Art of Advocacy: In Golden Words of Senior Advocate Janak Dwarkadas

The article is the speech delivered by the Ld. Sr. Adv. Janak Dwarkadas before Bombay Bar Association in 2018. The entire narration is a beautiful compilation of the speech delivered by the Ld Senior in the program hosted by the Bar Association.

The moderator of the session states that there have been numerous occasions where he himself stood before the court mesmerised to see Sr. adv. Janak Dwarkadas take up cases, which he thought were completely hopeless and one would possibly think what can be possibly be argued in this matter. But then Ld Senior counsel, Janak Dwarkadas would proudly stand in the court and deliver his arguments with grace and win those cases.  The moderator, therefore, commented that what we don’t realise is that behind the presentation of Mr Janak in the court, is the unaccountable hours of efforts, skills, dedication and passion for and in law. Thinking how to select the case and how to place it before the court, which would enable him to win it. Mr Janak was always present in his chambers, hours of efforts preparation both on facts and law, taking a full grip of those cases, thinking about the cases, and selecting how to place it and in this entire bargain, you will always find Ld. Senior as the warmest opponent and never failing in his duty to the court and most importantly putting in his best effort to see that the matter can be resolved and in the court before time always putting in his best efforts so that the matter can be resolved.

The entire presentation is not just about the art of Advocacy but also about what is the advocacy and how issues can be resolved in court meticulously.

BEGINING OF THE LEGEND

For Sr. Adv. Janak, it was very ironical to stand here in front of the entire Bar Association and talk about advocacy because he never had any kind of experience in this field and nor did he ever speak in public. As a child, Mr Janak had not taken part in any kind of dramatics or any competition where the spotlight was on him and he was a very shy child from the very beginning. Hence choosing this legal profession was the farthest option his mind while he was completing his commerce degree.

Before Mr Janak realised he was part of the profession and if one would have asked him 40 years ago, that if he would be standing here and giving a lecture on the art of advocacy, Mr Janak would have told that “ you need to get your head examined.”

Moreover, if someone had asked Mr Janak the same question 30 years ago i.e. after he had spent a decade in this profession, Sir would have told that person with a greater dedication that he really needs to get your head examined.

He does not leave this conversation in between but even tries to explain why he believed all this back then.

Sr. Adv. Janak Dwarkadas comments that at that time he had the benefit and the privilege of working with and watching first-hand the uncanny wit of several senior counsels, the originality and functioning of the first principle of law, the clever advocacy skills on Intellectual Property Rights, Constitutional Law and other diverse areas of law by his fellow advocates.

Ld. Sr mentioned he was also very fortunate to witness the crafty and impeccable strategy skills of innumerable advocates, ‘Never saying no’ approach to every matter undertaken, the gentle and almost poetic form of advocacy and how once used to absolutely dominate the writ jurisdiction of the court with the masterful anticipation of questions from the bench with the inexhaustible energy and passion showcased by the sheer brilliance and auditory skills. He also remembered the extremely persuasive advocacy skills of visiting council’s from Calcutta and Delhi i.e. the inevitable Mr Ashok Sehgal And Siddharth Shankar Ray, who were two Bengalis and when they spoke, it was like Rasgulla and Gulab Jamun pouring out of their mouths.

For Mr Janak, all this was a galaxy full of superstars and such standards were far beyond his wildest dreams to set his foot before them and argue and yet here he was a poor substitute for all the greats gone by, who was trying to talking to everyone in this room about the art of advocacy.

Sr. Adv. Janak D. Das also reiterated that he is often told by parents of children who according to them would make great lawyers, to take him or her in his chambers. When asked why he or she would make a very good advocate, Mr Janak would be replied back to that he or she is very argumentative.

Mr Janak smilingly states it is very difficult for him to explain to a loving parent that the worst art about being an advocate or being considered to be a good advocate is that that one is argumentative.

For Mr Janak, the legal profession and inculcating the skills of a good advocate is more about being a good listener and even some more a good thinker. He further requests the audience to listen to his next few lines very carefully.

Mr Janak borrows the words of Bruce Lee (a famous Kung Fu fighter) who described Kung Fu as the art of fighting without fighting and therefore if he applies the same understanding it to the legal profession, then the art of advocacy is the art of arguing without arguing.

