It is now widely believed that the National Law School model has not contributed to building talent at the bar as litigating lawyers and if at all it has, it is at the level of constitutional courts alone. The author expresses concern for building talent at the trial court level and High Court level and has suggested a six-year course which will diversify the composition of the bar at the trial court level, that is where most cases begin. These suggestions are worthy of consideration by the Bar Council fo India.
ON August 17, 2019, the former Chief Justice of India Rajan Gogoi while speaking at the 7th Annual Convocation at National Law University, Delhi (NLU-D) stated that there was “a need to look at the role and functioning of lawyers and understand why a law graduate’s natural choice is not the legal profession in spite of great attractions and opportunities.” After advising graduates to not let their minds be swayed by the corporate world”, he observed that the five-year model had not brought about the desired transformative change that was expected and stated that the “highly attractive careers at the Bar and Bench” needed to be highlighted.
Presuming that the term “legal profession” had been used by the former Chief Justice in the context of litigation or litigating lawyers, it is respectfully submitted that the use of the words “natural choice” is in fact misleading. The term “natural choice” would in the author’s opinion mean the obvious choice of a law graduate to enter the “legal profession”. Figuratively and literally speaking, the choice or decision should be in black and white with no shades of grey.
However, in the author’s view, for a choice to be “natural” or “obvious”, it has to be logical, pragmatic and above all rational. The choice to become a litigating lawyer is neither natural nor obvious. It is illogical and irrational. This decision lacks pragmaticism and certainty and it is often plagued by several misconceptions and disappointments. Litigation is not for the fainthearted. It is for those who have the audacity to think that their love for the law will enable them to get through their otherwise mundane existence.
Though this view would seem radical or even scandalous, it isn’t really far from the truth. It is especially true for those who have no backing or godfather in the legal system. Generational nepotism is perhaps one of the biggest challenges in the legal system. A first-generation lawyer who has to work twice as hard to break into the cosy blue-blooded club.
Therefore, most law graduates have absolutely no idea of what they are getting into when they join the bar. This even includes the ones who intern with a counsel or a law firm (voluntarily or mandatorily). This is because of a variety of reasons ranging from the lack of practical exposure of how the system works to the absence of the use of technology in law schools.
Another problem that is creeping in is the lack of mentors in the legal system who can guide junior litigators through the process. In a recent column published by Justice N. Anand Venkatesh, his Lordship was of the view that the senior-junior relationship is “slowly on the verge of death”, therefore according to his Lordship, “There is a real urgency for the Bar Council to take stock of the situation and re-introduce compulsory internship or experience as a Junior Counsel/Associate with some office for a minimum period of time, as a pre-requirement for starting their independent practice.” This according to his Lordship is necessary as the sources to acquire the skills of advocacy are slowly reducing.
Though the problematic expression “this is what you don’t learn in law school” is often loosely used and thrown at junior litigators who join the bar, there appear to be very few persons who are actually putting forth solutions on how to deal with the problem.
Therefore, the author through this column proposes that one such way in which this problem can be redressed is by establishing a law school for litigation in India. At the outset, the author would like to clarify that this law school should not in any way be modelled as one of those mushrooming “National Law Schools” that are often symbolised as elite institutions that have no place for “regular students” who study law in “regular colleges” affiliated to traditional universities. Therefore, it is imperative that this law school should be unique and unlike any other.
Institute of Litigation Studies of India (ilsi) – A Model Institution
The law school should be named the “Institute of Litigation Studies of India”. The objective of the Institute should be to promote and encourage quality and ethical litigators and enhance and promote the art of advocacy not only at the levels of the Superior Courts of Record but also in the Trial Court. The institute should advance the rule of law and should pledge to promote and enhance the ethical practice of law.
Therefore, it is important to have a carefully designed curriculum to achieve this objective. A wholistic approach is required to be incorporated into the curriculum in order to enhance and maintain standards and quality. However, before broadly outlining the course curriculum, it must be emphasised that the Institute be an inclusive one that should essentially promote persons of economically weaker sections of society and should especially promote those students who aspire to be first-generation litigators.
Seat allocation and admissions
60 % of the seats should be kept only for scholarship students from economically weaker backgrounds and 40 % of the seats should be regular seats where students will have to pay the full fee of the course. Out of the 60 % mentioned above, three-fourth of these seats should be reserved for students from vernacular backgrounds whose medium of instruction in school has not been English.
