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The craft of a lawyer: how to persuade a Judge. Part 1

New lawyers often wonder how to represent their case before a Bench so that they are heard properly. There many books on this subject but the best is perhaps “Making your Case, The Art of Persuading Judges” by Justice Antonin Scalia of the United States’ Supreme Court and Bryan A Garner. Justice Scalia was world renowned jurist and one of the pillars of the US Supreme Court. He championed ‘textualism’ in statutory interpretation, a popular juristic position with which we may furiously disagree, but Justice Scalia’s advice to lawyers on the craft of a lawyer is unquestionably sound and will stand the test of time. This paper is a based on this authors experience with handling litigation in Indirect Tax matters, vetted by the advice given by Justice Scalia.

When do judges get persuaded?

Justice Scalia in his book says that there are three conditions under which judges get persuaded, namely:-

  1. When the court clearly understands what the lawyer is asking it to do, and

  2. The lawyer ’s request should be within the powers of court, and

  3. After hearing both the sides, the court appreciates that what the lawyer is arguing for, is the best.

General principles of persuading any person:

As a general rule a person trusts someone who appears to be forthright and is more ready to listen to him than to someone he does not trust. Any person would behave in a similar way under any situation and Judges are no exception. Ability to gain the trust of the Judge does affect the course of decision making in a court and it is all for the best. It is important for a lawyer to be personable and trustworthy in the manner of his presentation as well as in the substance of argument.

The first rule of persuasion is to strictly avoid misrepresenting the facts of a case. A lawyer’s one line which appears to present facts incorrectly can ruin his standing. Such an act may also impair the delivery of justice, even though law demands of Judges to find facts for themselves and maintain objectivity.

Preparatory pleas:

The very first submission before a court must be to inform it that it does not have a jurisdiction to deal with the matter, if that is the case. In indirect taxes for instance, appeal against the order of Commissioner (Appeals) in matter of rebates and drawback does not fall within the jurisdiction of CESTAT. Further the Tribunal is not an appellate forum for hearing appeals on a matter under Regulation 21 of CHALR 2004 (prohibition on any Customs House Agent from working in one or more sections of the Customs Station) though it can decide on matters under Regulation 20 and Regulation 22 of CHALR 2004. Jurisdictional issues are also important in customs and central excise as matters pertaining to classification and valuation cannot be heard by a Single Bench or by a High Court. For lawyer s who appear before single member Bench it is extremely important to make a preliminary scrutiny on whether the said Bench will have jurisdiction in the matter before it.

An argument on limitation is also a plea of jurisdiction. If an appeal is barred by limitation of time, e.g. late filing, this issue must be placed before the Court so that the hearing of substantive arguments are taken up only after the issue of limitation is resolved. There are some provisions where the limitation clause will work only after the court has come to a certain decision on a substantive issue. One such provision in tax laws is about larger time limit available for demanding taxes in case the tax payer is found to have “supressed facts”. In such cases the lawyer will have to first prove that his client did not have the ‘mens rea’ of evading taxes before he can take a ground of limitation. Courts may defer the hearing of the plea of limitation in such cases for a time after they have dispensed with the main substance of the demand, but still it makes good sense to flag the issue of such a limitation right at the beginning of the hearing.

Difference in nature of proceedings before an adjudicator with original jurisdiction and an Appellate

There is a difference in the focus of the adjudication between an adjudicator at the original stage and one at the appellate stage; the adjudication at the original stage is more concerned on achieving the proper result in that particular case before him, whereas the appellate court tries to craft the rule of law that will do justice in the generality of the cases. In appearing before adjudicators, a lawyer must take due note of such differences and he may have to orient himself accordingly.

Preparation for appearances:

Most difficult cases depend on an interpretation of statutory provisions. The mind of a judge is strongly influenced by a lawyer ’s argument on legislative intent supported by judicial precedents. A lawyer ’s primary responsibility, therefore, is to fit his case within the parameters set by the intent of the provision of statute in question and precedents. The Indian legal system functions under the adversarial system, in which the courts may not make their own discoveries (unlike courts in civil law systems) but depend on finding out the truth by hearing two opposing parties to the dispute. The ability to show that the interpretation being given by a lawyer is the one that is right whereas the opposing construction being made by the other side is fallacious is the mark of a successful lawyer .

