The art of representation is nothing but art
of communication – or rather the art of persuasion. When a counsel opens
his case, he says : May it please, Your Honour. What he really means is
: May it persuade Your Honour. It is not enought that you know you client's
case well or you feel it is just and right. You must be able to convince
the deciding authority that it is so.
Therefore, the fundamental of the art
of representation is that you must know thoroughly well the facts and
law relating to your case. More than law, you must first marshal the facts
and present them in the best light. When I was a young and enthusiastic
but immature counsel, I used to jump to case law. Mr. H. M. Jhala an excellent
member of the Tribunal once told me : "Young man, just take care of the
facts and Law will take care of itself". I have never forgotten this priceless
piece of advice !
It is therefore necessary to follow certain
rules while making a representation on behalf your client before any deciding
authority. I call them Ten Commandments.
-
I am the Appellate Authority ;
thy God. Thou shalt have no other Gods before me
If you regard the courts as Temples of Justice then you must regard
the judge as the God in so far as the matter before him is concerned.
You must have belief that he will do justice. The following are a
few hints how to please the God or Goddess of Justice.
-
Follow the Bench. Remember that
you are there to convey and convince and not to impress. It is
very necessary that you watch carefully the reaction, trend of
and questioning by the Bench. Do not go on with your own arguments
unaware of the reactions of the Bench.
-
Do not argue – explain. Remember
that the judge has a legal background and a certain level of understanding.
Many a time, the Bench questions you to elicit more facts. Instead
of arguing with the Bench try to answer their questions. Hear
the Judge fully before replying. The proper attitude is one of
"Let's reason together".
-
It is true that sometimes the
Bench asks totally irrelevant and irritating questions. But learn
to be polite and smiling. Remember the same advice from the Bible.
"Answer not a XXXX according to his
folly; lest thou also be like unto him. Answer a XXXX according to
his folly, lest he be wise in his own conceit." Be courteous. Avoid
temptation to retort. Samuel Johnson once told a judge : "Sir, I have
found you an argument, but I'm not obliged to find you an understanding".
Barriester Jeena could not remember a particular case Law, so the
judge remarked: Mr. Jeena, you seem to be forgetting the law." Barrister
Jeena promptly retorted : "Your Lordship will benefit by remembering
the law which I have forgotten".
A lawyer stood with his back to the
Judge — exasperated at judge’s ignorance. The judge angrily asked
him. "Are you showing contempt to the Court ? The lawyer replied "
No, Your Honour I’m trying to hide it".
Remember, such retorts may amuse
you — not the judge!
-
Thou shalt move Heaven & Earth
(and water also!) to place every possible view point in favour of
your client
It is your duty to your client that you must grasp all the facts
and all the case law in his favour. This requires a thorough study.
Always explain the facts with reference
to your paper book to be filed in time and properly indexed and certified.
State the fact precisely, preferably in a chronological order and
draw attention of the Bench to the relevant pages of the Paper book
— particularly those containing evidence.
Only after explaining the facts,
go to the orders of the lower authorities and then deal with their
points and arguments one by one. Do not criticise or ridicule the
A. O. or the CIT(A). Let the judge see the absurdity, if any, himself.
If you still feel that the Bench
needs a little push to tilt the balance in your favour, then go for
case law. If you are arguing before the CIT(A) or Tribunal refer only
to the relevant portion. If you are arguing before the High Court,
it is advisable to read the entire decision.
But in doing all this, be brief.
It is not without significance that the file or instruction given
to a Lawyer is called a "Brief" if you are fully prepared, you can
be brief. Woodraw Wilson was once asked. "How long do you prepare
for you ten minutes speech." He replied: "Two weeks; and he added;
"For one hour speech, I take one week. And for a two hour speech ....
I’m ready now !"
As Charles Colten reminded us : "When
you have nothing to say, say nothing
-
Thou shall not quote case
law in vain:
As I have said repeatedly, do not jump to the case law, unless
it is absolutely necessary. Try to argue your case on first principles,
(except of course covered matters). But even while quoting case law
state your propositions first and then quote only the relevant case
law. If there is a decision of the Supreme Court or of the jurisdictional
High Court, then quote only those decisions and just hand over a list
of other decisions on which you wish to rely. It is always advisable
to prepare a paper book containing case law on which you wish to rely.
It helps the judge quite a lot as he does not have to grope for it.
Do not quote case law where either there is no discussion or the reasoning
does not appeal to you. As one Judge acidly remarked "My respect for
judicial precedents knows certain territorial bounds!" Cite only such
case law which will drive home the propositions you are making.
-
Do not remember the Sabbath day
"remember the judgement day!
There is no substitute for hard work. But once you have prepared
your case your goal should be a favourable judgment for your client.
In order to represent your case effectively try to help the judge
so that it makes it easy for him not only to make up his mind, but
to write the judgment also.
Speak slowly. Do not hurry. If you
speak fast and your thoughts run faster than your speech, there are
several disadvantages.
You may not convey your arguments
to the judge. He may not be able to take down and grasp your important
points. You may yourself forget to mention a ground or a point in
a hurry. Try to note down the points and arguments on a piece of paper
and then; argue your case taking those points one by one. Put your
propositions and supporting arguments in such a way that writing the
order becomes easy for the judge. If permitted by the Bench file written
submissions.
