When I was in my teens, I used to watch a TV series called “Ally Mcbeal”. The episodes unwrapped the journey of a young lawyer in a law firm. One of the partners in this firm had this peculiar habit of blowing his nose in a certain way during court proceedings, when he found the trend of the arguments against him to be strong. It worked well as a disruption of the proceedings and broke the thought flow of the opposing counsel.
How you manage the scene on the ground while inside a court is what ‘court craft’ is all about. You must always be alert to the surroundings and be able to respond promptly in a manner beneficial to you. This isn’t something you get from textbooks. The more situations you face yourself and the more you watch and listen to the experiences of people, the better you become at this. If you are a pro in this sphere, you will be able to turn the fate of the case in your favour.
Now ‘court craft’ need not necessarily be restricted to “courts’. It can also apply to quasi-courts like the National Company Law Tribunal (NCLT). At the end of the day, the presiding officer will be someone who has been the judge of a High Court. But then, court craft is something which will be very subjective, depending upon the specific location of the bench and even within a city, depending upon the various courts and judges. There’s definitely no ‘one size fits all’ policy here.
Nevertheless, there can be certain things which will help you to have an upper hand (or at least, not to face a showdown from the judge) during a proceeding.
STAGE 1: PRE-SUBMISSION
You do not get to do the ‘Produnova’ directly at the event. Like Deepa Karmakar, you must have practised it thousands of times before, at least in your head. What groundwork you do before you even submit an application / a petition / an appeal is very, very relevant. Following are some things that we recommend you do not miss out on:
- Get the facts straight with your client. Clients, by nature, will reveal as less details as they can. It’s your job to extract the maximum information possible from the client by asking enough questions. In addition to the same, collect all the relevant supporting documents from the client. Where you can’t find these, find alternative means to establish the facts. In case of any missing information, send the other side a letter asking for the same. Unless you have all your facts listed and arranged properly, it’s unlikely that you will even understand the case, let alone fight it.
- Know what your client wants. Sometimes, it is not just to ‘win the case’. I am reminded of a case shown in one of the TV series where the lawyer had actually agreed with the client that he will get the case settled for less than a specific amount, say USD 10 million. While this lawyer lost the case, the judge ordered payment of little more than USD 1 million as damages to the other party, who celebrated their ‘win’, while the defeated lawyer neatly pocketed a decent percentage of the balance 9 million that he saved. You’re there to get what your client wants, not necessarily to win.
- Gather all the precedents. Precedents are also considered a source of law. According to Salmond, ‘Precedent’ is the making of law by the recognition and application of new rules by the Court themselves in the administration of justice. Moreover, precedents also lay down a useful guide as to legal and interpretive issues. Especially, if you are able to get a judgement for a case which was passed by the same bench / judge, you’re in for a lot of brownie points. They will probably not want to overturn the whole of the earlier judgement, though there may be some changes, since in no two cases the facts and circumstances are exactly the same.
- Think through the case. Like I said before, you have got to run it a thousand times in your head – visualise it, ‘live’ it already before it happens. And this is to be done at this initial stage, because your drafting will depend upon how and what you have thought about it.
STAGE 2: DRAFTING OF PETITION/APPEAL/APPLICATION OR ANY OTHER DOCUMENT
The second stage of the institution of a suit is drafting the petition on the basis of the facts, details or any other documents presented by the client, as well as the ‘re-runs’ you have gone through in your head. A legal document must be drafted in such a way so that you can guide the thought flow of the reader and establish absolute clarity about what has already transpired and what is required. It must categorically specify the facts clearly, the legal issues involved on the basis of the facts and statements of the client and the remedies sought / prayers.
The guidelines, which should be followed are:
- READ the applicable provisions, rules and guidelines, because the drafting has to adhere to this – there’s no escape, no short cut here. You must read it thoroughly. Part III of The National Company Law Tribunal Rules, 2016 (NCLT Rules), specifically provides for the provision in regard to the institution of proceedings, petitions, appeals, etc. In addition to this, the customary practices shall also be looked upon. We have whole chapters in this course dedicated to what the registry in the NCLT is going to look at, when you submit your documents.
- Language and grammar are very important. As a millennial, you may have thought of this advice from your parents or teachers as unnecessary or inconsequential to adhere to. But remember that one day you will land before a judge who is ‘old school’ and believes that language and grammar are important – most judges are above 50 years of age. Now you may not have listened to your parents or teachers, but you will have to listen to the judge. On the other hand, if you have presented your documents in impeccable language, this may create an impression, since it will look different than submissions from other counsels.
- Never ever copy and paste/use a pre-filled template. I recall one of the leading NCLT practitioners mentioning that she had seen an oppression and management (Section 241-244) petition containing clauses requesting a waiver of the eligibility requirements, while the petitioner fully met all eligibility requirements. The counsel involved had probably ‘lifted’ the draft from another case where a waiver was needed. At the most, you can refer to a template for structure, but always draft the text from scratch.
- Avoid silly mistakes and omissions. For example, the Form NCLT.4 provides for the heading which must be used in all documents to be used in the proceedings before the NCLT. If you have missed this out in any of the documents, it will be difficult to track it to the specific case. A judge who looks at a document without this heading will form an opinion about you in his / her head, and it might not be something you would like them to think.
- The whole set of documents required often includes far more than is clearly indicated. Index is considered as an integral part of the necessary documents for submission of any petition/appeal/application. A concise index containing brief details of the document attached in the file should be prepared. In addition to this, make enough copies of everything for the opposite side and the bench.
