Why Don't Lawyers Run?

I just finished running the World TCS 10k run in Bangalore. It was a fantastic run with more than 10,000 people participating and as I was running past our beautiful high court building and grounds I started thinking to myself - why don't lawyers run?

Let me rephrase this - why don't Bangalore lawyers run? Of course, you do have a few stray lawyers running regularly in Bangalore but running has not really taken off in the legal community the way it has become a big sport with the techies for example. Running the TCS run both this year and last year and running for most of last year made me realise what a wonderful and free sport running is. I was never a runner, having never run before, having never played any sport before and actually was even averse to sport! But I got introduced to Runners High, a fantastic runners group in Bangalore which showed me that anyone can run if they want to.

Running is one of the most inclusive and equalising activities I know. Which makes it particularly important for the legal community. The legal community is so obsessed with maintaining hierarchy - senior lawyers do not socialise with junior lawyers, high court judges do not sit with district court judges and men and women from the Bar rarely hang out together. You do not see  lawyers and judges interacting socially with paralegal staff, clerks, stenos, court officers, interns and students. Atleast the legal community in India does not know how to interact with each other in any other way and we reproduce the same oppressive hierarchies in our practice.Sport is a great way to break such hierarchies and barriers. Sometime ago, the Delhi and Bangalore law firms started inter-law firm cricket matches. This was followed by the a Football tournament in Bangalore for law firms. Are they inclusive? Of course not. They are largely men's teams, with very few token women participating, if at all. They are only open to lawyers working in large law firms, leaving out the whole sections of individual practitioners, litigators, civil society lawyers, staff and judges. And of course they would leave out all those who are not sporty enough or who do not know how to play football and cricket.  Senior Counsels and Judges are called to inaugurate the event and for giving away prizes, never participating themselves.

Running does not have any of these barriers. You do not need any expertise to run. If there was a law run which had men, women, senior citizens, children, people with disabilities, lawyers, judges, civil society lawyers, court staff, students, interns and clerks participating, I am sure it would not only be a great day out in the park, but would also change the stodgy and conservative way our profession is practised. Running is an equaliser, like no other sport. After yesterday's  run, random people came up and spoke to me about their run, and we chatted about the route, our timing etc. It was so exhilarating to be able to share one's triumphs and pains with a fellow runner who understands them and as Murakami put it so beautifully in his piece in the New Yorker, that there's a feeling of solidarity and unity that carries you all the way to the finish line! 


 And finally, running is a great way to de-stress! It's such a great way to forget about pestering clients, bad days in court and missed interim order opportunities. Nothing offers fresh perspective than a run in the park and It also increases productivity!We need something that brings about this feeling of true solidarity and unity, and what better way then a law run?

Senior Counsels - Where are all the Women?

The Hindu carried an interesting piece by Meena Menon last week titled 'Women as Senior Advocates, Any Takers?'. It discussed mainly the low numbers of women lawyers designated as 'Senior Counsels' in the Bombay High Court. The article stated that there were only 3 women appointed as senior counsels in Bombay between 1991 to 2001, which is shocking. This year in Bombay, there were 15 designated senior counsels and there was not a single woman amongst them. This was despite the fact there was one woman who applied, but was not selected. The situation in Karnataka is not that different, in fact it is much worse. The ONLY woman senior counsel in the Karnataka High Court presently is Pramila Nesargi. To my knowledge, there is no other woman senior counsel appointed in Karnataka or atleast no other senior counsel who is seen to be practicing in the Karnataka High Court.

Why do we have such few women senior counsels in India? The concept of 'senior counsels' has been borrowed from the 'queen's counsel' concept in the UK. The Advocates Act 1961 refers to the class of senior counsels and it essentially signifies a person who has been designated such because of his / her expertise. The person who wishes to be designated as a senior counsel must have atleast 10 years of practice and must make an application to the High Court or Supreme Court to be considered for designation.

The first barrier to designation is really this requirement of making an application to the court to consider you as a senior counsel. This requirement deters many lawyers, both male and female, from being designated as the general feeling in the bar is that the designation of a senior counsel should not require an application and should be given by the court on its own, in recognition of the counsel’s merit. Given this reluctance to apply, with women lawyers, the reluctance is even more. There is a stronger sense of reluctance for women to apply for senior counsel designation, because the selection is to be done by the judges of that court which are mostly male (the Karnataka High Court has only 2 women judges out of a total strength of around 44), there are not enough women senior counsels around for women lawyers to believe that they would have a chance of being selected and the criteria for selection are not known. With all these odds against you, few women would be brave enough to apply in the first place.

