This article is written by Abhyuday Agarwal, COO, LawSikho.

I was speaking to the knowledge management head at one of India’s major law firms in Mumbai, exploring how we could help them. They asked me if we had any litigation courses to offer. “For your litigation team?, I asked.

“No, for our corporate lawyers,” she said. “It will help them to know how litigation works.”

I was surprised.   

When we think of the different mainstream careers that a lawyer can pursue, we imagine three fundamental choices – work as an in-house lawyer in a company, work in a law firm (whether it is a corporate, disputes, tax or IP law firm) or work as a litigator.

A lawyer who picks one of the paths is, in the ideal world, expected to proceed along the same path to its logical conclusion. A corporate lawyer often visualizes becoming a partner in a law firm (or start his or her own law firm), an in-house counsel dreams of becoming a general counsel one day and a litigator dreams of becoming a highly acclaimed senior advocate, charging lakhs for every hearing and for every client meeting.

However, it may be difficult to imagine legal careers in such a rigid mould. People shift not just across companies and law firms, but they shift the very nature of their careers. For example, a sufficient number of corporate lawyers shift to in-house positions and to litigation, and similarly, a sufficient number of litigators also shift to corporate law firms, and to in-house positions in companies.

Does their prior experience help them? Or do such shifts mean a waste of time and discounting of previous experience?

It is true that big law firms will discount your experience unless you worked in another big law firm. They do that because they have a better bargaining chip and people want big law firm jobs badly. It does not necessarily mean your experience is otherwise worthless.

Unlike what most people think, when you go from litigation to law firm or from a transactional role in a law firm to litigation, you don’t start from scratch. You will definitely be able to benefit from your past experiences, especially in terms of the values, habits and skills you bring from your past career into the new career, around client service, conceptualization of a strategy, business development skills, argumentative skills, attention to detail, ability to think on your feet, etc.

In fact, due to a richer past experience, some of the people who shift their careers are able to enjoy more success in the long term, in their new career. This is probably because they are able to bring the best of multiple worlds together.

You may know that Shardul Shroff of Shardul Amarchand Mangaldas, Cyril Shroff of Cyril Amarchand Mangaldas and Zia Mody of AZB & Partners, all started their careers through litigation.

Shardul Shroff is an Advocate on Record at the Supreme Court of India. Zia Mody started her career as a litigator in the Bombay High Court in the early 1980s, and also represented the Bombay Environmental Action Group (BEAG) in cases against fraudulent builders. Similarly, Pallavi Shroff started her career as a litigator in the Delhi High Court (with the law firm Amarchand Mangaldas itself). Cyril Shroff had also started working at Amarchand Mangaldas itself from his days in law school, but as a litigator.   

You could say that these lawyers had to have a litigation experience because corporate law practice could not have succeeded in the country’s economic environment back then, as domestic industry was a victim of license raj and the country had not opened to foreign investment, thus indicating that most of the available work for a lawyer would be in form of litigation.

You should know that this view is not specific to India. All corporate lawyers who are licensed to practice as solicitors in the UK have some amount of litigation experience. This is because the Solicitors’ Regulation Authority in UK requires trainee solicitors to have experience in both contentious (i.e. litigation or disputes) and non-contentious work before they are eligible to practice as solicitors (UK has a division between advisors, called solicitors, and lawyers who practice in court, called barristers), and that firms which cannot provide their trainees such an experience must arrange for appropriate secondments for this purpose.

We have done some research and asked lawyers who work as in-house counsels, independent litigators and corporate lawyers working in law firms, and all of them have one thing to say – that litigation experience made a huge contribution to their capacity to work as a corporate lawyer.

How? Let us take a look with respect to the different categories of work of a corporate lawyer.

Advisory work

A significant amount of advisory and structuring work performed by corporate lawyers requires them to go through various kinds of notifications, circulars and instructions issued by regulatory bodies and read them together with the parent legislation.

When you are advising a business, you will often find yourself in the grey, because business structures and models are very innovative.

Consider, for example, the situation of Uber a few years back – was it a taxi operator? Was it governed by radio taxi regulations? Were any home-owners offering their home to Airbnb required to obtain permission from local authorities for running a bed and breakfast? Was Airbnb a hotel chain like, say, Taj or Oberoi?

These kinds of situations frequently arise and constitute bread and butter work for general corporate lawyers. You have to deal with these questions not only when you advise companies and potential investors, but they determine the outcome of every investment transaction or M&A deal.

One more problem that arises is that regulatory authorities at the lower level can take a very narrow view of the law and issue notices to businesses for non-compliance.

