For those who want to pursue a career in litigation, the question of choosing a forum to start your practice is very important. There is a lot of conflicting or piecemeal advice available out there, which is likely to leave you confused. This decision has long-term implications for your career, so let us give you a low-down on this.
Let us take a serious look at the pros and cons of starting your career in different forums, and then zero down on criteria that can help you in arriving at your own decision.
Does it help to begin your practice in trial courts, or can you start practice directly at the High Court?
Benefits of starting your practice at a trial court
Many senior litigators will advise you to have some experience of trial court work in your early years. There is very sound logic to this advice. For full exposure to the legal and justice system, learning the ropes of trial litigation is important.
For many lawyers, having an experience of trial litigation contributes to their self-perception of being a complete lawyer. In a way, it feels incomplete to be a litigator without any experience of trial court work, especially real life cross-examination in legal proceedings.
You may be able to use your trial experience in appellate litigation work, as questions about how evidence was appreciated at the trial court are often addressed in appeals. Further, evidence-related procedures in arbitration, consumer cases, debts recovery tribunal (DRT) and other tribunals derive their roots from trial litigation.
For example, Shreyas Jayasimha, founder of the Aarna Law, a leading arbitration firm (former partner of AZB’s Bangalore office), said to me that although he is well-known as a great arbitration lawyer, trial litigation skills are the real secret to his success.
There is a lot more freedom to develop the factual narrative of the case and exploit the procedural technicalities and gaps in evidence at the trial stage. The real case narrative is framed during a trial. As the litigation proceeds towards the appellate stages, the lawyer’s ability to shape the factual narrative of the case gets restricted, and the scope of the court’s powers is progressively restricted to the questions of law involved.
If you start your practice in the trial courts, you will naturally be involved in handling High Court-related work at the appeals stage in connection with your matters.
You may, subsequently, after a few years of practice, decide to take on more appellate work at the High Court. However, remember that practising at the High Court or Supreme Court does not indicate that you will earn more. Good trial court lawyers make a lot of money, sometimes more than the majority of litigators at the High Court or Supreme Court. It is also perfectly alright if you want to be known as a trial litigator for your life – you do not necessarily have to move on to the High Court or the Supreme Court later on.
It is also believed that when successful trial lawyers move to HC they can get a lot of referrals from friendly trial lawyers who respect them and had a chance to see their brilliance first hand at the trial court level!
Benefits of starting your practice directly at the High Court
If you want to ultimately practice primarily or exclusively at the High Court, it is also possible to directly start at the High Court itself.
For a moment, consider a situation where a litigator with 10 years of trial court experience shifts to a High Court. How will he or she fare in comparison to someone who has already been practising in that High Court for the past 10 years?
Chances are that the litigator who has been practising in the High Court for the past 10 years will do better, because he or she would have had deeper experience of the relevant High Court work, higher credibility and face value with the judges, a better network that generates relevant work for him or her in that court, and so on.
In comparison, the litigator who recently shifted or started his or her practice at the High Court will have to build it from scratch.
How can the High Court lawyer acquire the skills which he or she missed out on because of lack of trial court experience?
The answer is simple. It is not necessary that trial and evidence-related skills need to be learned over the years through direct first-hand trial experience alone. If you can be at peace with the idea that you can be a lifelong litigator without ever having performed a cross examination in a trial court, you can still acquire evidence and investigation-related skill-sets by learning from other sources, such as, say the police (if your goal is to be a criminal litigator) or a banker (if you want to learn how financial records are used in litigation), etc. This, in fact, can be a faster path, which directly leads you to your goal, without having to do trial work for years.
Many brilliant HC lawyers have never worked for a day in a trial court and that does not matter if you can learn what you need to learn.
Note that some High Courts may have an original side jurisdiction as well, in which case certain aspects of trial with respect to the areas on which they have original jurisdiction can be learnt in the course of practice at the High Court itself.
How to start if you want to build a practice at the Supreme Court?
There are two ways to approach this problem.
The first is to start in the High Court of a specific state, build your reputation and credibility in that forum, and a network of clients who give you work pertinent to that forum, so that when you move to the Supreme Court, SLPs and appeals from the same network of state HC lawyers and existing clients can be filed/ argued by you at the Supreme Court. This is a time-tested strategy which has been followed by a vast majority of Supreme Court senior advocates with successful Supreme Court practices as of today.
Over the course of time, many advocates who want to practice in the Supreme Court become Advocates on Record so that they can file cases independently. Some High Court practitioners also attempt the exam as it enables them to enjoy superior credibility and charge a higher fee.
The second strategy involves you to start your practice directly from the Supreme Court itself, without any significant High Court experience. Our research suggested several names in this regard, such as Gopal Sankaranarayanan, Menka Guruswami and Gautam Bhatia, mostly NLS Bangalore alumni who have directly built their practice in the Supreme Court (with some trial court exposure in some cases), and in a relatively short amount of time.
To build a profile directly to handle Supreme Court work, you may need to build your profile more aggressively. General public visibility and credibility is important. You can author books on a subject of your interest (from the objective of your practice), start or represent organizations that promote the significant public interest or even act as a public advocate for a cause building up ground level support for the same. All of these have proven to create powerful brands for lawyers that have helped to build successful Supreme Court practices in a relatively short period of time.
Remember, it is not easy at all!
It also helps your brand if you frequently appear in the media to talk on the subjects on which you want to represent clients and appear in public interviews on television and comment on high-profile matters, etc. Many lawyers these days hire PR agents to land such opportunities.
