19/08/2018
Art of Advocacy must read
Suggested by Admin Liaqat Qureshi.
* Having knowledge of law is one thing and art of delivery of knowledge of law or court representation is another thing.
* 90% lawyers know the law, but few know art of delivery of knowledge in court of law.
* Reason is that we lawyers do not have training institute or academy. We learn by our experience, and teaching of our senior.
(Cit. p.169) Most difficult and important element of legal profession is appearance of a lawyer in a Court of law. Making a Court appearance in a best possible manner to get a judgment in favour of client is an art, which is called the art of advocacy. An art of advocacy has been described by English and American prominent jurists in various books. There are certain mandatory as well golden rules of advocacy. At the moment mandatory rules of advocacy will be discussed. Before we look at glance these rules, we must know some important factors and ingredients of art of advocacy. For better understanding and learning of this art, I have categorized it in three factors; performance, personality and presentation. Combined effect of these factors when exercised for a considerable period of time makes a prominent lawyer.
Before moving further, one thing is to be kept in mind that whole concept of court proceedings and appearance is based on a human psychology and a behavior of a lawyer in a court of law.
PERFORMANCE
PERSONALITY
PRESENTATION
Counsel takes brief from his client, makes thorough research prepare the case and file it in court.
Always give true advice to your client. Never keep your client in dark about the negative result which could be expected in his case.
Thoroughly check and counter check your case before filing it. Your case should be well documented and always use simple and soft language while drafting. Make the draft precise clear and do not repeat the sentences. Always file legible photocopies of all the documents.
When your case is fixed for hearing, come fully prepared, bring all the books of law, extra photocopies of case-law in your support for opposite counsel and submitting in court so that judge may read it during arguments.
Dressed properly when you come to the court. Moment you enter the court you are under observation of judges, senior lawyers and litigants. Either you are appearing in your case or waiting for your turn, behave like a gentleman and do not indulge in talking.
When your case is called you go to the rostrum and till the time you remain at rostrum keep maintain court decorum. Always give respect to the judge as well your opposite counsel. When your case is proceeded, never interrupt the opposite counsel. When you argue he will have no chance to interrupt you.
Never sought adjournment unless you have a very sound reason.
Always inform opposite counsel in advance so he may not oppose and you may not get embarrassment.
Seek adjournment before your case is proceeded. Never ask adjournment in middle of proceedings it will affect your reputation.
(Cit. p.170) DIMENSIONS OF ADVOCACY
As we live in a three-dimensional world: up and down, sideways and to and fro, with time being fourth dimension, likewise all advocacy takes place in the context of these three truths with time being fourth and the most important dimension.
FIRST DIMENSION RELATES TO PERFORMANCE
SECOND DIMENSION RELATES TO PERSONALITY
THIRD DIMENSION RELATES
TO PRESENTATION
In the common law countries a trial is not an exercise designed to discover the truth: It is shocking but it is a reality. The court is not an investigator. It gives its opinion on basis of material evidence placed before it. Court cannot go beyond what is pleaded before it. So the lawyer never indulges in persuading court to find the truth, but always tries to get opinion in his favour. So you must prepare your case in order to persuade the court and place all the material before the court to get favorable opinion.
Human is more attained to video rather than audio: We collect more information through our eyesight than what we hear. Study of psychology of communications discloses important statistics for a lawyer.
* 50% of message is conveyed by body language visual appearance generally.
* 30% of message is conveyed by tone of voice.
* Only 10% of message comes through words.
* Only 10% of what people hear gets remembered. If on the other hand, they see something connected with what they hear, they remember 50%.
There is always totally honest way of presenting a case: Search for a way in which you can present your case in total sincerity. Make your arguments reasonable and take a support of examples based on common sense. Always argue your case in a simplest way, be logical in your arguments. Do not expect the court to believe which is unbelievable Do not press the court to believe those facts which are unreasonable.
FOURTH DIMENSION TIME IS AS IMPORTANT
IN COURT AS IT IS IMPORTANT IN DAILY
ROUTINE LIFE
You must get quality of attention: Never waste time of the court during arguments. Do not refer irrelevant case law. Do not read unnecessary portion from judgments. Do not argue that you have not drafted in your pleadings. Always be precise and make forceful arguments whenever you have a very strong case. When you have a weak case do not pretend otherwise. Judge knows that you have a weak case. So make your arguments humble as this is the time when your personality and presentation will count. When judge gives you his full attention and hears what you say and ignore opposite counsel, that means you have (Cit. p.171) achieved your goal of having a quality of attention and you are on your way to success.
ADVOCATE IS AN OFFICER OF COURT
An advocate being an officer of court is under obligation to observe certain rules. These rules are called mandatory rules of advocacy.
EVERY COUNSEL MUST KNOW THESE RULES (rather these are "DON'TS" that a counsel must avoid to do).
RULE No. 1
Never make mis-statement before a court, never misguide the court. A counsel is under obligation and owes a duty towards the court to assist it properly and to put all material facts and law before the court.
RULE No. 2
Never express your opinion in a court, otherwise the judge feels that you are trespassing on his ground. It is a job of court and not a lawyer. Successful lawyers never break this rule. The rule is very simple; never use the words; I think, or I believe or in my opinion. Instead you must use the words; in my respectful submission, or in my submission or let me submit.
RULE No. 3
Never impose your personal knowledge on the court. Always keep in mind that you been given licence to practise and plead case of your client. You must plead what your client informed you.
RULE No. 4
During arguments keep focus on what you have pleaded and what prayer you have made to the court. Do not expect the court to accept the arguments, if no ground is pleaded by you nor the court will give you a relief you never sought.
RULE No. 5
Never leave any point of law in arguments that is mentioned in your case on assumption that the judge will read it by itself.
RULE No. 6
Never refer to weakness of opposite side when you are arguing the case. Always put your own case before the court.
RULE No. 7
Never make personal remarks on opposite counsel.
RULE No. 8
Never take advantage of technicalities, and never try to give technical knock out to opposite side. Always argue your case on merits. Judge (Cit. p.172) always wants to decide the case on merits and do not like lawyer who takes shelter under technicalities.
RULE No. 9
Never get emotional during the court proceedings. Be calm, confident and composed.
RULE No. 10
Never address the judge by saying YOU, Always say Your Honour or Your Lordship.
RULE No. 11
Never discuss your case with opposite counsel. Never disclose your client's secret and weakness of case to any one.
RULE No. 12
Never become a witness or appear as a witness. It is a common saying that lawyer cannot be a good witness.
It is a matter of three words: Competence, Commitment and Courage.
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Jawaid Farooqi,
Advocate, Karachi
Published in:
All Pakistan Legal Decisions
Year of Publication: 2011
Suggested Citation:
2011 PLD Journal Section p.168