Sr.  Adv.  Janak  Dwarka Das contemplates, what does advocacy or the art of advocacy mean? In order to answer this question, he recapitulates the two passages which he found very interesting from a book called “Jeremy Hutchinson’s Case Histories”- by Thomas Grant. Jeremy practised criminal law and was one of the famous QCs and was considered the leader of the criminal bar in London in the 60s, 70s and 80s and later became the member of House of Lords. ‘What does he have to say about the art of advocacy?  He appropriately describes that-

“Advocacy is the art of persuasive and attractive speech.

Nowadays students must attend many hours of ‘advocacy training’. Indeed the main remaining role of the Inns of Court now appears to be just that. The upholding the integrity, the duty to the court, the overwhelming importance of preparation, mastering the law and the facts can all be taught but as Lord Birkett once pointed out how can one teach that skill that could win from the diarist.

John Aubrey when speaking of Lord Chancellor Bacon- the comment: ‘it was the fear of all who heard him that he would make an end’ or from Pitt the Younger when replying to an expression of surprise at the huge reputation of Charles James Fox: ‘ AH! But you have never been under the word of the magician’. There lies the Art of Advocacy.”

One more passage from the same book he quoted:

“Like conversation or theatre, the essence of advocacy is the impression it makes, at the moment it is given voice to the immediate audience to whom it is made. The words itself and the meaning it is intended to convey is only half the efforts. Put fine in words in the mouth of a poor advocate and those words can die on the tongue whereas a great advocate can conjure magic out of the proverbial laundry list.”

So this is the flavour of what the Art of advocacy is all about i.e. you can conjure magic out of bare laundry list.

Mr.Janak Dwarkadas quoted a short passage on advocacy and Constitutional Law from Fali Sam Nariman’s Book “God Save The Hon’ble Supreme Court“. He stated that the reason he wanted to quote this passage is that it tells us -How Advocacy is behind the development of Constitutional law.

He quoted “It brings out India’s Constitutional history in the making and it was in this struggle for the custody of Constitution between the Parliament and the Court that the true act of superlative advocacy was witnessed. The struggle ultimately resulted in the establishment of the supremacy neither of Parliament nor of the court but of the Constitution itself. This was accomplished through an innovative doctrine; now known as the Basic structure of the Constitution.”

This shows how advocacy plays a huge role in the development of the law itself whether it be a constitutional law or any other form of law which anyone practice.

He also elucidated that what we see in the court is the only one-tenth of what actually goes on in an advocate’s life. Advocacy in court is virtually the last mile. It is really the nine-tenth of the effort that goes in the Chambers where you sit, dissect, bisect trisect and look from all angles with the advocates:-

• Sit and look into the case from every possible angle.

• Call for the law

• Look at the facts

• Anticipate that what another side may argue or what judge may ask

• And do all their efforts to make the arguments in the court.

So that’s also a part of advocacy which is not visible to the outsiders.

The ordinary person may go back thinking what was so great about the attractive argument but the last mile is something has so much picking and discarding before it was floated in court.

LAWYERING AND ADVOCACY

Mr Dwarkadas highlighted the difference between Lawyering and Advocacy:-

Lawyering is taking a set of facts and applying the law to it whether it be a particular document or be a pleading.

 Advocacy, on the other hand, is something which takes those facts and law to a different level.

Advocacy begins where the lawyering ends.

He also emphasized that advocacy is not written in the briefs; it is what is outside the Briefs as where the ingenuity; thinking or application of mind as an advocate will come into play. The same brief would be read by another side as there are no surprises. Yet there will be one person who will be making the difference by winning and losing. This is because advocacy is not written into brief, it is outside it is in your thinking, ingenuity which shapes it.

Mr Dwarkadas accentuated that advocacy comprises a multifarious level of skills.

Advocacy is not just the art of speaking as masterful oratory is only one part of an advocate’s skill.

ROLE OF DRAFTING

Advocacy starts essentially from something as basic as:-

• Drafting;
• Pleading;
• Ability to research;
• Logical thinking;
• Problem-solving capacity;
• How to lead evidence;
• How to cross-examine and
• Ultimately persuasive arguments.

