Written by Ms. Preeti Sahai, Batch of 2018.
Author’s note: I do not think it is an exaggeration to say that law school doesn’t quite prepare one for the actual practice of law. Most of the learning-teaching in law school is theory-oriented and exposure to practical aspects is usually relegated to the final year/semesters. And when it is finally time for ‘practical training’, it is a cursory introduction rather than a deep dive.
Obviously, this is why training through internships/paralegal-ships/clerk-ships is encouraged (and actively pursued). But this begs the question – how much can one truly learn in a period of 4-8 weeks (which is the duration of most internships)? Not much, to be honest. And that is perhaps why the more enterprising ones work towards learning the ropes through long-term internships/paralegal-ships/clerkships. Most, however, make peace with the fact that it will be learning on the job. But learning on the job often means baptism by fire. Does it always have to be so? Looking back, I can confidently say that it does not.
With this in mind, I decided to write the present article – to share certain tips that I wish I had known when I started practising law and some that I picked up on the way. In the process, I also hope to introduce litigation enthusiasts, potential litigators and newbie litigators (and curious ‘non-litigators’) to some realities of pursuing litigation as a profession, based on my experiences so far.
Considering that ‘normal’ legal practice is on hold due to the COVID-19 pandemic, I have restricted the scope of this article to those elements that will be relevant, both, in the present circumstances as well as the future. I hope readers will find this write-up helpful.
I. In defence of litigation:
Compared to other areas of legal practice, litigation occupies a rather precarious position. Most lay-persons have …unflattering assessments of the job. Within the legal fraternity, litigation does not generate the kind of curiosity or awe that M&A, taxation or competition practices tend to. And those who manage to retain their enthusiasm for litigation even after all this have to grapple with issues of pay disparity, less ‘swanky’ work conditions and the ‘unending grind’. The combined effect is that several law graduates end up making a conscious decision to stay away from litigation practice. (While in recent years, the growth of arbitration in India appears to have piqued interest in pursuing litigation as a career option, it still isn’t the first choice for many.)
So why then do (or should) we choose to become litigation practitioners? The answer varies from person to person. For me, having spent 5 years studying the theory of law, it made perfect sense to learn how it translates into practice. And what better way could there be to learn than litigation?
Happily, my beliefs have been vindicated by the several merits of the practice. One of litigation’s biggest highlights is the sheer variety of matters one gets to work on. Then there is the (terribly underrated) opportunity to immerse oneself in purely legal issues and complexities (as opposed to regulatory concerns/requirements). And, of course, there is the unmatched thrill of participating in the various stages of a trial – be it the stage examination of witnesses or of arguments before the bench/arbitrator(s)!
The greatest joy of being litigator, however, lies in the opportunity to contribute to the justice delivery process. Sure, the system’s shortcomings often make victories feel pyrrhic. Hard-earned victories are also sometimes fleeting. But despite the odds, as a litigator, one is in a much better position, compared to several others, to assist parties who find themselves in positions of undeserved want. And when, after working within the system, one is able to successfully obtain relief from the court/arbitrator, the satisfaction and pride are unparalleled.
(Honestly, all this more than makes up for the time one spends on mind-numbing searches for the most helpful precedent(s) and in revising (and re-revising and re-re-revising) drafts. In fact, it even makes up for the losing battles against ever-rising mountains of papers (case briefs are anything but brief), the mad dashes to court when the board suddenly “collapses”, the 5:30pm lunches, and of course, the frequent adjournments!)
II. The practice of litigation: how should one go about it?:
If you have decided to pursue litigation as a career, the very first thing you must do is familiarize yourself with the holy quartet for all fora where you hope to/will be practising: (i) websites, (ii) rules and practice notes, (iii) judges’ assignments and (iv) building layouts. Once this is done, you should work on learning the formatting requirements for the different fora where you will be filing pleadings. This is important, because as a beginner, you are not expected to be a master of law or procedure; you are only expected to be diligent, responsible and willing to learn and having done your homework is half the battle won! (Needless to say, this knowledge is in addition to being conversant with the law(s) of your area(s) of practice!)
Once you start practising, you will realize that being a litigator is both, intellectually and physically strenuous. An average day will involve attending hearings/meetings in the morning/afternoon, working on pending drafts and research work in the evening and/or attending more meetings/hearings in the evenings. Days when matters are scheduled for final hearings tend to get especially hectic. So if you want to keep disaster at bay, you must:
- keep your papers well-organized, easily accessible and securely backed-up at all times;
- take deadlines seriously (procrastinating tends to backfire); and
- eat your meals on time.
Over time, you will learn that the law is usually straight-forward. The facts, however, are mind-boggling, and a lot can turn on certain facts. You will, therefore, have to put in extra effort to know the facts of all your cases properly. A simple and effective way to accomplish this is to keep handy an exhaustive list of dates, documents and events (LoDDE) for each case that you work on – you should start preparing one from the time that you are assigned a case and then update it regularly to reflect new developments. (A well-made LoDDE also comes handy during briefings and arguments. Win-win!)
