Fali Nariman's "Before Memory Fades"

Just completed reading the autobiography of one of India's most successful and well-known constitutional lawyers - Fali Nariman. I was looking forward to buying the book and reading it and when one of my friends mentioned that it was available at the High Court book vendor's stall, I immediately picked it up. I had spent my first year of practice in the Supreme Court with a senior counsel during which time I mainly observed well known senior counsels argue and would be fascinated by some of their arguments. Nariman was definitely one of the senior most counsels then and still is and so I was curious to find out how he got to where he had and to learn more about the person.

His autobiography "Before Memory Fades" however, was a bit disappointing. It starts off with his experiences in the chamber of the legendary Jamshedji Kanga and what follows is a series of witty anecdotes of life in the courts, anecdotes of some judges and other lawyers and generally of life in the Bombay Bar, of which he was a part of. While these anecdotes and one-liners are amusing, this narration reminds of how my other counsel friends and family from Bombay often talk - only of anecdotal narration of the Bar, of the judges and the quirkiness of the legal fraternity and not really about themselves and of the issues at hand. So, while this chapter was amusing, it did not give me any insight about Nariman as a young lawyer who might have had his own fears and failings and how he waded his way through the Bar.

From the chambers of Jamshedji Kanga he immediately catapults to handling important commercial matters by himself or assisting top counsels. We find Nariman then moving to Delhi as Additional Solicitor General. He writes about the emergency period and his resignation in protest of the emergency, but surprisingly while much followed this important decision of his, there is not much written about why he took such a decision. Similarly, Nariman writes about the time that he was offered judgeship in the Supreme Court, and he declined the offer. A reader would be keen to know why a counsel like Nariman refused judgeship, but we get no insight into this decision of his and why he refused.

The Bhopal case has been discussed in detail as one of the chapters in the autobiography and is largely a reproduction of the exchange of articles and letters that appeared in various journals and newspapers between Nariman, Upendra Baxi and some journalists and activists. For those who have not read these pieces elsewhere it is interesting to find them reproduced here, but if one has read them, then this chapter offered no new insights in the Bhopal case. The discussion on Bhopal, like Nariman's discussions in several other parts of the book, is about the applicable law such as tort law and criminal liability, but in an autobiography one is probably looking to find out more about the person and what he thought of when he took on the job of representing Union Carbide in a case where thousands and died thousands more injured.

The book reads like a narrative of Nariman's various achievements which are incredibly impressive but overall made the autobiography quite dry. I was looking for more - perhaps a more fuller book which gives you some insight about the person that Nariman is, a deeper insight into his family and professional life which unfortunately I did not find.

Difficult Clients

I am sure every lawyer has their share of difficult clients - I just had to deal with one recently and it was a very upsetting experience. It just got me thinking about the client-lawyer relationship and especially how one should deal with divorce clients. Since I have a large family law practice, the chances of handling difficult divorce clients are even higher.

Who are 'difficult' clients? I would say they would be clients with some of these qualities:

a. Those who are never satisfied with the results in your case, even when you have got good results

b. Those who have gone to or continue to take advice from several different lawyers

c. Those who always haggle over the fees, despite being able to pay

d. who have unrealistic expectations about the outcome of the case

I found some interesting resources on handling difficult clients, which were quite useful. However well you may out in systems to deal with such clients - such as proper and clear billing terms and terms of engagement, returning calls, ensuring that all instructions are in writing etc., there finally comes a time when you may have to take the call as to whether to continue handling their matters or retiring from the case. As much as I was feeling quite bad about asking my client to go to another lawyer (as her case was almost going to be settled outside court) there was no way I could continue representing her, as every interaction with her was just so upsetting and antagonistic. When things get to such a level, to remain sane and to continue to be able to love your job you need to take this difficult step.

senior counsels - do we need them?

Every time there is an important hearing or a difficult case, a question that often pops up, is whether one should engage a senior counsel. Sometimes clients ask you, sometimes it is the advocate who has referred the matter to you or sometimes you think of it yourself. Earlier, clients would ask me to engage senior counsels for the main hearings in their cases and I would go by their instructions. Sometimes I would myself recommend engaging someone if I felt that the Bench would be difficult and maybe a senior counsel's appearance would help. But I have had such difficulty with senior counsels that by now I am of the firm view that I would not engage any senior counsels, unless the client was extremely insistent.

Today I was in the Madras High Court for a fairly important hearing in a company petition and my colleague in Chennai and me toyed with the idea of engaging someone from the Madras Bar who would be good and someone whom the judge would be familiar with. Finally, we rejected this plan as his fees were too high and we were unable to get the counsel we wanted - and I decided to argue the matter myself. Turned out that the Respondent had engaged a senior counsel, but that made no difference because when the matter was argued, it made no difference to the judge that I was not a senior or even that I was not from Madras and we got the order that we wanted!