He compared the advocate to a salesman. As an advocate, he is also a salesman for Thoughts and ideas. Like salesman sells his products similarly the advocate sells his client’s case to the judge. It starts with drafting.

Mr Dwarkadas says his father also emphasized that drafting is the only way to learn how to be a good advocate. As the drafting of a pleading is the foundation of every case and if the foundation is weak then the superstructure can never stand.

Drafting actually helps an advocate to streamline his thoughts and streamlining helps the advocate to make his arguments more simplistic and logical. Drafting is something which enhances only with experience.  The more your thoughts are streamlined, the more you are simplistic.

The first thing you look at is who will be the party to the case that itself will tell you what will be the relief?

He went on to say that if we don’t concentrate on the party to the case we will not know what relief do we need to ask for. Even if we start from the other end that is if we need this relief who will we ask for these from. In a way both the process will make us think who will be the party? and what will be the relief and then we can think about what will be the cause of action.

It is not found in law degrees, law colleges it only come with experience.

Remembering his learning with Mr Iqbal Chagla, where Mr Nariman was also present who use to say don’t waste the time starting the plaint you get all of the witnesses to get hold of the client, dictate his proves whose going to give evidence, you dictate his proof to make its evidence, first lock it up to tell the solicitor to put it in a safe and then you draft a plaint and I tell you these are golden words because invariably when that matter went to trial where the proves may not have been dictated where the evidence would not be taken in advance, the client has gone into the box in our presence and said I said this only because my lawyer told me to say so.

So settling of the affidavit of somebody else I can only give you one piece of advice never ever dictate a pleading or an affidavit in the absence of the deponent please don’t do it. It’s the worst thing you can do to yourself.

It is not professional right and you can never ever imagine the facts please do not take it for granted that what you have been told by your solicitor are the facts please don’t take it for granted that somebody other than the deponent telling you what are the facts.

He pointed out, “These are the facts and the whole matter is turn-based on what’s the correct factual position so I urge you, people, not to make this mistake.”

ADVOCACY IS PSYCHOLOGY

A Calcutta senior counsel was asked if you have to describe this profession in one word would you able to do it and without batting an ideal I said yes the word was- psychology

He further says, ” I don’t think he was at all wrong I said earlier, we are salesman of thoughts and ideas and who do we sell are ultimate ideas to the judge and unless you can clay on the psychology of judge because ultimately don’t forget he is a human being he is not a computer he is not what that you put in the fact and out comes the result he will have its own set of leanings, prejudices, biases and I don’t mean it in a bad way but you know everybody we all have our own feelings we all are lean in favour of one or the other or we get prejudices in some form or the others depending on the subject depending on the matter, depending on the facts, depending on what is told to us.”

So, playing on the psychology of the judge becomes very important as per and which you must ultimately know is crucial to our profession. In the hotel industry if you asked somebody what are the three things which make a great hotel and they will tell you location, location, location.

If you asked me what are the three words that describe our profession I will say anticipation, anticipation, anticipation.

He said because at least we find at my stage I am spending more than 90% of his time not in trying to understand my clients brief as much as he is trying to anticipate what is going to be thrown at me whether that comes from the other side whether that is goanna come from the judge.

He mentioned he doesn’t know but the whole idea is he does not wish to be caught unawares and he doesn’t want to be caught floundering to the answer so you have to keep trying and thinking if you at the brief of the other side what is it that you would argue and that is the only way in which you can anticipate.

Citing two very small examples, Mr Nariman in the Supreme Court in a matter went from Goa. It was about the height of a particular structure whether it violated the building regulation or not whether the structure ornamental and therefore will not be counted in the FSI.

So, this matter reaches to Supreme Court. The Goa bench of High Court said that there is nothing wrong with the structure it may go beyond 21m but ultimately is the ornamental part. Therefore it is ok. The environmentalist carried it to the Supreme Court Mr Nariman was the in charge the whole team gone at Bombay, they want to sit with him, he used to be very busy in those days and finally when they got their 5min of their fame in their room.

Mr Nariman said, “how many trees have you planted so the counsel said no this is not about trees this is about some height.”

Mr Nariman said, “How many trees have you planted”?

The counsel said, “No this is not about trees this is about some height.”