At the appellate stage in the court, the lawyer is required to know the records of the case very intimately. It can be very damaging to his case, if lawyer communicates to the Court a fact which is different or opposite to that what is in the record. It need hardly be stated that he should be conversant with the law as it stands regarding the issue at hand. Judicial pronouncements on the same issue have binding effect but even those that are not on identical facts but are on analogous situations, carry significant weightage. It is therefore vital that cases decided both for and against the client’s stance be considered deeply while preparing for a matter.

A successful lawyer is one who is ready with the rebuttals that may arise from the submissions made by the other side. The adversary’s positions can be ascertained from their written pleadings, but the adversary is also free to develop new arguments or reverse their theories in course of argument. In this background, the lawyer must of himself and his team imaginatively create the best arguments that can be taken by the adversary and the ways in which those arguments can be rebutted.

In addition to the record of the case, based on the law as it stands, the lawyer is also expected to think out as to what are the likely outcomes of the hearing which would be to the client’s interest. It is necessary to have thought of all contingencies in advance because it is possible that the court may ask for a view of the lawyer as to what would satisfy the client as a litigant in respect of an interlocutory order they are considering, such as on quantum of pre-deposit or the need to remand the case. The lawyer can seek time for reply but that would delay proceedings which would not endear the lawyer to the Bench.

The very important feature in preparing for the case is to know the mind of the Bench and the factors that may influence them in a particular case. If that Bench or any other co-ordinate Bench had been inclined to take a favourable view in similar situation earlier, the lawyer must forcefully state at the very first opportunity that he and his adversary do not have an equally strong case and that the Bench in similar matters has favoured his client. Hence a lawyer must flag a favourable judgement pronounced by the same Bench at the initial stage itself.

A lawyer on his feet:

The lawyer who has worked very hard preparing a case should normally convince himself that his client’s side is right unless the case implies defending the indefensible. It is not material that the lawyer while acting as a judge later in life may have to take a contrary view. It is also quite open to him to take a contrary view later when in another case. The mental preparation for successful argumentation involves convincing yourself that your case is the best; but it also implies that you are confident that you have not taken up a case that you know is bad. However, it is not advisable to boast to the Bench that the client has a cast iron case and that there is nothing to be said from the other side. This knowledge should be kept to oneself, even if it is true, and the lawyer should proceed methodically to show the merit of his own case and the defects of his opponents.

An important issue in Indian courts is inaccuracy of many pleadings. While making a submission, a lawyer must maintain scrupulous accuracy and it is important only to make a statement that he knows to be correct. He should never make a statement of which he is not perfectly certain. However, if he has to err, he may err on the side of understatement. For example, if he has to make a statement that the opposite side has never raised a particular plea before the original authority; he could say this by an introductory preface, like “as far as we know”.

A few good pointers to bear in mind while arguing would be

· Maintain good eye contact with the Bench. This can emphasise a point you wish to make.

· A really good lawyer can use pauses in her speech for putting across the strong point in her favour.

· Use professional language. You are addressing a judge who deserves your respect. It is quite correct to address a Member either as “Sir/Madam” or as “Your Honour” or “My Lord” as is practice of that court.

· Dress well. It will give a good impression.

. If you are asked a question by the Bench, answer it to the best of your knowledge from the records.

Commencing the argument:

When starting an argument, it is generally advisable to put the winning argument up front, in the beginning. The first impression does not get erased from the minds of the judges. Secondly, the attention of the Bench is at its best when a Lawyer begins his arguments. Thirdly, there is always a risk that after you have started your arguments, the questioning from the Bench may quite deviate you from your plan of presenting the arguments and you may not get adequate time to place your strongest arguments before the Bench.