A sound strategy involves the following:

• Identification of the true intent of the regulatory provision and advise accordingly. As a litigator, you will be able to glean a better ‘sense’ of the law. Some literal interpretations are too onerous, and you will not be able to identify how a government official may twist the law in one way or the other. However, it does not help to be too conservative as a corporate lawyer. Clients do not want lawyers to strike down business proposals but come up with viable ways by which the objectives of the proposals can be realized.
• Where it is necessary and worth it for the business, the regulatory provision may even need to be challenged in the appropriate forum (when the business team is willing to shoulder the waiting period, cost of litigation and the risk of an adverse order).
• Understanding the implications from different kinds of court orders from a transactional perspective. For example, a non-speaking order of a High Court granting a temporary injunction against some kind of practice, does not mean that such practice has been ruled illegal. While you can infer that the matter is being litigated upon and factor it within your business strategy, you cannot infer that such a practice is itself illegal, based on these facts.
• Identification of possible errors by regulatory authorities and preparedness for handling adverse actions by them. What if a show-cause notice is issued for non-compliance of a particular provision, because the authority interprets it differently? What if the authority does not accept the reasons you have provided in support of your interpretation and chooses a different interpretation and a different course of action?
• Shaping regulatory opinion, public policy advocacy and responding to white papers, etc. around the legal validity and overall economic benefits to the country through the client’s business and business model becomes important for corporate lawyers at the highest level. For example, if you are acting for an app which wants to introduce a new kind of over the top content (OTT) with original programming (say, such as Netflix) and you have reasons why it must not be censored as per existing law applicable to TV programming and movie censorship, it will require significant effort to influence the opinion of the government and various statutory authorities such as TRAI, CBFC, etc. However, this kind of advocacy is not a skill that corporate lawyers typically develop. However, litigators have an upper hand here, especially if they have been arguing at constitutional courts.

Further, let us assume that you are advising a company on a notice received by the director for violation of specific labour laws. The show-cause notice requires the company to show cause for why legal action for non-compliance of that statute must not be initiated and specifies the consequences of violation of that statute, which may be both civil and criminal in nature.

Ordinarily, a corporate lawyer with no litigation exposure is more likely to conclude that criminal liability (which could lead to imprisonment if the statute provides) immediately follows if there is a violation of the statute, but someone who has experience of criminal trials will be able to identify that first, a complaint needs to be filed with a magistrate, process needs to be issued and the trial must follow, before there is risk of criminal liability.

You will be able to visualize the end-to-end proceedings and provide advice on what needs to be immediately argued and demonstrated in the response,  and to what extent corroborating evidence must be furnished in the response itself, to eliminate the risk of criminal proceedings first, and then how to demonstrate compliance.

If criminal proceedings are still initiated, you will be confident about how to structure the argument and to furnish the appropriate evidence at the correct points, and to take up appellate remedies if at the trial court level there is an adverse decision.    

You will also be prone to giving firm and direct advice, without overuse of disclaimers and uncertainties, which clients tend to prefer.

In other words, you will have a strategy which is richer and more well-informed. A lot of unnecessary panic and concern will be avoided.

Drafting Work

While drafting a contract, a corporate or commercial lawyer’s mandate is to provide a way for the parties to realize the business outcomes they seek. The lawyer must mitigate the risk of disputes and provide certainty to the contract by mapping out as many scenarios as possible and providing clear risk allocation between parties. If there is a disagreement, a clear path forward must be provided, so that, as far as possible, the need to approach courts for the interpretation of the contract where a provision is ambiguous, or construction of the contract, where the contract does not provide for a particular scenario, is minimized.

When you are drafting a contract, many lawyers only think at the first level – whether you can go to a civil court or arbitration for this violation, whether you can get an injunction against the other side, etc. In some cases, they even sub-consciously use the “We will see when it happens” approach.

This is not the trait of a mature lawyer, whose job is instead to measure and map out risks appropriately. In this regard, a litigation experience helps in the following ways.

End-to-end visualization of contract scenarios

When you are drafting contracts and notices, as a litigator you will always think of how the provisions will be interpreted by a court of law (or an arbitrator), and how the contract will be enforced. There will be a laser-sharp focus on enforceability and determinability of the provisions of the contract. The chances for loose ends and vagueness in the operation of the contract are minimized. Anyone should be doing it, but those who have litigated many times over interpretation of clauses tend to be that much more cautious.

The interplay of contract terms with the statutory framework

You will also keep in mind the application of the statutory provisions which get triggered in an enforcement scenario and how that interplays with the contract terms. For example, if you are drafting the event of default clause in a loan agreement (on behalf of a lender), the manner in which the default is called and provision of a cure period, you will need to keep in mind how  insolvency and bankruptcy code (IBC) proceedings could pan out if they are initiated, how the statutory moratorium under IBC will operate and keep that in mind while drafting these provisions and other relevant factors.