“How many trees have you planted” he repeated, so the council tried to derail that direction and they said, “please don’t worried about trees it is something.” “ I want to know who is the land escape artist have you planted any tree.”

Some guys said, “yes we got a land escape artist from Hawaii.”

“You bring it here I want him here I want the plan tomorrow there.”

Finally, the plant produced yesterday and he looks at it “oh 30,000 trees fine”.   The conference was terminated and everybody rushes to the Supreme Court and everyone was thinking that we lost the case. The first question the judges asked was “ How many trees have you planted”. and the environmentalist was dismissing only when Mr Nariman said, “30,000 plants and this is the plan.”

After this Mr. Janak emphasized “This is psychology. This is anticipation and this comes with your experience.”

This is psychology. This is anticipation and this comes with your experience.

Mr. Janak cited another example in which  Mr Desai was against me. Ashok Desai as Sr Advocate said one of those who really read the mind of judges the best and we were for here afros Mr Vanwat who was leading him. So the two greats were opposite each other and it was about something to do with an ugly looking oil rig which ONGC his Italian clients and they wanted it back because the rated of rigs are grown up and ONGC doesn’t want to give it back because the rates are grown up. So this fight was going on and he came up before the division of bench of court and he says he thought we put up a magnificence sure we are shown all the contract their law this and that and it’s only the matter of time before he walked out with the order, but Mr. Janak mentions he had not anticipated what Mr Desai history on capable laws. He started his arguments by showing a master full blow-up of an oil rig which is one of the ugliest looking structure you can ever find on gods earth. This is not a playboy centrefold but he ends it up and he said that this is what the fight is about and what is this do it pumps oil from the sea. 24 hours its pumping oil from the sea and what does it do it saves foreign exchange. Every drop of oil that comes out saves foreign exchange and these Italian they wanted back.  He said we lost the case and its a reported judgement and in the judgement, you will find references to the structure and the oil rig which have no relevance to the contract or to the law.

BODY LANGUAGE IN THE COURT

He took the conversation about is the body language when you are in court it is very important that you maintain a degree of seriousness and you come across as a person convinced of your case but not over convinced nor should you sound like a smart Alake nor should you sound or behave like you pull over the eyes of the judge and I will give you an example there was a case and he said he won’t take any name here which went down in courtroom no. 13 for days on end it is of a fairly serious case under the companies act with regard to a particular scheme of arrangements between two companies where my clients have given certain confidential information to the transferor company who wanted to merge itself to the transferee company and we were objecting to the ground that we don’t know who this transferee company is.   We do not wish our information and technology to go to some stranger we are contracted with the transferor which should remain with the transferor. So please don’t allow this scheme to go through. This went on ring don for a single judge for a long time. Long time in the sense for the 6-7 hearing pretty long hearings. At the end of the hearing which was like into the sir rejoinder stage, I thought that the judge is finally turned in my favour but something happens in that point and we lost the case and that was am sorry to say and am won’t take any names the extremely smug expression on the face of my solicitor and his exchange of very particular knowing glance with the client. The saw it, and I could see in the eye of the judge it didn’t go down well he felt he have been taken for a ride and that to my mind is so so important. Any small small thing can make a difference

So important because when a case hanging in a balance which is so evenly poised any small thing like this any such small thing can make a world of a difference.

So, be careful about your body language in court that’s important to know. The second thing I want to talk about is your ability to simplify, simplicity, simplicity of thought and simplicity of expression. I cannot give you a better example than Mr Nani Palkewala.

SIMPLICITY OF THOUGHT

Emphasising on simplicity he said, “I cannot give you a better example than Mr Nani Palkhivala. I can tell you I have worked with him in two very heavy matters and what completely, completely I mean I would say I was completely I wouldn’t say shell shocked because that’s a very bad expression to use but I was so pleasantly overwhelmed and surprised when I saw how he would take a problem from us the juniors and how he would turn it around and explained it to the judge in the language which even a child would understand.”

To hear Mr Palkhivala argue in court he would get up he never opened his briefs. You can take it from me his briefs would come they would be tied. He would not open a single judgment it would all be there. Even in those days there only have books no Xeroxes. He didn’t have to he knew it all. He had the law at his fingertips, he had the facts at his fingertips and he would be able to decipher and degenerate a complete very very complex problem of law into something that was so simple.