Thus, the first hurdle is getting more women lawyers who are really good to even apply. In order to encourage them to apply for being designated as a senior counsel, there needs to be an institutional design in promoting the appointment of women senior counsels by the courts. This is being done in the UK and Australia where more and more women are being appointed as queen’s counsel. The number of women being appointed are still nowhere equal to the number of men, but there the difference is that there is a concerted effort on the part of the judges to appoint more women out of the applicants, if all other criteria are fulfilled. There is a complete absence of any such interest in promoting women in the legal profession by the courts and judges in India. In the same way that there is now a move on the part of the government to appoint more women judges, there needs to be an institutional effort to appoint more women lawyers as senior counsels.

The next big hurdle is that the criteria for selection are not known and the whole process is shrouded in secrecy. There are not open guidelines such as those in other commonwealth jurisdictions, no interviews, and no explanations or reasons given for non-selection. “Merit” is not defined – is it merely long years of practice, the number of reported judgments, the number of judges you have appeared before or anything else? A lawyer should ideally be designated as a senior counsel if she has shown excellence in advocacy in the high court or supreme court and there have to be some criteria formulated in order to judge applicants in a manner that is sophisticated and formalized, rather than just leave it to the discretion of the judges who would decide it without any guidelines. The absence of any guidelines or criteria for selection makes it more discouraging for women lawyers to apply. A clear and transparent selection process with guidelines for selection would make it easier for all lawyers, male and female, to ascertain whether they have a chance at being selected and then take the courage to apply. This has been done in the UK with a fair bit of success and a detailed application process is prescribed, with guidelines for application.

The Bar is a quite a ruthless place to be in and every move of every advocate, especially every woman advocate, is closely watched by other lawyers and judges. In such a situation, there is definitely added pressure on women not to make any wrong move that could affect their career. Applying for senior counsel and not being selected would definitely not be taken well at the Bar. This fear would be addressed if there are concerted efforts taken institutionally to ensure that there is transparency in selections and that there is an effort at encouraging women lawyers to apply for senior counsel selections and at selecting them as senior counsels. This effort has to come from the courts, the judges and the lawyers, especially other senior counsels.

For too long, senior counsels in India, have formed themselves into an elite male clique, and we need more women into this elite rung of the legal profession – to give the message to younger women lawyers that this position is achievable if you are good. This has been more difficult to achieve than even getting more women on the bench!

Salwa Judum as unconstitutional

The recent judgment of the Supreme Court holding the deployment of tribal youth as salwa judum for counter insurgency operations to be unconstitutional is quite a landmark judgement. It is a landmark for many reasons. This PIL has been in the Supreme Court for the last 3 -4 years and several interim orders were passed. Unlike the history of recent PILs where the entire case is made up of interim orders and then only to fizzle out in the end, this PIL is radically different. It has emerged with its final order with the Supreme Court holding the salwa judum to be in violation of Article 14 and 21 and directing the State of Chhattisgarh to immediately stop using SPOs for counter terrorism or anti-naxalite activities. Such a result, I strongly believe, has resulted because it is primarily a civil rights issue. The PIL did include social rights issues of the right to education and work etc., but it was primarily a civil rights issue which resulted in the final path breaking judgment. It was also remarkable because it reflected the work that the Petitioners had put in. Success in mammoth PILs like this requires everyone, the Petitioners and their counsels to put in immense amount of research and work.

I particularly liked this paragraph from the judgment...

"The Constitution casts a positive obligation on the State to undertake all such necessary steps in order to protect the fundamental rights of all citizens, and in some cases even of non-citizens, and achieve for the people of India conditions in which their human dignity is protected and they are enabled to live in conditions of fraternity."

The judgment can be accessed here.

How to handle stress!

I often keep looking out for interesting reading material on how women lawyers can handle stress better. I came across this piece which I quite liked - Stress Advice for Women Lawyers You Wont Read Anywhere Else.

Who Decides the Right to Die?

A short piece of mine on the recent judgment of the Supreme Court was published today in The Hindu - here's a link!

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.