Obviously, in the initial days of your practice, you will not get (m)any chances of individually arguing matters or examining witnesses. You will mostly be part of a team and will assist seniors who will do the heavy-lifting. This means that once the initial sheen wears off, it may be tempting to treat “going to court” / attending hearings/meetings as routine affairs. However, you shouldn’t let that happen. Every chance is an opportunity to learn – be it the law or the art of advocacy or even the mistakes to be avoided – and you should treat it as such. Honestly, keeping your eyes and ears open is one of the simplest ways to pick up valuable skills!
Having discussed some dos, I must now add some don’ts. As your work-load increases, you may find your enthusiasm for certain cases waning. You may also find yourself adopting a …transactional approach to matters. You must guard against these tendencies – it is important that you retain your commitment to each case, through all the ups and downs and delays. At the same time, you should be careful not to get too emotionally invested in any particular case – it will only cloud your judgment and prevent you from representing it to the best of your ability. And lastly (but most crucially), you must neither indulge in nor encourage unnecessary prolongation of matters. (You should, however, try and promote amicable resolutions of disputes wherever possible. Being a litigator isn’t only about adversarial dispute resolution, after all!)
III. Pleadings without tears!:
A major part of litigation practice is drafting work – from praecipes and letters to full-fledged pleadings. However, since very few of us have any noteworthy experience in this field when we start out, a drafting assignment can seem like an insurmountable challenge – What to include? What to exclude? What to emphasise? How to conclude?
An important fact to keep in mind is that there is no right or wrong approach to drafting. What matters is how clearly you can convey your point(s). As a fresher, a great way to learn drafting is to study multiple types of documents and pleadings drafted by different persons. This not only introduces you to distinct styles, but also helps you get a sense of the key elements that are common across documents/pleadings. (A word of caution is in order here. There is a major difference between relying on a precedent and replicating it. What separates good drafts from great drafts is originality of thought and expression and you must, therefore, develop your own style of drafting.)
Another thing to bear in mind is that it does not do well to wait for inspiration to strike and forget to draft. More often than not, this approach leads to missed deadlines and unsatisfactory drafts. Instead, it is better to set personal deadlines for drafting assignments. This way, you don’t end up spending disproportionate time on any particular draft and you are also left with sufficient time for proof-reading (absolutely non-negotiable).
Yes, the journey to becoming a good drafts(wo)man is long and littered with heart-break. There are also no ‘prizes’ for inspired drafting. But the end result is always worth the effort.
IV. In conclusion – the 7 habits of highly effective lawyers:
Having discussed some aspects of litigation practice, I believe it will be helpful to conclude this write-up by going through certain ‘best practices’ for a satisfying life in law.
First and foremost – prioritizing is the key to success! Given the avalanche of work, it will be impossible to keep your head above the water unless you plan, and then stick to the plan.
Second, even though it is difficult to find time for anything beyond pending assignments (particularly when you are just starting out), you cannot neglect certain basic (but essential) activities. These include:
- keeping yourself up-to-date with latest developments in your core practice area(s) (and the law generally);
- setting aside time for ‘deep thinking’ ie analyzing and strategizing; and
- keeping up/developing the habit of reading and writing for personal knowledge and growth.
(No doubt, having to cram everything into 24 hours can get maddening. However, things definitely get easier with time, especially as you get better at the job.)
Third, you must always keep channels of communication open. Successful teamwork hinges on effective communication. Often, problems arise (and snowball) because of communication gaps. So when in doubt, ask. (Or disclose, depending on the circumstances!)
Fourth, as much as lawyers hate mistakes, it is important to accept that mistakes are inevitable. Everyone, no matter how well prepared/trained, has to go through the trial and error process of learning. So don’t be afraid of getting things wrong. Do not, also, gloss over mistakes – the best course of action always is to acknowledge, apologize, learn the lesson and move on.
Fifth, you should work on nurturing resilience. Setbacks are common – be it an unfavourable order or an unexpected development. The key is to take things in your stride and not allow them to derail your plans or mood. It is always better to focus your energies on salvaging the situation/figuring out the next course of action. (Of course, a little ranting and moping never hurt anyone!)
Sixth, you must not let the stress of lawyering seep into your behaviour. Being kind and polite, especially when things go wrong, are important qualities. This is because lawyering is essentially about dealing with people and everybody likes to be treated well! I recommend making Carl Sagan’s wise words your motto – “Let us temper our criticism with kindness. None of us comes fully equipped.“
And finally (but most importantly), you must prioritize your health and well-being. Burning the midnight oil is good for your practice, but you cannot afford to let your work commitments consume you. You must make time for family and friends and hobbies and exercise and whatever else makes you happy and keeps you healthy. After all, a healthy and happy lawyer is a productive and successful lawyer!
 This trend is problematic because many fail to consider that arbitration practice in India is still largely a subset of litigation and that there are very few practitioners who focus solely/primarily on arbitrations.
 If you have started practising, you should try to shadow your court clerks or at least, pick their brains. They are, after all, the unsung heroes of litigation practice!
 I recommend that you do yourself a major favour and set your sights on mastering MS Word and Excel and a pdf editing software (Adobe/Nitro are popular options). These skills always pay off!
 This may seem obvious, but timely meals (and hydration) are often the first casualty in litigation practice.
 Jurisdiction, limitation and locus are very crucial preliminary elements. You must always keep an eye out for these.
 You may want to consider joining the growing tribe of ‘plain English’ lawyers!
 Practising law has (rightly) been described as a game of chess and no game of chess was ever won without careful strategizing!