To illustrate, say the total number of seats is 100, 60 seats will be scholarship seats. Out of the 60 seats, 45 seats (three-fourth) will be reserved for students from a vernacular background. The raison d’être for promoting students who are not proficient in English is simple. Most students who study in vernacular schools are from rural and semi-urban areas which do not contain Superior Courts of Record.
The students from these areas practice in Trial Courts in their respective District or Taluka in which the language of the Courts is the local language of that particular State. There should be no reason why only law students from large megacities and metropolises should have access to quality legal education. Too much attention has been given to the quality of the bar in Superior Courts of Record and the quality of Trial Court litigators has been virtually ignored. Therefore, it is essential that the quality of advocates emanating from the Bar at the District and Taluka level should also be of superior quality.
The admissions to the institution will be based on a written test and oral interview. A student from an economically weaker section, if so selected, will be given the option of availing of the various scholarships offered by the institution or other institutes in collaboration with this Institution. But preference should be given to first-generation lawyers who have neither a parent, grandparent or sibling in the legal profession at the prevalent time.
A broad outline of the course curriculum
It is proposed that the duration of the course should be for a period of 6 years. This would be a slight departure from the 5-year course. The reason for this is simply because the 5-year course has unnecessarily compressed two degrees: the general graduation degree and the L.L.B. degree (of three years each) into 5 years instead of 6 years.
The 5-year model is crammed with too many subjects with too much theory which gives no time to appreciate and understand the practical aspects of law and litigation. Therefore, a course with a 6-year duration would give enough time and space for students to whole their skills as litigators and more importantly develop as wholesome and confident human beings.
The First-year should be divided into two semesters. The first semester should be dedicated to grooming a student irrespective of her background. It should be fashioned on the lines of Finishing Schools that focus on etiquette, manners, hygiene, soft skills etc. When it comes to language, for those students who are not conversant with English, an intensive spoken and written module should be developed particularly for these students like the ones conducted by Goethe-Institut or Alliance-française.
The module, however, will be supervised by faculty but will be conducted only by the students who are fluent in English and have completed their formal education in an English medium school. Similarly, an intensive training module should also be prepared for those students who are proficient in English but are not fluent or cannot speak or write in Hindi or any other regional language. These modules should again be conducted by students who are fluent in Hindi or a regional language. The idea behind this module is to promote multilingualism.
It is important for an advocate to be fluent with a minimum of two languages depending on the region in which she practices. The second semester should focus on public speaking, body language and research methodology. The modules should offer debating, dramatics, creative arts modules and should mandatorily consist of subjects such as psychology and the study of micro expressions, political science, international relations and economics, ethics including legal ethics.
In addition to what is mentioned above, while studying modules of research methodology, the students should also be familiarized, with legal software’s, app and cloud-based systems, video conferencing services and regular everyday applications such as Microsoft office.
The Second-year should be dedicated to the following subjects: legal history, Jurisprudence, Interpretation of Statutes, Constitutional Law, Human Rights and Public International Law. More focus and attention need to be given to these subjects especially Constitutional law, Human Rights and Public International Law since these subjects are “Grundnorms”/ “basic norms” or law from which all other laws develop.
Subjects like Constitutional Law and Public International Law have to be read with subjects like history, philosophy, political science, international relations etc. and therefore, due to the vast expanse of these ever-evolving branches of law special attention needs to be given to them. Through the subjects in the second year, special focus is required to be given to the concept of Rule of Law and its importance and promotion.
The Third-year should cover substantive laws including commercial laws, labour laws and criminal law. The method of teaching in both the second and third-year should be the case law method by studying these subjects through reported and landmark decisions. 5 cases per semester should be selected. The evaluation will not be done through a written examination, but it will only be done through the presentation, case comments, moot court presentations and re-enactment of the judgments, where students take the role of counsels and judges.
The Fourth-year will be divided into three trimesters. The first trimester of the Fourth-year should focus only on procedural laws such as Civil and Criminal procedural laws. However, this year, rather than using the case law method, the subjects should be taught using practical methods. Students should be divided opposing groups or pairs and should be taught how do draft a plaint, written statements, petitions, appeals, interim applications, affidavit in replies, how to prepare a brief, how to mark documents, prepare affidavits, evidence affidavits, examinations, cross-examinations etc.
Evaluation should be based on the work done by each group. For instance, if one group of students do not disclose the cause of action while drafting a plaint, the opposing group can file an application under Order 7 Rule 11 for rejecting the plaint. The group that does not disclose the cause of action should be marked negatively and the group that files such an application can be given a positive evaluation.
