liberties even in difficult times.
In the midst of such drift and mediocrity, the world around including the legal environment changed and opportunities for legally trained persons grew phenomenally, thanks to globalisation, technological revolution and economic liberalisation. The emergence of the National Law School movement and the Five-Year Integrated LL.B. programme attracted talented students who stormed into the legal market making a dent, though small, in the monopoly of the top 20 per cent. It gave hope to the rest of the middle and bottom segments of the professional pyramid that by playing the game with some professional skills, they too could penetrate the higher ranks which were largely reserved for the kith and kin of successful lawyers and judges so far. This is the context in which continuing legal education (CLE) is to be appreciated for professional development and better delivery of legal services.
There is as yet no organised system of CLE in the country. In the 1970s and 1980s, when the Bar Council of India Trust organised few CLE programmes, there were enthusiastic responses from all segments of the profession. Advocates paid the cost, suspended their practice and joined the residential courses around areas like criminal advocacy, constitutional litigation, matrimonial adjudication, commercial law practice, etc. The idea of specialisation in legal practice was well received and professionalism in management of client services appreciated. The issue of professional ethics on which advocates had no training whatsoever came to be acknowledged. More importantly, the CLE programmes inculcated a sense of public service as the hallmark of the profession and advocates sought to expand the public-interest litigation jurisdiction of courts to enlarge access to justice for the common man. In short, even a casual attempt to offer CLE has ignited the imagination of a large number of advocates on the relevance and usefulness of continuing education to hone their skills in emerging areas of legal practice and maintain their role as social engineers in the process of development. Over the years, this awareness has spread among the younger members of the profession though, unfortunately, there was no one to offer the CLE programmes relevant to the changing demands of the legal market.
CLE is also a measure of the accountability of the profession. The days of the general practitioner have gone and specialists have entered the scene. The competence of the legal practitioner is critical for clients and any dilution in the quality of services rendered is bound to be counter productive. CLE is the major instrument of all professions to ensure minimum competence in the delivery of services. It enhances professionalism, accountability and public respect for the profession. In short, CLE is indispensable for maintaining professional competence and its social relevance.
Competence or quality is the product of knowledge, attitudes, values, skills and ability to apply them for professional tasks. Legal education in colleges hardly teaches anything more than knowledge and that too inadequately. Some skills are acquired in early days of practice through observation and participation. CLE alone can possibly give the rest to provide competence to a young lawyer for whom professional bodies at present have no alternatives to offer. In the past, a year-long apprenticeship and a bar examination hopefully provided some insight into abilities, values and attitudes. They have been abolished and the new entrants are left to their fate!
What makes a professional
What are the elements of professional attitude? It has to do with sensitivity to professional responsibility, due diligence in handling clients’ affairs, loyalty to the profession, orderliness in management of tasks and commitment to quality in all circumstances. These are not inherited but learnt and cultivated. Continued self-education is the attribute of a professional.
Values too are learnt and cultivated by professionals by deliberate application of mind. Competent legal practitioners who have won public esteem have a keen sense of personal and professional ethics. Competence and its continued maintenance is itself a professional value. Integrity and honesty always pay in a profession. Respect for the rule of law is another value which no professional can ignore at any time. Obligation to serve the cause of justice or fight injustice is an abiding value of a legal practitioner. CLE can make value education a central focus of its programmes and help new entrants to the profession be aware of the role of values for professional competence. It is in the sphere of upgradation of knowledge particularly in emerging areas of legal practice where CLE can help the most. Knowledge is not just an awareness of rules; it includes comprehension, application, analysis, synthesis and evaluation. Good law colleges attempt to teach through clinical methods, application of knowledge to solve problems through analysis, synthesis and evaluation. In India such colleges are few. There are very few teachers trained in clinical teaching methods. Therefore, there is a tremendous vacuum in professional training which is waiting to be addressed through CLE.
