First Lesson of Advocacy: Make an Impression on the Judge

A judge's experiences at the beginning of his career have stood him in good stead and shown him the way forward in treating juniors. This includes not scolding any lawyer when they corrected him, thanking and appreciating them, and recusing himself if he ever lost his temper in a case, writes JUSTICE YATINDRA SINGH (RETD.)

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QUINTIN Hogg was a British barrister, a Conservative politician, and later Baron Hailsham of St Marylebone. He also served as the Lord Chancellor. He wrote his memoirs in the book, "A Sparrow's Flight – Memoirs".

Lord Wilfrid Arthur Greene was Master of the Rolls and known for his work in the field of administrative law. He formulated two important principles: the Wednesbury doctrine of reasonableness (Associated Provincial Picture Houses Ltd Vs Wednesbury Corp (1947) 2 All ER 680) and the Carltona doctrine that says that the duties imposed upon ministers and the powers given to them are normally exercised under the authority of the minister by responsible officials of the Department (Carltona Ltd Vs Commissioners of Public Works (1943) 2 All ER 560).

Memorable Memoirs

In his memoirs, Hogg talks about a useful lesson learned from Lord Green over dinner.  At that time, he was an inexperienced junior at the Bar.

"GREEN: Supposing you were instructed in a case where you had two points to argue, both of them bad, but one worse than the other, which would you argue first?

Hogg: I suppose I would argue the less bad of the two.

GREEN: Quite wrong. You must argue the worse, and put your very best work into it. Eventually, they will drive you into a corner, and you will have to admit defeat. You will then say,

'My Lords, there is another point I am instructed to argue. But I am not quite sure how to put it.' And you will then put the better of the two arguments, but not quite as well as it could or should be put.

(After a little while) One of the old gentlemen on the Bench will interrupt you. He will say, But surely Mr. Hogg, you might put it in this way. And he will put it exactly as you really ought to have put it in the first place. At that stage, you will lay your papers on the desk before you. You will raise your eyes to the ceiling. And, in an awestruck voice, you will say, 'Oh, My Lord, I do believe…' And then you will be at least halfway into winning your case."

Anecdotal Memoirs

This was quoted by Fali S Nariman in his autobiography, "Before Memory Fades". It not only contains anecdotes from his life but also what he heard and read. I wish I had read it when I started practice, but it was published in 2010 when I was about to retire.

Nariman's autobiography is one the best I have ever read. If you haven't, then please read it. At the start of my career, I learned this advice, the opposite way. Nevertheless, I did learn. 

Justice RM Sahai was a good judge. He not only granted relief but also expanded the writ jurisdiction. He was elevated as the judge of the Allahabad High Court on January 27, 1976, and later to the Supreme Court (January 11, 1990, to June 24, 1995). I have fond memories of him. He has written his autobiography, "A Lawyer's Journey" – which is worth your time and money.

Prior to elevation as a High Court judge, he was standing counsel and I had argued a special appeal (intra-court appeal) before a bench presided over by Justice GC Mathur and Justice KN Seth, which was opposed by him. When the bench allowed the appeal in my favour, he not only praised me but encouraged me.

Arguing a Case

In the early days of my career, I argued a case before him. He was sitting singly in Court No 1. It was a case where the parties were distantly related and some rights were given to our client in a family settlement. It was given effect to and accepted by the consolidation authorities in our favour. RN Singh appeared for the petitioner and I was for the successful respondents.

The case was taken up after lunch. I could not reach in time as I was in another court. The list was revised and Justice Sahai did not adjourn the case. He was impressed with the arguments and started dictating the judgment, allowing the writ petition. When I was told this, I took the permission of the court in which I was and ran towards Court No 1. I barged into the courtroom and made mention that the case was concluded by the Supreme Court decision in Kale Vs DDC AIR 1976 SC 807 = 1976 (3) SCC 119.

However, before I could understand, Justice Sahai lost his temper and he started scolding me. I had never been scolded or punished in my life, during my student career, or in the house. My parents never believed in it. When the scolding went on for some time, I could not take it anymore and I broke down. As my tears flowed, it rattled Justice Sahai and he adjourned the case for the next day.

Good Advice

My father advised me to request the judge to recuse himself, but being young, neither could I suggest that nor did the judge offer it. The next day, the arguments were heard and judgment reserved. The writ petition was allowed against me. It is reported in Ramdeo Vs Beni Madho (1982 All LJ 1163 = 1982 (8) ALR 691). I think that the case was wrongly decided, but not everyone has the financial capacity to go to the Supreme Court.

I couldn't understand why such a good judge lost his temper, especially when I told him about the development of law that he didn't know. I thought he should have appreciated me. But this was my mistake.

The family of RN Singh was very close to us. He was much senior to me and I was quite free with him. After the judgment, I asked him, why such a good judge had lost his temper. He explained and pointed out my mistakes.

Firstly, he said I was not in a fit condition during the dictation of the judgement, especially when I did a 100m dash to come to the court. The judge was dictating the judgement. I should have sat down, composed myself, and waited till the judge noticed me or made mention after the dictation was over.

Secondly, the more serious mistake was the impression I gave to the judge. It appeared as if he was not up to date with the case law and it sounded rude. Even if judges are not up to date, this was no way to show it.

Fundamental Lessons

This incident taught me the first and the most fundamental lesson of advocacy: always give the impression that the judge knows more than you and never commit the mistake that I did.

This is also the point made by Lord Greene but in a different way. It also taught me other lessons that I remembered when I was elevated.

I never scolded any lawyer when they corrected me. I made it a point to thank and appreciate them. And whenever I lost my temper in a case, I always recused myself.  The lawyers should never get the impression that I may be biased because of the incident.  I also apologised for my mistake.

Nevertheless, if you are sufficiently senior, sometimes you may softly show a judge his place. But that, at some other time.

(Justice Yatindra Singh is a former chief justice of the Chhattisgarh High Court and a senior advocate in the Supreme Court of India. The views expressed are personal.)