The second trimester should focus on Alternate Dispute Resolution and Online Dispute Resolution. Apart from being introduced to arbitration, mediation, conciliation negotiation, students should be trained in various methods and techniques of ADR and ODR. This trimester should also give special attention to legal aid and filed work through legal aid camps particularly to give students an idea on how legal aid works in the grass root levels.
A group evaluation will only take place in the third trimester, where students will be expected to settle a mock dispute with a med-arb clause (a combined arbitration and mediation clause) within a period of 15 days, a deal negotiation within 7 days, a community mediation within a period of 10 days and an entire arbitration proceeding up to the passing of an arbitral award within a period of 30 days.
The Fifth-year should be divided into a short semester of two months and a long semester of six months. The first semester should cover client counselling. The module should cover various aspects such as how to handle and speak to a client, the method of quoting fee, ethical dilemmas i.e. when to accept or not accept a matter and above all, how to deal with a cantankerous client.
Students should be evaluated by having specific mock client counselling sessions with role plays where students themselves act as advocates and clients. The second semester should be dedicated to conducting a mock trial within a period of 6 months. Students will have the option of conducting either a mock Civil Trial or Criminal Trial.
The students should again be divided into groups and will be evaluated as a group. In the mock Civil Trials, pleadings should be completed within two months; the trial should be completed within three months and the final hearing and judgment should be completed and delivered within one month. The judgment will be delivered by one of the group members who will act as a judge. In the Criminal Trial, the entire Trial should be conducted within four months and the judgment should be delivered within two months.
The Sixth-year will again have three trimesters. The first trimester will focus on mock Civil and Criminal Appeals in the District court and mock Writ Petitions in the High Court. Both the mock appeals and writs have to be drafted, argued and decided by the groups of students within a period of three months.
In the first trimester, students will also be told to start preparing their proposals for their dissertation topics and would have to submit these topics by the end of the first trimester. The dissertation topic would be confined to a critical analysis of a judgment of either a High Court or the Supreme Court of India.
The second trimester would consist of a mandatory internship either at the District Court or the High Court with a practicing advocate of the standing of up to 15 years or with a Law Firm for a period of three months. And the final trimester should be dedicated to the completion and submission of the dissertation.
Practical difficulties-Funding and Faculty
Though the proposition of establishing such an Institute is quite attractive, the major difficulties that would come in its way for implementation would be adequate funds and lack of specialized faculty.
When it comes to funding, out of the box thinking would be required to generate funds. Institutional autonomy would be the key to generate adequate funds. However, a mix of Union Government funding along with private funding would have to be adopted. Perhaps one way of generating funds is to persuade senior counsel and/law firms including litigation firms to generously donate a portion of their monthly income/profits towards the institution.
Legislation coupled with tax incentives could also be another way to ensure that a small portion of monthly earnings of senior counsel or law firms is apportioned towards such an institution. Another way would be for students to enter into a contract with the institute by which they are obligated to donate a minimum percentage/ proportion of their earnings after 10 years of practice.
The other problem is that of faculty. While there would not appear to be any dearth of faculty for the proposed non-legal subjects to be taught in the First-year, the real difficulty is attracting faculty particularly to train law students for litigation.
One solution would be to appoint retired High Court or Supreme Court judges as full-time faculty members to teach in the institution along with academicians. But an institution such as this would also be enriched with the experiences and knowledge of practicing advocates from the bar. Therefore, the institution could also open its doors to practicing advocates with a minimum of 15 years of experience to teach and train students as full-time faculty members. Attractive contractual terms or salaries would have to be offered to enable a practicing advocate to quit the profession and work full time at such an institution.
The author is aware that the conceptualization and establishment of such an Institution for litigation will not be without certain hurdles. However, the author certainly hopes that his pitch for such an Institution may someday be considered at the highest levels of government.
Emphasis on the wholesome development of students of law would go a long way in promoting ethical practices and standards which are desperately required in the profession. After all the protection and upholding the rule of law is the hallmark of any legal system and therefore it is essential that this concept in engrained into litigators at the very inception.
Therefore, unique and out of the box thinking along with heavy investment in legal education particularly for students who intend to be litigators, will go a long way in raising the standards of litigators at the bar and would, in turn, would positively enrich both bar and bench.
[The author is a practicing advocate at the Bombay High Court and the NCLT]