Finally, professional competence in the field of law is the outcome of skilled application of knowledge in which proper skills are decisive to the outcome. These include interviewing and counselling skills, negotiation and mediation skills, research and writing skills, communication and advocacy skills, drafting skills, fact gathering and articulation skills, time and stress management skills, etc. all of which can be acquired through supervised practice supported by guided theoretical learning. CLE is the best mechanism to learn skills particularly in the context of the explosion in knowledge and technology.
For the first time in the history of legal education, the National Law School of India University, Bangalore, has established a Chair on Continuing Legal Education with support from the International Bar Association, the Ford Foundation and the Menon Institute of Legal Advocacy Training. A series of CLE programmes for lawyers and law teachers have been announced to help professional development and to enable law schools to set up CLE centres for institutionalising CLE at all levels of the system. While judges have their training academies in every State, the legal profession ended up with no provision for continuing education without which it is in danger of losing its competence to serve the complex demands of a developing society. This is what the Bangalore initiative on CLE is addressing though in a small way for the legal profession in India. Hopefully, in the next two or three years, a network of CLE institutions will come up around the country which will pave the way for enhancing the professional competence of advocates and thereby the quality of legal services in the country.
(Professor Menon was the Founder Director of the National Law Schools at Bangalore and Kolkata, and of the National Judicial Academy at Bhopal.)
Rajiv Gandhi Advocates Training Scheme was inaugurated in the National Law University Delhi today. Minister of Law & Justice Dr. M. Veerappa Moily, Chief Minister of Delhi Smt. Sheila Dikshit and the Chief Justice of Delhi High Court and Chancellor of National Law University Delhi Mr. Justice Dipak Misra were present on the occasion.
Presiding over the function, the Minister of Law & Justice said “Globalization of law includes global connections, global interdependence, global information, global finance, global governance and global rights. Legal profession in the 21st Century must focus on the rapid changes in legal education and the legal profession that are taking place throughout the world, the phenomenon that is often referred to as the globalization of legal profession.”
The primary purpose behind the development of the lawyers’ training program is to standardize the training of future generations of lawyers in the globalization era. Achieving this goal is critical to ensure that lawyers’ attain a minimum level of legal knowledge and advocacy skills before they take on the responsibilities associated with representing clients before the courts. Additionally, the training plan has been designed to increase public confidence in the legal system by setting clear ethical standards for the practice of law and training future lawyers about their ethical obligations to society and the role they play in promoting the integrity of the legal system as a whole. Training programme helps in enhancing following skills of the advocate trainees.
Builds better communications skills.
Develops hidden talent.
Ensures consistent quality.
Provides greater focus.
Produces more effective/productive efforts.
Clarifies the concept of marketing as a business process.
With respect to the roles of the justice system, the legal profession and the people in this Herculean effort at transformation, the justice system is expected to operate so as to eliminate injustice from society. The Article 39-A of the Constitution of India mandates that the state shall provide “by suitable legislation or schemes or in any other way” to ensure that opportunities for seeking justice are not denied to any citizen “by reason economic or other disabilities”. It imposes a duty on the State to secure that the operation of the legal system promotes justice, on a basis of equal opportunity and in particular State shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Access to Justice is recognised as a fundamental right. An effective justice delivery system requires that (i) justice be made available at the door step of people and (ii) we should have talented, dedicated and qualified legal professionals who serve at the grass root level. So far as providing justice at the doorstep is concerned, we have courts at the District and Taluka levels. Now, we also have ‘Gram Nyayalaya’ at village and intermediate level. There is no dearth of talented and dedicated law graduates at grass root level but there is no motivation and encouragement for them to come forward and stay in legal profession at district, Taluka and village level. Result is, despite their ability most of these young lawyers are not getting proper opportunity and exposure in the profession. At the end, they become brief less lawyer. There has been a far reaching cry to give proper professional training to the Advocates so that they not only become good lawyers but also are competent to compete with high profile law firms.