Similarly, if you are drafting a debenture trust deed, you will be able to look at whether the provisions actually create a legally valid trust over immovable or movable property, or whether it is only creating an appearance of a trust due to the title of the document and the assertion in the deed that there is a trust.  

In short, attention to the litigation aspect of a transaction will enable you to visualize the end-to-end process at the time of drafting itself, thus saving your client a lot of agony, costs and difficulty in the future.

Selection of dispute resolution mechanisms in a transaction

Some lawyers have a tendency to universally provide for arbitration in all contracts, without paying attention to how the mechanics of the arbitration process will work. In India, arbitration can prove to be as difficult or even more complex than litigation, especially for contracts which are not of high value.

A legal officer in a major bank (for which Lawsikho prepared training materials) stated that they seldom use arbitration in their contracts because as far as debt recovery is concerned, the statutory framework proves to be sufficient. Even for other contracts, they prefer to approach courts to resolve disputes rather than arbitration, unless the contract is of very high value, say, running into a few crores at least.

This was a strategic decision, and knowledge of the dispute resolution environment was necessary to arrive at such an outcome.

Drafting of dispute-prone terms and other provisions of the contract

Some contractual provisions such as indemnity, limitation of liability, non-compete and non-solicit are highly susceptible to litigation, and being restrictively interpreted by courts, if not completely struck down.

A lawyer with dispute resolution experience and skill-sets is better-equipped to identify how courts will interpret such terms in a particular contract and use language which is more balanced while meeting the objectives of his or her clients.

A disputes lawyer may also be able to benefit from prior experience of how judges interpret contracts, their perspectives in tricky scenarios (e.g. employer-employee situations, foreign investor-domestic entrepreneur situation), etc. and recommending alternate commercial mechanisms to protect the client’s interest, apart from merely including litigation-prone terms in the contract.

A broader understanding of a lawyer’s role and the way forward

In the end, you need to understand that businesses do not engage lawyers to say Yes or No to their business plan, model or strategy. They engage lawyers to say how the objectives of the business can be fulfilled. Thus, all the experience that you can bring to the table, matters.

The most successful lawyers are not cost centres. They are not a cost to the client because they don’t restrict or limit business. They are sought after because they act as business facilitators.

They ensure that the client is able to perform its business smoothly and create the right set of incentives for other stakeholders (customers, collaborators, vendors, regulators, governments, etc.) to facilitate the end-goal of his or her client.

How deep does your advice to your client go? How many steps ahead can you think of beyond the current situation? The best chess players can think of more than 20 moves ahead. Corporate lawyers and litigators also need to do that.

Your effectiveness as a corporate lawyer is not determined at the time you get the deal signed (called signing), or the money transferred by one of the parties, often referred to as closing in investment and M&A transactions, or how happy your client appears at any of those points or how grateful he or she is to you for your contribution, but how many loose ends and loopholes are discovered later which lead to disputes.

Your client will not expressly state this expectation. Most clients do not even know that this is the expectation they have when they brief a lawyer to draft documents for a transaction. However, as a professional, you need to understand this logically. The client satisfaction that you have generated over the years by drafting hundreds of contracts for a particular client rapidly erodes if the client starts landing up in disputes arising from vague or uncertain terms, or gaps in the contract.  

As you notice above, there are specific qualities that are traditionally imparted through a litigation experience, which are extremely valuable for corporate lawyers.

If you want to deepen and enrich the strategy you offer your clients, these traits will help.

Is litigation experience necessary to acquire these traits? What should you do if you do not have litigation experience already? If you are not a litigator, does this mean that you must quit your current job to acquire litigation experience?

Until recently, it was, because there was no other way to develop a litigator’s mindset, other than by acquiring litigation experience, at a dispute resolution team of a law firm, or under a senior, or through independent litigation.

Fortunately, today, you can take up any of the courses on insolvency and bankruptcy code (IBC) litigation, arbitration, civil litigation, criminal litigation, or the full litigation package to train yourself and develop a litigator’s mindset while simultaneously performing your current job. It takes only 6-8 hours per week to train yourself in this over a period of 3 or 6 months. You learn by performing practical exercises, which require you to draft different kinds of documents.

You can find highly practical courses that are created to train you into a formidable lawyer at LawSikho.com. Here are a few courses closing in a few days. Would you be interested in any of these?

Diploma:

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Entrepreneurship Administration and Business Laws

Executive Certificate Courses:

Certificate course in Advanced Corporate Taxation

Certificate course in Advanced Civil Litigation: Practice, Procedure and Drafting