There are certain circumstances where the lawyer must lead with other issues such as that of jurisdiction. Even if he has a strong case, a lawyer cannot ask a Bench to decide the substantive issue in the matter if the court does not have the jurisdiction to hear it, and in such cases all other arguments become irrelevant. There are certain circumstances where a strong argument may need to be preceded by a preparatory argument, and in such a case too it would not be possible to lead with the strongest argument first.

Appearing as appellant:

In an appeal of his client, a lawyer must put forward the positive case of the client and then begin to refute all possible arguments which the respondent may have in her store. Thereafter, the lawyer must restate his main argument while concluding. If a lawyer ends his arguments by refuting the respondents, there is a possibility that the Bench’s mind would remain focused on the respondent’s case and they may not remain impressed with the lawyer’s main case. Aristotle states in his work titled “Rhetoric” that “ in court one must begin by giving one’s own proofs, and then meet those of the opposition by dissolving them and tearing them up before they are made “. Refutation always follows statement of the lawyer’s main case.

The need for refutation on a presumptive basis is necessary for various reasons. It indicates that lawyer ’s submissions were crystallized only after the lawyer had carefully looked into the arguments from the respondents. Secondly, it gives the Bench the idea that the lawyer is not reluctant to deal with the argument of the respondent. Thirdly, it makes the respondent feel defensive. Fourthly, it gives the lawyer an opportunity to explain the counter arguments in her own words and manner. Fifthly, it gives an impression that the lawyer is trustworthy in her assistance to the Court.

The only risk that a lawyer runs in presumptive refutation is that the respondent may actually never place those arguments before the Bench or that it had not occurred to them and would now place them. It is not wise to give the opponent a lead that they had not thought of. A decision in this regard can only be taken in the background of what has been argued by the respondents before the original authority of the kind of the arguments being advanced by the Lawyer of the respondents.

Appearing as Respondent:

There are certain kinds of cases where it becomes necessary to refute the appellant’s case in the very beginning. This method is adopted if the court may find the arguments of a lawyer appearing as respondent too academic till the appellant’s arguments are rebutted. In a case of taxation demand, generally, a lawyer would do best by putting forth her affirmative and strongest arguments first, even while appearing as a respondent.

In case a lawyer takes resort to the technique of refuting the appellant’s argument first, then as soon as he creates space in the minds of the Bench, he should quickly proceed to lay down the client’s take on the case, the department’s major premise and client’s version of the central facts.

Justice Scalia quotes Harold R. Medina from the book “The Oral Argument on Appeal”, the following words:

“Nothing could be a more serious mistake than merely to answer the arguments made by lawyer for the appellant. These arguments may be skilfully designed to lead lawyer for the respondent off into the woods or they may lead him there unintentionally. The proper line of attack for lawyer for the respondent to adopt is to proceed to demonstrate by his discussion of the law and the facts that the judgment is right and that it should be affirmed. All other considerations are secondary”.

General Principle of selecting arguments and facts:

If the client’s case can be argued in several ways, the lawyer must choose the most easily defensible position. In case there is a leading case which comes in the way of your argument, a lawyer should not argue that it should be over-ruled if there is a reasonable basis for distinguishing it. It may be possible that while arguing for a new rule, even where binding precedents sets forth the opposite rule, an attempt should be made to frame a narrow rule that is consistent with the department’s case.

If there are various rules by which the client’s case can be sustained, a lawyer must state all of them. He however must remember that the Bench does not have luxury of time to discuss each rule at length and therefore, a lawyer must at the end tell the court which rule is best and should be adopted by the Bench.

If a legal rule that favours the client cannot be squared with the facts of the case, the lawyer will be seen as unreasonable, if he takes too much time in arguing such a position. It is best to yield such grounds ostentatiously.

Every lawyer must make an admission of the facts that were put forward by the opponent. Then he should go on to explain why the conceded point does not make any difference to his case or why there are significant factors that outweigh those facts which are against him.

As a golden rule, a lawyer must not present a weak argument because that would show poorly on his judgment and reduce his creditability.