The Supreme Court in the case of State of Maharashtra Vs. Manubhai Pragaji Vashi, (1995) 5SCC 730 has observed that the need for a continuing and well-organised legal education, is absolutely essential reckoning the new trends in the world order, to need the ever-growing challenges. The scheme envisages selection of 10 young practicing advocates from each state of India, every year for being imparted professional training.
A preference shall be given to those candidates who belong to SC/ST, OBC, Woman and Physically Handicap. The National Law University, Delhi will implement the scheme at the national level by providing the Advocates one month training in its campus and the Advocates will be placed with a Senior/leading Advocate at their respective places for one month training.
This training programme will cover:
ADR Mechanism for settlement of Disputes;
Plea bargaining and its importance;
How to use Information Technology and Communication in court proceedings? Advantages of these tools in court proceedings;
Art of cross – examination;
How to present the case and argument before the Court?
Provisions contained in “Hague Convention on the Service abroad of Judicial & Extra Judicial Documents in Civil and Commercial Matters” – Mechanism of service of summons and other judicial documents issued by Indian court to persons residing in foreign territory and vice versa.
Effect and advantages of having Mutual Legal Assistance Treaty in civil and commercial matter; and in criminal matter, Extradition Treaty and Treaty on transfer of convicted persons with foreign countries.
Intellectual Property laws including ‘Competition Law’ – Their use, importance and relevance in modern day business;
Cyber Laws – How to deal with cyber crimes and related issues;
Specific legislations useful in day to day life viz. the Domestic Violence Act, 2005, the Protection of Child Rights Act, 2005, The Dowry Prohibition Act, 1963, Gram Nyayalaya Act, 2009 etc.
- Recent Initiatives of the Government for Justice Delivery and Legal Reforms (indialawyers.wordpress.com)
- Meeting of Consultative Committee on Law & Justice Discussions on E-Courts, Justice Delivery System, Law Commission Report (indialawyers.wordpress.com)
- Government Approves Setting up of National Mission for Justice Delivery and Legal Reforms (indialawyers.wordpress.com)
- Lawyers can practise in all courts soon: Veerappa Moily (indialawyers.wordpress.com)
- Looking for knights in black robes (indialawyers.wordpress.com)
- Lawyers can practise in all courts soon: Veerappa Moily (thehindu.com)
N.R. Madhava Menon IN THE HINDU
The challenges before legal education reform in India are many.
At a National Consultation organised by the Law Ministry during May 1-2, 2010, Prime Minister Manmohan Singh described legal education in India as a “sea of institutionalised mediocrity with a few islands of excellence,” and stressed the need for dramatic reform in terms of its scope and quality. He wanted the legal education system to be sensitive to the needs of the marginalised sections of society, particularly in the context of globalisation and the retreat of the state from some of its traditional roles. He felt that in future, domestic legal mechanisms will increasingly interact with both international and foreign legal systems and that the law schools should prepare themselves to face consequent challenges. The reforms he suggested included multi-disciplinarity in legal studies, flexible curricula, improved service conditions for law teachers, continuing education programmes for legal professionals and placement-internship programmes for all students.
This subject has indeed received the attention of several expert committees recently, including the National Knowledge Commission and the Committee on Renovation and Rejuvenation of Higher Education (the Yash Pal Committee). These commissions and committees found three fundamental drawbacks in the objects, structure and content of legal education as it is being imparted in nearly a thousand law colleges in India, most of them functioning in the private sector.
First of all, the objects of legal education in the changing socio-economic context are neither clear nor prioritised. The Advocates Act and the Bar Councils seem to think that the only object of legal education is to produce lawyers to practise in courts. Today, people seek legal education for a variety of purposes: to meet the demands of trade, commerce, industry, governance and international relations. The practising profession itself is getting increasingly internationalised, warranting the study of other legal systems and practices. These multiple goals raise questions of content, structure and regulation.