He said, “I will give you one example we had a case going on of the mercantile bank merger with HongKong bank before Justice S.K. Desai one of the most brilliant judges we had. The regional director came and said, “Sorry this merger cannot go through.” We said ‘why’.

‘Oh because this company is not liable to be wound-up.’ Which company (the transferor company) so he said ‘what is winding up got to do with this scheme a merger.’

‘No, no please see this section, the section says a petition for an arrangement can lie only if a company liable to be wound up.’ So the ROC raises this point, Justice S.K. Desai looked at the section and he says’ I think there is something in this point. It says liable to be wound up but you are not insolvent there is no ground made up for winding up.’ How can I. this is never been raised never been thought of and believe it or not it looks so simple, and straight forward but we couldn’t find an answer? And this went on almost the whole day we were making no progress and the judge was adamant.”

In the evening Mr Janak went across to Bombay house met with Mr Palkhivala and we said this is the problem. These are the words and this is what the judge is saying. So he says ok, I will come tomorrow. So we said you know the fact. No, no it’s fine. It’s fine I will be there tomorrow. Next day he came and he just explained to the judge why these words liable to be wound up were introduced into the act and why they are nothing to do with the scheme of arrangement. It only meant that the companies who would otherwise or who were capable of being wound up under the companies act not that they ought to be commercially insolvent or any of those. They could come to the company court and seek a merger. It was we felt like a total fool. I’m not joking I was led by two seniors I won’t name them both experts in their fields. Both very highly regarded, both had the companies act by heart but we all felt like fools. In six minutes the matter was over. He just went and said that these words have no relevance to the case and that was it.

And there was another case of Kellick Nixon, which was like the volumes which Mr Janak Dwarka Das mentioned that he assisted him and the matter which went to Supreme Court. The question was whether a member who sold his shares can maintain a petition in oppression and mismanagement? The answer given by the other side was but the transferee is here so he can maintain it. The discussion here had, “So we said, no the transferee is not a member because the shares are not yet transferred to him. The member concerned sold his shares but he doesn’t have any interest in the shares. So we were like you know this is the good thing and we argued it and we succeeded.” The matter went to Supreme Court Mr Dwarkadas had a conference with Mr Palkhivala believe it or not 10 days before the matter went to the Supreme Court it was a huge volume brief.

“He told us I want just a 3-page note I don’t want anything more. We couldn’t reduce it to 3 we reduce it to 7. We gave it to him; he never got to read it, he never saw it.”

Mr Chagla was travelling with him on the flight. He never met him. Next day morning Mr. Dwarkadas tried to have a conference he was not available. He never met him, he reached the Supreme Court and in the Supreme Court, they was too busy shaking hands with every tom, dick and harry. And then item 1 was our matter. And for 45 minutes the explanation that he gave to the Companies Act. Ten days after the conference, the only conference which they had. He said he can assure you he had been in that case from day 1 from the drafting of the first petition but he thought that he knew nothing when he heard Mr. Desai expoundING on the Companies Act. The status of a member, the rights of a member, who can complain, what is oppression, what is mismanagement?

It was the most beautiful exposition and in the most simple language that you could ever visualize. So this was Nani Palkhivala and that is the relevance of simplicity.

Since we are talking of Nani, let me read to you something so well said about Mr. Palkhivala to give you an idea of the greatness of his advocacy and this is what Justice Khanna said about him after he heard him argue in the famous decision where the basic structure was and this I’m gonna quote

“the heights of eloquence to which Palkhivala had risen has seldom been equalled and never been surpassed in the history of the supreme court.”

So this gives you an idea when he said what I said earlier about Nani and his brilliance that he got the highest compliment from a great judge of the Supreme Court.

TRUST OF THE BAR

Few other points I wanted to touch which I’ll quickly run through now, it is very important to earn the trust of the bar as well as of the bench. Why, because I consider it to be an investment. It goes to reputation and having a good reputation or a dependable reputation is very very important to your success and sometimes even to the success of your client’s case because very often a matter can turn on the not only the facts and the law of a particular case, not only on the basis of the skills of the advocacy but sometimes even on the reputation of the counsel himself.