An overriding principle of argumentation is that a lawyer must select the best of all possible arguments for his client. A mediocre advocate defending a good position will beat the most gifted lawyer from the opposite side who is defending a bad position before a fair judge. A lawyer must give a considerable thought to his arguments and discuss them with his colleagues.

Lawyers mistake in thinking that a ten point argument would show that the case has been over-analysed. It is quite possible that the court may think that it has been analysed much less than three point argument where the lawyer has taken the trouble to weigh the strength of each argument and chosen the best ones.

The common failing of many lawyers is that they begin with facts randomly before arriving at a legal issue (or the main premise) involved in the case. Many courts insist that in a written brief, the question of law must be mentioned at the very beginning. In CESTAT, there is a requirement to mention the question of law; but filing of appeals is being allowed even if the question of law has either not been written or is entirely out of point. During the oral submissions, a lawyer should make up for this deficiency by stating question of law upfront.

Tax litigation revolves more closely around the statute than other forms of litigation, but the appellate body would always like to weigh the implications of any legal position they adopt in a particular will do justice to the general class of such cases. Therefore, a lawyer must make appeal to justice and common sense in addition to the statutory position relevant to the case so that the Bench feels that the legal stand advised by him serves the purposes of the Constitution of India and justice in general.

In addition to an appeal to the purposes of constitution or justice, wherever possible, a lawyer should dress up his argument with some well-regarded legal maxims. Though these maxims are generally based on principle of equity, they do make considerable impact on the minds of judges.

A blatant appeal to sympathy or other emotion, as opposed to a logical application of law is bound to be self-defeating. However, emotions do play an important role in influencing the Bench. There is a distinction between making an emotional appeal (for example mercy plea) and setting forth facts that may trigger emotion in a judge. A lawyer could attempt to put forth facts which set the Bench on a particular emotional trail; but to make a direct appeal to the judges’ emotions could be disastrous because it may be seen as an attempt to divert the Bench from merits of the case.

A proficient lawyer is recognized as an intellectual equal of the Bench. The relationship of an lawyer to the Bench is not that of a teacher to the student and the judges should never get that impression that the lawyer treats himself as a student, nor should the relationship of a lawyer with the Bench should be that of benefactor or beneficiary. An advocate does not approach the court to seek a favour from the judges, but to help them understand what justice demands.

Justice Scalia thinks that the best image of the relationship should be that which exists between a proficient partner in a firm, and a highly intelligent senior partner, who is being briefed by his junior. This would imply that the lawyer or any other legal representatives must always assume that he has a great respect for the intelligence and quality of the court but it may defeat the purpose if he mentions it in so many words before in that case the Bench may be such remarks as overbearingly patronizing or unnecessarily obsequious.

One of the most self-defeating manner of the argumentation is to show indignation at the poor treatment been given by the Bench to that appellant or the respondent. Even, if that be a case in reality, a lawyer must argue calmly and passionately. A show of anger by a lawyer would bring down his reliability and trustworthiness.

Similarly, an un-provoked attack on the opposing lawyer undercuts the persuasive force of the lawyer’s argument. In short, a lawyer must have a cool temper.

Peroration, which is the concluding part of a speech, is typically intended to inspire enthusiasm in the audience, and is analysed in the art of rhetoric. In the conclusion of the argument in a court of law, a lawyer is not expected to be emulate Mark Anthony emotional speech in the Shakespearean play “Julius Caesar”. He should briefly recall the principle arguments made earlier to the Bench’s mind and then state that if the rule advocated by his is not adopted it could lead to such consequences as creating confusion in the law for tax payers, and discouraging tax law compliant citizens.

A great lawyer is a perfect gentleman who is also deeply steeped in knowledge of law, and uses his craft to win cases with a charming smile.

[1] In deference to modern international practices, the more gender-sensitive pronoun “she” has been used.

[2] the word Rule is used in the more general sense and not restricted to mean Statutory Rule.

*Sujit Kumar Sinha (IRS retired)

Ex- Chief Department Representative andAdvocate, Delhi High Court


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