-
Honour the client and judge
There is a tendency in Lawyers having only appellate practice,
to throw blame either on the assessee or the instructing tax consultant/C.A.
who has represented his case before lower authorities for any mistakes
or lapses. Remember you have to play with the cards that have been
dealt to you. Have full faith in your case. If you feel that your
client is grossly guilty and has indulged in tax evasion, just present
the case in the best possible light.
Never defend wrong deeds. A lawyer
has to be the first judge of his client, as when he receives the brief,
he forms his own opinion on the case. Explain your views to your client
honestly and boldly. Then alone accept the brief. This will give you
a sense of confidence which will be reflected in your behaviour in
general and to the judge, in particular. Francis Bacon in his famous
book "Elements of Common Law" has remarked.
"I hold every man a debtor to his
profession." Remember that you are first an officer of the court and
then a representative of your client. Your commitment to justice and
social good must be as strong as your commitment to the client. This
will build up a reputation for you and will make wonders to the quality
of your representation. You don’t have to be an orator par excellence
to master the art of representation.
There is a very good sentence in
Shakespeare’s Twelfth Night. "He does it with better grace, but I
do it more natural. "Be natural and respectful rather than verbose
and flamboyant. Always address the bench either as Sir or Your Honour.
Try to reply to every query from the Bench, quickly but politely.
Rudy yard Kipling once asked: It is clever, but is it Art? Strive
to be an Artist, rather than being clever.
Always be dressed properly, preferably
according to rules laid down in this behalf. Follow dress code. As
Shakespeare said in Hamlet "The apparel off proclaims the man".
-
Thou shalt not kill thy opponent
Do not be savage to the opposing counsel. Avoid temptation to
retort. Theat the Department Representative with respect; Remember
that he is not a specialized attorney as you are. He has to handle
several cases a day — probably without proper briefing. Be sympathetic
towards him. Object only when he is not stating the facts correctly.
But do not interrupt him while he
is arguing. Do not show reaction by gestures or to remarks.
The maxim to be followed is: Audi
Partem alteram. "Hear the other side".
Do not object to adjournments requested
by the Departmental Representative as far as possible.
Follow the rules of procedure. Do
not reply to a reply.
Remember your object is not to show
your superiority over the department’s representative, but state your
clients case effectively and in the best possible light.
-
Thou shalt not commit Oratory
Use simple but effective language. Do not use flowery language
or heavy language. It is likely that is may create an inferiority
complex in the judge and he may turn unsympathetic. Do not use rhetorics
to impress the judge. There is nothing more difficult than to use
simple language. Use analogies and every day occurrences to drive
home your point. Show the absurdity in other sides arguments. Put
your arguments in such a way that the judge himself will come out
with the proposition or, conclusion which you are canvassing. This
will satisfy his ego tremendously.
Many a judge would agree with Winston
Churchill when he said : "I am always ready to learn. But I do not
always like to be taught".
Do not argue for the sake of argument.
Many on argument in sound — just sound!
-
Thou shalt not hide facts
Be absolutely honest on facts. Do not compromise on this. You
can present the facts in a light favourable to your client. But that
does not give you any right to conceal or distort facts. The Art of
representation lies — not in lies, but in being fair and honest. Once
a Senior Member of the Tribunal introduced me to another member saying
"whatever he says on facts you can accept blindly. Whatever he says
on law, you better be careful". I have regarded this as the best compliment
received.
Certify the contents of paper book
accurately and honestly. Do not try to insert new evidence or documents
without following proper procedure.
You need not cite case law which
is against you client on you own but if asked you must do so unhesitatingly.
However, if there is a direct decision against you on a particular
point, it will enhance your image considerably if you bring it to
the notice of the Bench in your reply and then try to deal with or
distinguish it. You are more than likely to find support from the
Bench. Further admit your lapses or mistakes fairly and honestly.
-
Thou shall not make false or misieading
statements.
This is one temptation which you must avoid if you wish to master
the art of representation.
In the heat of the argument, (or
deliberately) many representatives tend to make a statement which
is either misleading not entirely correct or down right false, in
the hope that they will get away. A shrewd judge will immediately
notice or recognize that you are being less than honest and that will
not only damage your case, but your reputation also and anything you
say thereafter will be taken with a pinch of salt.
Your client should never get the
feeling of the patient who said: "The doctor saved my life — he did
not come!"
-
Thou shalt cover success in appeal
at the cost of honesty and integrity
The last commandment is somewhat repetitive but I consider it
the most important.
In order to marshal the art of representation,
you must build up your reputation as an honest and sincere representative.
Do not adopt unfair means to succeed. Remember you are a debtor to
your profession and the debt has to be repaid. Once you have built
up reputation you will succeed even if you commit minor lapse or even
if you are a little deficient in representation.
It is said that a doctor is the only
person who enjoys bad health. Let it not be said that Lawyer is the
only person who enjoys litigation.
Finally, Art is nothing but drawing
the line somewhere. A representative/lawyer who can draw the line
and knows how to begin and where to stop has mastered the Art of Representation.
After all, it is better to remain silent and appear a fool, than to
speak and remove all doubts!.
