*Part of the ‘Letters to a Young Lawyer’ series. This series is inspired by my conversations with my brilliant younger colleagues at the Chambers. This is how it goes:
Congratulations, you’ve got a brief!
1. Look at the brief admiringly! (But not for long lest people start suspecting your sanity!). Well, Congratulations – this brief that you hold in your hands is an opportunity to learn; an opportunity to engage with law through the medium of a human story, a story of conflict. A brief is also an opportunity to solve a problem for someone and provide a solution, and also prove yourself.
2. Speak to the Client and understand everything that you can. Speaking to the Client is often the fastest way to cut to the chase. Ask the Client to begin at the beginning and proceed chronologically. Ask lots of questions (subject, of course, to time constraints!). Don’t take anything at face value when you are being briefed. Test the case before you are tested by your senior (or the Court, for that matter!)
3. LAST ORDER is FIRST ORDER : Now, if it’s a pending litigation, go through the last order first. So that you know what is to be done in the matter immediately. More often than not – if a Client comes to you mid-litigation, then there is a good chance that the litigation has already been mismanaged to some extent. So the first thing you need to do is to get the house in order. This is basic housekeeping. Quickly check the next date of hearing. Mark it on the court diary/calendar. If it’s an appeal/revision/review case and the appeal has to be drafted and filed, quickly check the period of limitation for filing of that appeal/revision/review (Schedule to the Limitation Act) and how many days are left (Excluding, of course, the time taken in procuring certified copies, etc). This would help you understand how much time you have and help you strategize and prioritise accordingly.
4. BROAD FACTUAL REVIEW : First, go through the facts (and not necessarily the law!) and brief senior ASAP. This is a very broad level of factual scrutiny and would not require an in-depth analysis of all documents and evidence. It would usually include:
A. If this is a civil suit, look at the Plaint, WS and Interim orders (if any). Interim orders should be looked at because they would normally discuss the brief facts of the case, and the positions taken by both the parties and the Court’s first opinion of the case. The Issues framed in the case may also be a good starting point as they would tell you – with precision – the questions on which the parties have to lead arguments and evidence.
B. If it’s a criminal case, the FIR, or findings in the Chargesheet (the first part of the police report containing the opinion of the police), or a detailed order on charge would help you cut to the chase quickly and understand the story. If it’s a single complainant case, the complainant’s 161/164 statements should probably come next. Appreciation of evidence/witness statements can, possibly, come later (Remember, timeline is everything in a criminal case).
C. If it’s an appeal, revision, review, writ, etc – the impugned order is the first thing that you see, followed by grounds of appeal (If an appeal has already been drafted).
D. If it’s a contractual/pre-litigation advisory sort of a matter, then the contract(s) between the parties (including drafts and term sheets) and the correspondence (if any), becomes crucial and should be examined first, in chronological order.
5. Brief your senior on what seem to be the broad issues (factual and legal) in the matter, the last order in the matter, and the urgent deliverables, going-forward. Take the Senior’s advice on how to prioritise and approach further.
6. Remember : In most cases, a List of Dates/ Timeline is everything. Please remember this! Events are best understood in light of their context and ‘when’ they happened. Time is a beautiful thing! It prevents everything from happening all at once. It provides a symmetry and order to everything. See the evolution of the case or the commercial relationship and then see how the dispute arose. Make a good list of dates which includes references to documents/depositions/evidence. Your LoD should be a ready reckoner on all aspects of the case. Also, normally, and if you have the time, your LoD should be party agnostic. By this I mean it should enlist the important dates and events from the standpoint of both the parties and not just one. That would help you get an exhaustive view of the matter and help you meet the opposite side’s arguments better.
7. Practice the art of triangulation from various sources. Different documents or depositions may say different things about a single event. For instance, on whether there was a board meeting on 1st Jan, 2022, different parties and witnesses may have different narratives. Try and examine inconsistencies, if any. Point out – clearly – what is your Client’s narrative on the matter/issue.
8. See what’s missing in the file. In a civil file – you should broadly have – depending on the stage – the Plaint, WS, Replication, if any, Admissions and Denials, Issues, affidavits in evidence, order sheets, misc. applications, replies, etc. etc. Immediately after flagging these, circulate a list of what’s missing to the Client and get those documents or have the clerk apply for certified copies. In criminal cases, FIR, Chargesheet, 161 statement(s), seizure memos, 164 statement(s), order taking cognizance, bail application copies, order on charge, depositions of the witnesses, statement of the accused under section 313, judgment, sentence order should be there. See what you have. More importantly, see what you don’t have in terms of documents. In parallel, prepare a list of question/documents you need from the Client. Get those missing documents ASAP.
9. Further, if this is an appeal case – immediately see if you have certified copies of all the papers. Instruct your clerk to apply for certified copies ASAP. If there are documents in Hindi and an appeal has to be filed, get those translated. Get Annexures typed. Remember : If you take care of these small things – the big things would take care of themselves. If the Client is in jail, immediately get Vakalatnama signed; visit the Client in Jail and interview her.
10. Discuss with peers who have done a similar matter, know the basic lay of the land and seek their suggestions.
11. Discuss with your senior – again. Tell your senior the brief facts, Opposite side’s position and the essence of the Last order, the Next date of hearing and then ask your senior to help you with the identification of legal issues (if there is time – you may do your own preliminary research too). This would include identification of applicable statute(s), precedents, arguments/contentions, similar cases that the senior may have done. If you have time and there is no urgency, do this exercise on your own. Start with the what you reason/logic tells you, then the bare act, simplest textbook, commentary, case laws, foreign precedent/juristic opinion/articles. In that order!
12. After this do a more detailed scrutiny of facts. Brief your senior again after a detailed scrutiny, this briefing would include taking the senior through the important documents, depositions, everything, the whole 9 yards.You may start preparing the factual part of your draft while doing this – for greater efficiency.
13. As guided, collect those legal arguments, provisions, precedents at one place and go through. The focus should be – bare act, simplest textbook, then commentary, then case law search through portals.
14. Seek pointed legal help on whatever legal issues you are stuck on. Keep the senior updated on broad progress for the day on that matter.
15. Do pay specific attention to : Jurisdiction (Territorial, Pecuniary, Subject Matter) of the forum concerned and the SCOPE AND THE POWERS OF THAT COURT/AUTHORITY, Limitation, other formal defects such Res Judicata, bar of law, etc.)
To be continued……
*By no means exhaustive. Just a bunch of random thoughts/principles that have helped me over the years. To be taken – as everything else – with a bucket of salt (and pepper!)