Currently, the content of legal education is considered to be a function of the regulatory bodies (read Bar Council of India) and the universities are obliged to follow it. This has adversely affected curriculum development in terms of serving the multiple objects of legal education and inhibited innovation and experimentation that are essential for academic and professional excellence. In a sense, it has alienated law schools from its essential function of legal research and development.
Law grows when it engages with society and interacts with other branches of knowledge. Engagement with social problems and movements make legal education relevant and contextual. For this to happen, a liberal, holistic and decentralised approach to curriculum planning and development is necessary, for which each university teaching law should have the primary responsibility. This was the essence of the National Knowledge Commission’s and the Yash Pal Committee’s recommendations. In other words, according to the expert committees the future of legal education will depend on how the role of universities (law schools) is conceived on the one hand, and on what the goals and objects of legal education are determined to be, on the other. Whichever way one looks at the situation, one thing is clear: the existing regulatory mechanism under the Advocates Act, 1961 is far too weak and inadequate to chart the future course of legal education.
Access and equity are important considerations in higher education, and this is particularly so in law education. The Bar Council’s efforts over the last 50 years did succeed in making the so-called legal education accessible to all sections and keeping the costs low for students. But in the process, quality was neglected or allowed to be diluted. Many universities practically avoided their responsibilities, and put the entire blame on the Bar Council. An attempt was made at the instance of the Bar Council to improve quality by introducing the five-year integrated LL.B. programme, and by establishing a series of autonomous National Law Schools. But they have remained islands “in a sea of mediocrity” — as the Prime Minister described it.
The challenge before legal educators and the regulators of higher education today is two-fold.
First, how to promote competitive excellence in a global context in the few National Law Schools and others of its kind that are maintaining some degree of quality in education. Secondly, how to take the mediocre institutions — which are too many in number — to improve their performance towards achieving some degree of professionalism and academic excellence in the shortest possible time.
The major problems cited in this regard are inadequacy of resources including lack of competent teachers in adequate numbers. Given that most of these institutions are privately managed and have very little investment and faculty resources, it is not possible to transform them unless the managements themselves mobilise the finances. Others that are in the government sector, including university departments, can prepare plans for development and seek funds from governments, Central and State. There exists a case to increase tuition fees and development charges while making the institutions provide better teaching and learning facilities to consumers of education.
Finally, if quality is to be improved the key institutions for regulating legal education should be the universities themselves. Let there be competition among universities to deliver quality educational services. The external regulator’s function should be limited to setting goals, setting minimum standards, and facilitating the exercise of academic autonomy by individual institutions. In this regard, the proposal of the Knowledge Commission for a multi-member single regulator involving all stakeholders is an excellent idea that deserves attention. The shortage of teachers can be addressed partly through a flexible approach in faculty composition: this may include more visiting and adjunct teachers, partnership arrangements, contractual engagement of professionals and so on. There could also be an organised plan to prepare teachers by selected institutions with special support from government.
It will take a decade or more to create a research environment in the existing law schools, particularly for cutting-edge research that contribute to law reform and development. Meanwhile, the recommendation of the Knowledge Commission to set up a few advanced research centres that can attract available talent to plan and develop legal research is worthy of immediate attention. This is where the Central government should invest, as it did in the field of scientific and industrial research in the early 1960s and 1970s. They can be networked with the law schools of the region: this will be of mutual advantage.
The initiative on Second Generation Reforms developed by the Union Law Ministry (2010) and the Task Force on Legal Education constituted by the Union Ministry of Human Resource Development should work together to develop a plan of action to push forward the agenda of legal education reforms. This should serve not only the needs of the practising profession but also the emerging demands of society and government for law trained persons. The Judicial Academies training judges should tie up with selected law schools of the region to enrich the content and process of judicial education and training, while providing opportunities to law schools to understand and inform themselves of the problems and challenges of the administration of justice. Bar Councils should set up a chain of continuing legal education centres, similarly tying up with law schools for mutual benefit. What the nation needs now is an organised movement involving legal educators, lawyers and judges, not only to learn the practice of law but to transform law and legal institutions to maximise justice in society and to put legal education at the centre for better governance under democracy and rule of law.
