To argue a case in Court (amongst other things), a litigating lawyer needs to know the facts of the case, the applicable law, the relevant judicial precedents, the level of advocacy required to be able to competently assist the Court. However, aside from the aforesaid items, the litigating lawyer, whilst he or she is on their feet before the Bench, has to be able to effectively communicate with the Court in order to make the best presentation of the case. But the communication does not stop there. A litigating lawyer is also required to communicate with the Counsel for the opposing party, with the client and should have the required skills to communicate in written form as well (drafting of legal notices, letters, replies, settlement/compromise agreements, etc.). That’s a lot of communication. As my Ustaad says “Before you go into Court or before you draft a legal document, you need to have clarity of thought – weighing all the pros and cons of each word you select to use.” So yes, we get to wear a Black Coat, we are supposed to be the “Champions of Justice” (so as to speak), we bow before the Court and we must be respectful towards the Court – but what is often neglected is having the ability to be able to effectively communicate one’s arguments and submissions with the required degree of flexibility to adapt to any given situation, so as to put the Court at ease whilst it is judicially considering a matter. And no matter how much chest thumping a lawyer does to emotionally plead a client’s case, there can be no substitute for clarity and precision of thought and expression whilst “litigating” on the job.
In an ideal world, everything should go right in Court if one is well-prepared. However, that seldom happens and the complex variables that come into play on any given day in Court can only be countered if one is quick on their feet and is able to communicate an appropriate answer to a particular query of the Court or give a firm rebuttal of an opposing Counsel’s arguments. Not to mention, one has to be able to arrange one’s thoughts and submissions in such a manner that enables the Court to easily proceed on the journey of the case being put forward by the Counsel. And this can only happen if a Counsel speaks clearly, loudly (not the same as shouting) and proceeds in a systematic manner so that it is easy for the Court to have an understanding of the case. For us litigating lawyers in Pakistan, a majority of the Clients determine our abilities if we can get the all important “Stay” Order on the first date of hearing. Unfortunately, getting stay orders have become an unfortunate barometer for how competent a litigating lawyer is. Young lawyers are often nervous when the stakes are high in a particular case – in matters of life and death. What is most important in such situations is to prepare your case well, anticipate whatever hurdles will come your way and be confident and clear in the manner in which you put forth your arguments and responses. It is imperative to have that belief in one’s case that if it presented efficiently, logically and articulately, the Court will grant relief – well, hopefully, at least. But for that to happen, precision in communication by the Bar before the Bench is necessary.
None of us are perfect and there will be bad days – what is important is to not repeat mistakes, to reflect upon what one might have missed out on whilst arguing and to be able to take stock and evaluate what might have gone wrong on a particular day in Court. I recall one of my first cases before the Civil Court, which was a property dispute and the Client wanted to get a stay order in his favor against the opposite party. My instructions were to get the Stay Order. On the first date of hearing, the odds were heavily stacked against me. The opposing party had caught wind of the filing of the case and it just so happened on the first date of hearing, when I cheerfully thought that I would get the stay order without too much difficulty before the Court, I was confronted with the opposing Counsel trying to persuade the Court not to grant the stay order. It was a tough hearing – with much protesting by the opposing party, but at the end of the day, I managed to satisfy the Court that the judicially recognized ingredients for getting a stay order were present in my case – prima facie case, balance of convenience and a threat of irreparable loss if the order was not passed. And the only reason I was successful that day was because I had prepared the case thoroughly and despite being faced with stern opposition, I attempted to communicate the merits of the case with some clarity and efficiency.
For us lawyers, it is a requirement that we possess the qualities of a warrior. However, brute strength alone is never enough to further one’s craft and finesse is required when it comes to convincing a Court to go along with the case of our Client. And no matter how big the occasion, what must be not lost sight of is that in order to get to do one’s best (for success is never a guarantee), a lawyer must be able to precisely and effectively communicate his or her arguments by paying attention to the choice of words and the sequence of arguments that will help clinch the matter in favor of a Client.