And however much you may feel how is it relevant I can tell you with an experience that it is very relevant and it does make a huge difference to a judge as to where that argument is coming from and more importantly who is making that argument.

Mr Janak went on to explain that, “But when we talk of trust and reputation what does it mean, what it means is that every single day that you are in court, you need to earn that trust. And you can only earn that trust and that reputation if you consistently do not band the facts and do not bend the laws. It is better to say I don’t know rather than fire off and say this is what the law is. If you are court out this is gonna against you for a very very long time. And let me tell you judges do discuss lawyers and how dependable or not they are. I said ultimately they are also human beings.”

STAGES OF PROFESSION

Now another point he wanted to talk about or talk to you about was that different stages at which you are in your profession.

In the beginnings there are no shortcuts and there are no shortcuts at any stage but in the beginnings, you need to be a master of your brief, you need to know every single page of the brief and every possibly looked up every case laws that you can think off then only you can be of assistance to your senior. But that rule does not necessarily hold good to later on because as much as a junior you need to spend time on your brief and looking into your papers as a senior you need to have time away from your brief and away from your papers because you are only having your thinking cap on and you need to only keep malign the problem in your head round and round and trying to anticipate and trying to find the best argument that you can make to sell your clients case.

So there are different stages at which the advocacy skills operate. And as he retariates, in the beginning, don’t try to be what somebody already has spent 20 years doing. Just do what you are supposed to d,o read your brief, master it, look up the law and be of assistance to your senior. And wait for those 15-20 years to come and you can take it to the next level.

WRITTEN SUBMISSIONS & DATES AND EVENTS

Mr. Dwarkadas said he wants to talk about an important aspect which is developing now but which Mr Naraiman again has been a past master off, and that’s written submission and list of dates and events. He said it is more relevant in the context of today. It is because judges do not have time to start dictating judgments right away they very often reserve judgments, they take them home to think about, they have got other matters on hand they got a whole list of cases on that particular day they got to run through the board etc.

So very often it becomes extremely crucial that you work hard and not hard I would say very very hard on two things list of dates and events and this I would say you work on whether you are gonna give it to judge or you are not going to give it to the judge.

He said he can assure you, it will help you, know the end, to put your thoughts in order again, to get a sequence and you will start seeing things when you put them down in the form of dates and events in a manner which you may not have ever seen even before. It’s very very important. Couple with that written submissions equally. Please do not ever smuggle into a written submissions something you have not argued without the permission of the court. Please do not try to add cases which you never have shown to the court. Please do not try to put in arguments which you never made in open court. Doesn’t turn you in any brownie points nor will it help you in your reputations. If at all it will do damage to your reputation.

So be careful if you are required to give submissions be very clear that you stick however much your attorney or your clients whoever wants to push you to let them do it. He said he will not be a party to it. He said can only tell you from experience I have work in several matters with seniors like Mr Nariman and

“So be careful if you are required to give submissions be very clear that you stick however much your attorney or your clients whoever wants to push you to let them do it. I will not be a party to it. I can only tell you from experience I have work in several matters with seniors like Mr Nariman and I cannot tell you the number of efforts the number of correction, recorrections, re-re corrections and re-re-re and whatever you want to take it to the level of corrections that Mr Nariman used to make only on his list of dates and events. I have seen it with my own eyes and I used to often feel what is this man doing, I mean is he crazy I mean he did that yesterday and today he wants to redo the whole thing but I’ll tell you when that piece of paper is finally presented the judge doesn’t need to open a single piece of paper, he doesn’t need to look at the record. It will have everything that one could ask for from Mr Nariman side. Whether it be the facts, whether it be a law without twisting anything in a manner which should be incorrect. So this is the importance and entire matters have been won or lost on the basis of the correct reproduction of the list of dates and events.”

Mr Janak further emphasised,

“So that is an important skill, it’s a skill set by itself when you talk of advocacy and the multifarious skill sets that I have mentioned this is also one of the skill sets which you can develop and which will stand you in good stand.”

LAST BUT NOT THE LEAST

And last but not the least his final advice to all of the budding lawyers that:

“I can only give you is you will learn the art of advocacy only if you Observe! Observe! Observe! That’s what you should be doing when you go to court and you see others arguing, you will learn what to argue and more importantly what not to do.” 

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