- You must have ran through a million times, digested and dreamt of the case file. Keep all the documents organized so that everything can be found at the time of urgency. I have literally seen ‘buzzer rounds’ happen during the proceedings where the judge asked for the page number in the documents where he can find certain things and the lawyer was able to answer within seconds.
- You need to know exactly how the documents have to be printed off and submitted. And this may differ in different benches. For example, green-colored paper is used for the submissions in Mumbai, Kolkata and Hyderabad benches of NCLT, while in the remaining places, white legal paper is used
Further for the NCLT Principal Bench, Delhi and the Delhi Bench, the submissions can be e-filed (see here). While, in the case of NCLT – Mumbai as of November 2019, non – electronic documentation process is followed and application is filed through CD and physical copy of application.
- Where you are drafting a reply to a petition the following points should be kept in mind:
- While most lawyers try and attack each ground/fact stated in the petition, see if you can attack the maintainability of the petition itself. If there are any grounds or reasons why the petition should not be maintainable, those are the first you should use.
- There may be facts or documents which have conveniently not been referred to by the petitioner. You need to bring those out in your reply. Then challenge each of the grounds taken by the petitioner in view of the new documents/facts.
STAGE 3: HEARING
It takes effort for a proceeding to reach a hearing stage – you must know what to do in case your matter simply isn’t listed for a long period of time (Learn about what a ‘praecipe’ is, in [this-insert link] course). In the course of litigation, hearings are conducted as oral arguments in support of motions filed. Arguments are an important weapon in a professional’s arsenal while appearing before judicial or quasi-judicial bodies.
- Ensure that you are properly authorised to appear. In the case of an Advocate, a Vakalatnama shall be submitted. However, in the case of other professionals such as chartered accountants or company secretaries, a Memorandum of Appearance shall be submitted. Both the documents, as the case may be, shall be supported by a board resolution. The board resolution must provide adequate authority to you to appear on behalf of the company.
- It’s sometimes said that it’s more important for you to ‘know your judge’ than it is to know the law. Prior to the date of hearing, you must find out about the judge from other practising professionals or from the prior judgements delivered. This will help you in pre-empting what the judge is likely to ask / query and prepare your arguments accordingly. Based on this, you can even draft your written arguments to lead the direction of the hearing rather than let the opposing counsel or the judge move it away from the direction you want it to proceed in.
- Be there on time! It can happen that you have no clue exactly what time your matter will come up for hearing, even though it is listed for a particular day. You need to ensure that you are present on the ground, when it does come up. I have witnessed a lawyer leaving his junior associate in a courtroom and moving out after asking him to let him know when the matter came up. The associate probably did message, but the senior guy took time to arrive and so the associate started arguing by himself. The senior returned in a few minutes, only to be upbraided by the judge for leaving the associate alone to argue.
- There may be a situation where a judge is torpedoing any chance of success for you and the client by asking difficult or tricky questions. In such circumstances, the best way is to be calm and let the judge finish all of his statements. You should then, calmly and without losing composure attempt at responding.
- Sometimes, prompt action is required to respond to the demands of the changed circumstances. If there is a likelihood of irreparable harm or injury that can occur immediately, during the pendency of the proceedings, you must be ready to request for an ad-interim order. This is an order to stop or continue certain actions, without which, the substratum of the case may be lost. For example, if you already have a pending proceeding in relation to property against some authorities requesting for interim reliefs and the municipal corporation issues an order to bulldoze your property in the next two days, you would need an ad-interim order to get a stay on such bulldozing. Otherwise, the property in question will simply not remain.
- Respect your opposing counsel. A professional is not supposed to use such language as is un-parliamentary or would show discourtesy to the opposing counsel. For instance, if the opposing counsel makes some untrue statements, you can gently counter by stating that “My learned friend is not properly instructed”. Do not interrupt the opposing counsel. At the same time, if you face interruption, request the judge to restrain the opposing counsel from interrupting you and to let you have your say.
- Though the Rajasthan High Court recently opined that there is no necessity to use the customary “My Lordship” or “Your Lordship” and that even “Sir” is sufficient, you may not want to be the only one referring to the bench as ‘Sir’ while your opposing counsel continues with ‘My Lordship’. It may or may not augur well – depending upon how the judge takes it.
STAGE 4: RECEIPT OF ORDER
Once the arguments are completed, the judge can either issue an order, or give another date for the hearing, particularly if you have asked for further time to present something. Either way, the custom is for the lawyers to state ‘Obliged, my lord’. You need to ensure that you do not react and show disagreement, if the order is not in your favour. Receipt of order is the concluding stage of a suit unless an appeal is filed to the appellate tribunal.
Post the receipt of the order, you need to ensure that if the order is subject to the implementation of certain conditions, those conditions are implemented. Further, if the order is required to be filed to the registrar of companies or any other appropriate authority the same should be done within the prescribed deadline.
Like I mentioned before, these things cannot be found in textbooks. But if you want to hear it directly from the professionals who represent clients frequently before the NCLT, join into the Executive Certificate Course in National Company Law Tribunal Litigation and we will ensure you continue to get such insights.
We have extended the admission till the 18th November 2019.
Here are some courses in which we are accepting enrollment until the end of this month:
EXECUTIVE CERTIFICATE COURSES
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.