(Professor N.R. Madhava Menon is founder-director of the National Law School of India in Bangalore, the National University of Juridical Sciences in Kolkata and the National Judicial Academy in Bhopal.)
PM’s Inaugural Address at the Conference of National Consultation for Second Generation Reforms in Legal Education
The Prime Minister, Dr. Manmohan Singh, inaugurated the Conference of National Consultation for Second Generation Reforms in Legal Education in New Delhi today. Following is the text of the Prime Minister’s address on the occasion:
“I am very happy to be in your midst today in this national conference dealing with reforms in legal education system. The importance of your conference cannot be over emphasized. If we are to have a society as we must be where the common man and common woman gets speedy and affordable access to justice, if we are to have in our country the turbulence in effect of the Rule of Law, if we are to have an economic environment where contracts are easily enforceable, then we must ensure that our law teachers, practicing advocates, corporate legal luminaries, legal advisors, judicial officers and legal facilitators are indeed men and women of very high intellectual caliber. And this is possible only if there is dramatic reform and improvement in the scope and quality of our legal education system. I therefore congratulate my colleague the Law Minister and his team for organizing this important conference as a part of the initiative to improve the legal education system in our country.
Over half a century ago, the then President of India, Dr. Radhakrishnan stated– and he himself was a great teacher—lamented that “our colleges of law do not hold a place of high esteem either at home or abroad, nor has law become an area of profound scholarship and enlightened research”. It’s no doubt we have travelled a long distance since that time. But we must admit and have to ask honestly ourselves whether we have significantly altered the landscape of our legal education system. We do have a small number of dynamic and outstanding law schools, but I am afraid they remain islands of excellence amidst a sea of institutionalized mediocrity. We are not even marginally nearer to profound scholarship and enlightened research in law. As we and we must introspect honestly, we must sadly accept that Dr Radhakrishnan’s powerful yet poignant words may not be amenable to any radical restatement even today.
I believe your deliberations in this conference should be tempered with the realization that most of the problems as also the panaceas in the field of legal education are well known. There is a wealth of literature and ideas already available on the subject, including studies by the Law Commission, the recommendations of the National Knowledge Commission, the report of the Bar Council and learned articles by academics. Not any less important is the valuable experience of eminent and experienced practitioners who have tried and tested abstract legal propositions in real life situations. We need to focus on utilizing these rich, vast and diverse resources for imparting legal education in our country.
Reforming and improving our legal education system to meet the needs of our growing economy and a knowledge society that we wish to become requires action on many fronts. There is the issue of making our legal curricula multidisciplinary, creative and flexible. It is only relatively recently that areas like ethics in the judicial profession, clinical legal education, alternative dispute resolution, rights of refugees, rights of prisoners and women and child rights, are being given their legitimate due in the legal curriculum. There is an urgent need to integrate these and other areas into a national, uniform course module with fewer exceptions and fewer divergences.
There is also the serious problem of law teachers – a vexed problem of numbers, quality and diversity. We need good law teachers to shape and nurture young legal minds. The sad reality is that when we look for experts to head new law schools and the new faculties, we have precious few to choose from. There is an obvious need to provide more uniform but calibrated and better salaries, accompanied by considerably improved terms of service for our teachers.
Our law libraries are too few and woefully stocked. We must provide the latest tools of research to our students, scholars and practitioners. Law schools should be linked with the best sources of knowledge globally.
Internship and post degree placements must also be regulated to match applicants and recipients appropriately. Today, some fortunate students who have the right contacts have the luxury of plenty in terms of options while several of their talented but less resourceful colleagues go a begging for placements.
