There is never a dull moment in the life of a litigating lawyer. A litigating lawyer has the opportunity to work on a large variety of cases – ranging from procedurally technical cases to cases relating to public interest or constitutional issues or that one big case, where there are big stakes involved for the parties, pitted against one another in a particular litigation. And as a litigating lawyer, it is his or her duty to know all that there is to know about the relevant facts, the applicable law and the latest judicial precedents on the issues involved. A professional lawyer is not a layman. The lawyer is responsible for all moving parts of his or her ship – the case in hand. And more often than not, those lawyers who don’t take the time out to think and re-think the preparation, strategy and presentation of a particular case, are only successful in scratching the surface of the small details that could make the difference at the end of the day. Most recently, whilst working on a case with my Ustaad, he pointed out that our generation of lawyers are too busy trying to become successful – getting more work through contacts and PR, building one’s name by handling a large volume of cases without taking the trouble to submit to the discipline of law. Yes, that favorite phrase, once again. In short, we litigating lawyers are required to love our case – treat it with the same passion and love we do with our families and personal relationships. How do you do that exactly?
Unfortunately, there is no guide book for a litigating lawyer to understand how to love one’s case. According to my Ustaad and other eminent Senior Counsels in our field, it comes with experience and by understanding that when a case is before a certain Court, it is the duty of the Counsel to present the case according to the correct procedures of the law whilst keeping an eye on the legal rights and obligations of the parties. And keeping that macro picture in one’s head, enables a litigating lawyer to look at the micro details – not once, but again and again, in order to distill the arguments that will genuinely assist the Court in the process of adjudication. Loving the case means taking the time to dissect the case at all levels and asking the client to give you the relevant raw material to understand, process and use accordingly for the battles to come. A lawyer is expected to know the law, to find the law and apply the law to the particular facts and circumstances of the case. But what lawyers don’t seem to have the time to do anymore, is to reflect, re-think and refresh their ideas and concepts with respect to the presentation of a case in Court. As mentioned in an earlier installment of the diaries, a lawyer must have the flexibility in Court to shift strategies according to whatever variables come into play – and that can only happen if we take a step back from our fixed ideas on what our trump cards are in a particular case.
Most recently, we were preparing for a case before the Supreme Court with my Ustaad. The Client was playing a very proactive role in giving us the raw material to prepare the presentation of the case. The case before the Supreme Court is a civil appeal and we are representing the respondents in the appeal. Us juniors had prepared the notes for arguments for my Ustaad - the 4th and hopefully final installment of the notes, as the case had been adjourned multiple times over the past year. We all sat down with my Ustaad to go over the notes. Expressing his dis-satisfaction with the practicality of the use of such notes, he asked us what we had considered whilst making the revised notes. We confidently answered that every aspect that might be relevant to the issues that are to be decided have been looked at – the case laws, the documents, the relevant orders and the pleadings of the parties. He then asked us to take him through the thought process for each argument mentioned in the notes. During this exercise and upon looking at the relevant materials (which materials he was also familiar with, given the multiple times we had prepared the case), he pointed us to something that was relevant and what we had apparently missed out on. “How could we have missed it?” we quietly asked ourselves. Then the answer came… “The problem with you folks is that you would rather spend most of your time, word processing in front of your computers instead of thinking and re-thinking about the case in your heads”. In short, we were satisfied with our work and as a litigating lawyer. To be complacent in one’s preparation is the equivalent of falling out of love with the case!
There are always valuable lessons to be learnt whilst being a litigating lawyer. There will be times when a lawyer will win, and when the lawyer will lose. And no lawyer is ever perfect. More often than not, one will come out of Court, thinking about what opportunities may have been missed or what argument was left out or not stressed enough. We are always learning from our experiences. But what we must endeavour to re-learn is how to love the many components of our cases and to understand that nurturing those components is key to being a good advocate in Court. The journey continues.