Still, you cannot expect to build a career only based on hype unless you can deliver at the Supreme Court level, which requires serious skills.
Remember, Supreme Court work largely involves the filing of Special Leave Petitions (SLPs) under Article 136 of the Constitution of India, writ petitions and public interest litigation under Article 32, filing limited types of criminal appeals and statutory appeals under statutes such as the Income Tax Act, the Consumer Protection Act, etc.
Therefore, the actions you take for building visibility should ideally involve an area of your interest in which you can build your practice at the Supreme Court. For example, Menaka Guruswamy has stood for the rights of the LGBT community and the challenge to Section 377 of the Indian Penal Code. She was also involved in the Right to Education case and in cases involving abuse of power under the Armed Forces Special Powers Act (AFSPA). Similarly, Gautam Bhatia has authored best selling books on the Constitution of India. We also believe that his regular social media posts on important constitutional cases have gone a long way to highlight him as a regular commentator on constitutional law.
Notice how different this would look in comparison to the profile of someone who intends to build a practice, say, at the trial court or the high court, or the securities appellate tribunal (SAT).
There is a third strategy as well, to spend a year or two as a clerk at the Supreme Court, followed by working with seniors at the Supreme Court. Read the discussion below on how this can be of help in the long term.
The relevance of judicial clerkships for building a litigation practice
Judicial clerkships in India at the High Courts and the Supreme Court are gaining popularity in recent years. Judicial clerkships at the Supreme Court are valuable for those who want to pursue an LLM in a foreign university, but what is their relevance for someone who wants to build a practice at the Supreme Court? Also, is pursuing a clerkship at a High Court of any relevance?
If you want to be a litigator, starting your career as a clerk in the court in which you want to practice in offers the following advantages:
- You will learn how the court-registry and filing systems work inside out. You will have a very wide perspective of this.
- In addition, you will acquire unique insights about how different lawyers draft petitions. You will get exposure to a variety of drafts submitted by various kinds of lawyers, and you will be able to distinguish good drafting from hurried or shoddy drafting. Small things can make a difference here, for example, insertion of captions for each paragraph so that a judge can quickly read through the headings and get a sense of the flow of your arguments. You may, for example, notice how a lawyer who follows this approach consistently obtains a favourable injunction or stay, and countless other insights.
- You will also notice how top lawyers use the law to make persuasive cases and obtain a favourable judgment, how the lawyers who successfully improve with every case, how initial perception of a lawyer plays a role in the direction of the case, etc. You get an opportunity to absorb a lot of these, which can change the direction of your career entirely.
- You will learn how judges decide cases, what factors and considerations weigh on their minds, etc. This is extremely valuable information for building your own practice. You can use these insights even if you shift to litigation in a law firm or an in-house team later on in your career.
- For building a successful practice in any court, having your own face value before the judges is important. Performing a clerkship in a court at least builds an initial level of familiarity with the sitting judges of that court. If you are otherwise competent and diligent, you may be able to use this initial opportunity as leverage to establish your own credibility very quickly. For this reason, the time spent being a court-clerk is strategically beneficial in the long-term.
Remember that there is no point in pursuing a judicial clerkship in a different court from the one in which you want to build your practice, as you will not benefit from the above advantages in such a situation. Therefore, if you want to practice in the High Court at Ranchi, a judicial clerkship at the Supreme Court will not be relevant for providing a powerful start to your career.
Criteria for making an effective choice
Starting your litigation career in each forum has its own pros and cons. However, having all the information available right away should be beneficial in making an informed decision, use the advantages and minimize the disadvantages. There is also no fear of missing out on something else that could have been more beneficial to you.
Are there any uniform criteria you can use from the above discussion to arrive at your own decision on where to start your practice?
The following criteria should enable you to decide.
In which forum do you want to ultimately practice?
The forum in which you want to ultimately practice is the primary focal point. Consider starting in that forum first. If you want to build a practice in the Supreme Court or High Courts and are starting there directly, consider becoming a judicial clerk for at least one year to understand the workings of the judicial machinery and the scope of litigation work at that forum.
Of course, remember that practising at the Supreme Court will require you to build expertise and specialization on a certain category of matters, which will be different if you build a practice in a trial court or in a tribunal. Also, it is far easier to build a successful practice at a lower court than at a Supreme Court. To build a practice as the Supreme Court, remember that the practice is so fierce that most consider it impossible to build a practice directly at the SC.
If you think you are missing out on exposure to any other aspect of the work, consider learning it through an alternative medium.
Do you want to learn trial court work?
For many lawyers, having full exposure and experience to different aspects of the law is important. It imparts the experience of being a holistic lawyer. If knowing and understanding trial court work, or having performed personally some thrilling cross-examinations is critical to you, then don’t ignore the experience of a trial court.
Are there reasons which justify acquiring experience at multiple forums?
You may, however, acquire some experience of working in other forums, for strategic reasons. Say, for example, if you want to build a law firm in future, you may want to learn the basics of legal work and the pain points of clients at trial and appellate forums and some tribunals.
Similarly, if you want to move into an in-house role in the banking or financial sector, you may want to consider building a practice at the National Company Law Tribunal (NCLT), Debts Recovery Tribunal (DRT), or Securities Appellate Tribunal (SAT).
I would personally want to build a practice starting from lower courts or a specialized tribunal in a metro city like Delhi or Mumbai because it is far easier, and more lucrative to start with and transition into an appellate practice eventually if I see the need to do so. What would you do?
So yes, there are a bunch of things to consider before you jump into any particular area of practice.
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