We must dream if we want to make progress of having a world class educational system. Law universities should be a part of our national ambition. I have a vision that the new South Asian University soon to be established by this Government with other South Asian countries would ultimately expand to include an outstanding law faculty with an eminent global faculty. Our new five year Law Schools across India have shown that we are second to none when we make up our mind but we have to spread this excellence for ensuring inclusive legal education.
Our legal education system should be particularly sensitive to the needs of the marginalized sections of our society like women, Scheduled Castes and Scheduled Tribes and the poor. Not only should these sections of society be adequately represented among law students, the legal education we impart should inculcate sensitivity towards the special needs of the under-privileged sections of our community.
One expects even experienced and established legal luminaries, judges and other law professionals to submit to periodic and continuing legal education programmes without standing on pomp or seniority. After all, this is common place in other advanced countries of the world. There are revolutionary changes taking place in information systems, communications and technology which require corresponding changes in our legal system. Highly specialized areas of law such as intellectual property law, corporate law, cyber law, cyber crimes, human rights law and international commercial law require specialized training and skills that should be imparted by our law schools. The opening of trade and capital markets as a result of the processes of globalization and the retreat of the State from some of its traditional roles have raised new legal issues concerning the way in which the poor and marginalized sections can protect themselves from the adverse effects of these changes. The very nature of law, of legal institutions and the practice of law are in the throes of a paradigm shift.
One of the most challenging tasks in legal education in India is to strike a proper balance to ensure that our students are taught a fair mix of courses that give them knowledge and training in Indian law, but at the same time prepare them for facing the challenges of globalization, where domestic legal mechanisms interact with both international and foreign legal systems. This interaction is going to deepen in the years to come and our law schools must prepare themselves to face this challenge. Let me conclude by wishing the deliberations of this conference all success. I sincerely hope the conference will result in actionable agenda and recommendations to improve the legal education system in our country. I also wish all of you the very best in your professional and personal lives.”
Call for Papers – CONSILIENCE – ANNUAL CONFERENCE ORGANISED BY THE LAW AND TECHNOLOGY COMMITTEE OF THE STUDENT BAR ASSOCIATION- NATIONAL LAW SCHOOL BANGALORE
Consilience is an annual conference organised by the Law and Technology Committee of the Student Bar Association, at the National Law School of India University, Bangalore, India. It is devoted to the field of technology law and has sought to inspire academic debates and tackle contentious issues of contemporary relevance. Past editions of the conference have brought together luminaries like Mr. Montek Singh Ahluwalia (Deputy Chairman, Planning Commission), Mr. R. Ramraj (MD and CEO, Sify Technologies Ltd.,), Mr. Richard Stallman (Founder – GNU Project), Hon’ble Justice Yatindra Singh (Allahabad High Court, India), Mr. Rahul Matthan (Partner, Trilegal ) and have discussed issues relating to “Legal Aspects of Business Process Outsourcing”, “Biotechnology and the Law” and “Free and Open Source Software”.
This year, the Law and Technology Committee in association with the Centre for Internet and Society would be organizing Consilience-2010 with the topic for discussion as “Internet Intermediary Liability in India”. This year’s edition of Consilience seeks to not only bring leading academicians to debate upon the topic of contention but also looks to increase and encourage student participation.
In this regard, we invite abstracts related to the topic tracks of discussion as enumerated in the concept note. The abstracts must be roughly 500 words and should clearly identify the issue they are dealing with, and the argument that they seek to put forward and should strictly conform to the guidelines below. The abstracts must be footnoted and the conference follows a very strict policy on plagiarism and runs all submissions through plagiarism detection software. Selected abstracts will be notified on January 25th and the authors are required to submit a final paper by March 5th. Authors are required to note that the organizers reserve the right to reject the final paper even after acceptance of the abstract if it is felt that the final paper is unsuitable to be presented, being off topic, too different from the abstract, containing plagiarized material, of low quality or any other such reason. Only submissions made through our webstie will be accepted.