I have come to the conclusion that its just too much effort to engage a senior counsel, as first of all most of the good ones are too busy and don't have enough time to go through your papers, have no idea of what the client really wants and don't know the facts as well as you do. And in court, while you may be ready with the answers to all the questions that the judge may pose to the senior counsel, you are left with only tugging at the senior counsel's gown (or "pulling someone's pallu" as Avi Singh said!) trying to tell him/her what to say!

And my positive Madras High Court experience today, gives me all the more reason to stick to my decision...

Victory! My radical and slightly far-fetched (although I say so myself) arguments under SICA worked and I won the case! The judge passed an order stating that Section 22 of SICA would only be applicable in execution proceedings against a sick company's properties and not against directors of the company or against any other action. and with such observations, the execution proceedings could go on.

I think this is a situation where you know that the argument you have is not really valid but no harm using it as you have nothing else in your favour - and lo and behold, it works.

Its been a long and tiring day - literally running in the court corridors. Fun, but thoroughly exhausted.

Excitement

Today was exciting. I had a case posted for final hearing, which I thought was quite a weak case and I had virtually no legal grounds in my defence. This was a petition seeking suspension of execution proceedings under Section 22 of the Sick Industrial Companies (Protection) Act ("SICA") against a company that had a reference pending with the BIFR. My client had initiated execution proceedings against the company, and there was no getting away from the clutches of Section 22. Section 22 was very clear - all proceedings for execution against the company's properties ought to be suspended until proceedings before BIFR are concluded.

I was quite prepared to give up on the matter, but just as I was leaving office and doing my final reading of the commentary I came across a judgement of the Madras High Court which held that the ban on continuation of legal proceedings against the sick company did not offer any protection to the directors of the company, against whom proceedings could be carried on. And in my case, execution court had initiated proceedings against the Director of the company! So I had a wee bit of a legal argument there. I was not sure how the judge would receive it. Came to the high court and while I was waiting, I met with an old friend and senior from college, Subramanya, who is absolutely wonderful at thrashing out ideas. While we were waiting in the corridors, we discussed the Madras High Court judgement threadbare, read Section 22 of SICA till I could recite it backwards, read up the relevant provisions of the Civil Procedure Code and viola, we had quite a decent legal response - he gave me the confidence that my argument that Section 22 would not apply to directors of a company was worth a shot!

When the case came up for hearing after lunch (during which time I had the chance to look up a few more judgments), the Petitioner's counsel was all set to have the petition allowed in his favour. But when I argued on my new legal point and submitted all my judgments, the judge was a bit taken aback and so was the opposing counsel - and when I read through the judgments the judge was completely on my side! In a few minutes the opposing counsel was making all kinds of excuses for an adjournment from saying that he would make an application for an amendment to saying that the petition was drafted in a hurry and therefore he needed time to respond, with the judge having a hearty laugh. Nevertheless the case was adjourned to Monday. Monday is another day and we'll never know what will happen. But the excitement of suddenly finding a toehold of an argument, and then building it up to give you a strong legal ground from a point where you feel you have absolutely no case, is just something else. This is why I love being a lawyer!

And in the corridors of the Karnataka High Court, its great that you bump into friends and colleagues who will argue with you and test you on your new found arguments, helping you to strengthen it - there is no gender angle at play, and its a real camaraderie and a shared passion for the law that makes your day.

taking things lightly

I sometimes get so mad when I see young litigating lawyers (by 'young' I mean those just out of law school or with just one or two years of experience at the bar) who take court appearances so lightly. Whether it is preparing for arguments for an interlocutory application, for final arguments preparing for cross-examination of a witness, I have seen young lawyers completely unfazed without doing much preparation. Its true that very often they may not be the ones doing the arguments or the cross-examination, but that does not mean that one is not prepared - with all the facts, case-law and of course the questions, just in case the senior lawyer is held up and the judge is just not willing to give you an adjournment. I used to be nervous as hell before any important court hearing, and even today although I don't get nervous, I still get worked up enough to stay up and prepare.

But now I see that a lot of lawyers do not really take any trouble to prepare perhaps because they do not think that they will be required to argue the matter and that their senior would be around to save them from any sticky situation! In fact some of my most exciting moments in court in my first years of practice were when I was asked to argue when the senior lawyers were not available and I would wait for those opportunities.

On the other hand I have also seen a lot of senior and older lawyers also taking things very easy and not really taking the time to read the file, talking to the clients to know the real facts and to prepare their arguments and evidence. In the city civil courts in Bangalore I have often seen very senior lawyers conduct cross-examination of witnesses impromptu and just using the affidavits filed by the witnesses. It may be that they are doing this on an everyday basis and they get really good at it, but it is also a danger that one must be wary of.

As for me, I have an important cross-examination to do for tomorrow and a hearing at the high court. Am I prepared enough? Not as much as I would have liked to, but I still have the whole night and the morning hours.

starting this blog

Finally got down to starting a blog after thinking about it for so long. I have had so many random and serious thoughts about my practice, my work and my experiences at the bar that desperately needed to be written down and maybe shared. So here it is!