I distinctly remember. This was 2011. This was one of my first mandates, as a freshly minted 21 year old lawyer. I read and prepared for days. The research was reasonably good. I also had a proper speech in place. The speech had a beginning, a middle, and an end; it was also full of quotations, many a witty turn-of-phrase, rhetorical flourishes and bombast. I thought (and visualised), given my industriousness (I was rather pleased with myself!), the judge would give me ample opportunity and listen to me, with rapt attention, for hours and hours, before applauding the effort of a ‘truly learned’ young-counsel who truly assisted the Court in doing Justice.
But as with most ‘well laid-out schemes of mice and men’, this went awry too. The Judge would have none of it. He had read the papers and already had an opinion on most of the issues, either for, or against my client. The Judge wanted to start-off with some questions instead. This was my time. I couldn’t say, “I’ll come to that!”. I felt cheated. “Wasn’t it my job to argue and persuade him?”, “Shouldn’t the court be a blank slate and open to persuasion and give me the opportunity to present my case the way I want it to unfold?”.
Well, that’s not how it works, my friend!
On that day and in the next few months/years, I learnt a few lessons, which I’m sharing here, for whatever they are worth:
1) Being in court is all about visualisation; you need to imagine (in your head) the myriad ways in which a hearing may play out (the judge may listen, or may not listen to you, or ask a query that you didn’t think about!), the opposite side may file a misc. application to derail proceedings, the opposite party may not even be present, the judge may be on leave, so on and so forth. Those black-swan events. Think of those endless possibilities and prepare for each. Think of this as ‘connect-the-dots’ game, where – after you’ve connected all the dots – a picture emerges. Visualising and thinking is about having more dots to connect. The more experienced you’ll get – the more dots you will have. And as in ‘connect the dots’ the more dots that you have, more are your chances at arriving at a clearer picture or result.
That’s the only way to prepare. Litigation is strategy. It’s about thinking of all those dots and visualising. It’s about thinking on your feet and being ready for all contingencies (even the dots that you didn’t think about). Don’t fret. You’ll learn this. Just observe keenly and think more.
As a young lawyer, I would read my brief really well but not think about my brief as much. Thinking about the brief is as important as reading the brief.
2) Prepare your cases as elevator pitches. Most judges (or even seniors) won’t have the luxury of leisurely meditation and unlimited time on their hands. (I learnt that – first-hand – when, as a Magistrate, I’d often have 100+ cases on my board – on a SINGLE DAY). You don’t have endless time. There is absolutely no time to beat about the bush. Prepare an elevator pitch (but not just that, have a longer synopsis and scheme for arguments too – should the court hear you). Trust me, most cases can be stated effectively in 60 seconds, at least in their broad features. Remember, even the most complex cases can be distilled to 3-4 fundamental points. Sell the Sizzle first, the steak can wait! This would also force you to think clearly and distill your case to its bare essential and cut the BS. Have some good teasers in your elevator pitch that would tempt the judge to listen to you. It may a choice fact that may shock the conscience of the court, or an interesting legal question. Pique the Court’s curiosity and if you get that foot hold, you’ll get longer to elaborate on your point.
3) Your argument must have the answer to the most fundamental question at the heart of every case : WDWTW. Who Did What to Whom? The Human story behind the case. Never forget this. Human beings love a good story. It’s the lawyer with a better story/narrative that often wins. Of course, you can’t take creative liberties with the facts that you are handed (as a lawyer) but try presenting them in a light that’s favourable. And this can be done. You don’t need to lie, or even be – as some lawyers say it – economical with the truth.
Another interesting framework for framing arguments is to structure one’s arguments (or even a case note) on the following lines:
* Who? (Actors in the dispute/the parties)
* When (did it happen) ? Where (did it happen)? How (did it happen?
* What? (What do you request the Court to do?)
* Why? (Why should the Court do it and rule in your favour?)
4) Build a robust BS filter. Sift the relevant and the irrelevant, and do it quickly.
5) Have a killer briefing note synopsising the key arguments, case law, with page numbers.
Will write on (3), (4) & (5) in greater detail soon, and more….