Pls Visit : http://www.consilience.in
Start here to submit a paper to this conference.
From Times Online
March 3, 2008
The written side of litigation may not be as glamorous but it’s where much of the war is fought, says Catherine Newman, QC
Catherine Newman, barrister
Interview by Alex Aldridge
Become a better lawyer: running a case, doing a deal, moving in-house and other tips from the top
Some people love to seem so clever. When I was younger I used to think that I was too stupid to understand those documents where you have to read a paragraph several times in order to understand it. But gradually I realised that the problem was that some people simply have a drafting style that is far too complex. Look at the speeches of the great House of Lords judges of our day: beautifully written but in plain, clear English.
Ambiguity is what gets lawyers into trouble. When writing a formal opinion one is able to think about exactly how to phrase something. But with advice increasingly being given more casually, there’s much greater scope for confusion to creep in. The immediacy of email means there’s an awful temptation to dispense with the polishing stage — and in litigation a little bit of polishing can make a huge difference.
Try not to make your missives too stinging. Many moons ago I was asked to draft an opinion explaining to a country solicitor why a client couldn’t extract money from a company that the court had ordered her to hand over to the other side. Of course, it was glaringly obvious that such a course of action would have been completely improper and likely to result in further litigation. Being very young, I may well have used that term “improper”. I certainly didn’t pull my punches. The response, a copy of which I still have to this day, begins: “I have received a stinging missive from Miss Chariots of Fire, who is fortunate that she does not have to make a living by the exercise of personal charm . . .”
Gradually you learn to code your language in more outwardly acceptable terms. A Chancery favourite is “utterly misconceived.” I use that a lot. Or, “We’re finding it rather difficult to understand the point you’re making.” If you receive that one, you can be sure that the other side thinks you’re talking complete bollocks.
A large part of the war occurs in the correspondence. I give the same level of consideration to drafting letters to the other side as I do to writing formal opinions. “Dear Judge” letters, I call them, because even if they’re written before litigation has commenced, they should always be drafted with the eyes of the judge in mind. They’re your opportunity to show not only that your client has behaved reasonably and sensibly from the beginning, but — and this is crucial for getting your costs if you win — that you’ve grasped the essential legal issues early on and have stuck to them.
Develop a flexible, anonymous style. If people spot your hand in the drafting, they may use it against you. There was an arbitration where we were against a solicitor based in Kazakhstan, who wrote the most mind-bogglingly rude letters — always unwise as judges hate correspondence that unnecessarily raises the temperature. This guy’s downfall was his inability to resist using certain pet phrases over and again. His client would never go to a meeting; he’d go to “a high level meeting with senior personnel” — that sort of stuff. It didn’t take long to spot the documents in which he’d had a hand.
Do your best to assist the court. Sitting part-time as a judge in Guernsey and as a recorder in the Crown Court, I’m well aware that case files often arrive on a judge’s desk at 4.15 in the afternoon on the day before a hearing begins. I always try to provide a thumbnail picture of my client’s arguments early on in my skeleton argument, just in case whoever is trying the case hasn’t managed to plough through everything I’ve written.
Other barristers are rather more cynical. I certainly know of two or three members of the profession who, when they don’t have a strong case, deliberately obfuscate by making their skeletons as long-winded and confusing as possible in the hope that the judge won’t have time to untangle the various arguments.
The written aspect of the job may not be as glamorous as the oral side of things. But it’s something that we commercial barristers take enormous pride in. I remember being asked as a very junior barrister to prepare a note on a particular section of an act of parliament that the court was construing. To my absolute delight, Lord Hoffmann (then a first instance judge), included a very brief acknowledgment of my “helpful” note in his judgment. Now that was real praise.
Catherine Newman, QC, is a barrister at Maitland Chambers