This article is written by Abhyuday Agarwal, COO, iPleaders , with inputs from Anubhab Sarkar, arbitration lawyer (practising international commercial arbitration and investment treaty arbitration), who is partner at Triumvir Law and Akanksha Sisodia, litigator and arbitration lawyer. Both experts are members of the industry panel at Lawsikho’s Executive Certificate Course in Arbitration: Strategy, Procedure and Drafting.
When I worked at Trilegal, I realized that I knew a lot of company law but there was a huge barrier in being able to translate my knowledge into the service that clients wanted (in terms of accurate communications, step charts, agreements, diligence, etc.). It took me a lot of hard work, effort, all-nighters and criticism to improve on this front.
There is a huge difference between wanting to learn a subject and getting trained in ‘doing the work’ required to provide a service. Many smart and knowledgeable people do not succeed because while they are skilled in reading and learning, they are unable to apply the effort or to do the ‘dirty work’ that gets the job done. It is not that they are lazy, it is just that they do not have sufficient prior training and practice in performing some of the tasks because their focus was on a different aspect of the subject.
What I learned was that my success as a practitioner depended not merely on knowledge, skill and insights, but prior training and practice of having performed tasks that you will perform in real life.
For those of you who are interested in arbitration, you may already be taking certain steps to learn the law and be updated with latest developments, but you want to watch out for the same pitfall. Before being exposed to a situation that requires you to do real legal work, you will not even know whether this is going to be a barrier for you.
For that reason, it is worthwhile to contemplate about the question – how do you go about learning arbitration in a manner that prepares you to provide services to those who will pay you for it?
To get to that, you need to first know what a day in the life of an arbitration lawyer is like.
Instead of sharing a schedule, I am going to explain the nature of the work and then list the types of activities you will perform as an arbitration lawyer.
Nature of work with an arguing counsel vs. a law firm
Note that as an arbitration lawyer you can work in a firm or with an arguing counsel. If you are working in a firm, you will be drafting the Statement of Claims and Statement of Defense. The firm will engage an arguing counsel, who will review all drafts but will primarily be involved in arguing.
If you are working with a counsel, he will get this ready from a firm, you will be involved in the hearings, evidence, argument stage and in finalization of drafts. You will deal with the law firm which will in turn deal with the client.
Irrespective of where you work, you will be working on litigation matters as well
To start with, your work may not entirely involve representing clients in arbitration matters. As discussed in an earlier article on Is It Possible To Become An Arbitrator Even If You Are Not a Retired Judge?, very few offices such as such as Aarna Law, led by Shreyas Jayasimha, Arista Chambers of Promod Nair or A.K. Law Chambers of Anirudh Krishnan exclusively work on arbitration matters.
You will also represent them in court-related aspects of arbitrations, such as:
- Section 9 applications for interim relief,
- Section 11 applications for appointment of and further
- Section 34 applications for setting aside and challenge of arbitral awards
- Section 37 applications for appeal against specific appealable orders
Apart from representing them in court-related aspects of arbitration, many lawyers get vanilla litigation matters as well. In fact, their practice may involve a fair bit of litigation work.
When we set out with the intention to create a cutting edge and practical course on arbitration, we saw that these aspects were not taught anywhere in law schools. Hence, it became clear that drafting various court-related documents in connection with arbitration proceedings would necessarily be an important component of a course to impart practical education in arbitration.
You will be working on multiple matters at a time
At a time, you can have five to seven matters going on simultaneously (though you may not work everyday on all of them). What does this mean for you?
Clear note-taking is important because factual details are very long and complex. You can easily forget. New documents build up very fast even after the arbitration commences, with various applications and their responses by the parties, orders of courts and arbitral tribunals getting added rapidly to the case files. The volume of paperwork is so much that many litigants don’t have track of their own cases. If litigants (who are personally connected to their matter) face this for their own matter, you can imagine what a hard time lawyers will have keeping track of multiple such matters, to which they are not even personally connected.
Frequent revision of your notes and preparation before meetings and hearings plays a big role in keeping track of things and contributing to discussions in meetings and conferences on a continuous basis. Even if it appears to be a boring task involving little intellectual input, it really makes a difference in your performance.
Some of them will be long (end-to-end) and flow through all the stages of arbitrations while others may be closed out due to out of court settlements.
Now, let us look at each type of activity you will perform.
Document management, compilation and analysis
The life-cycle of a dispute can easily 4-5 years (even in arbitration cases, and all of it is not because of delay in the legal system), because many things will happen between parties in connection with a brewing dispute before arbitration is finally initiated.
Documentation of 1000 pages is a very common phenomenon in large arbitration matters. This does not limit itself to contracts, but numerous client and opposite party communications, petitions and court orders. In fact, there can be thousands of emails. Clients will give you anything and everything, and you may not get a briefing about the matter. You will need to go through everything (sometimes it may not even be in sequential order) and make sense of it.
You will need to get the documents in some kind of logical flow and order so that you don’t keep scrounging for them in future. That can tire you out very fast. Being organized and practising organizing complex things regularly will help there.
Preparation of list of dates and exhibit list
To start with, you will prepare a comprehensive list of dates – this will be very important in briefing your senior and deciding the next course of action in the dispute. That will involve decision-making on what is relevant for your claim in consultation with your senior. That step is discussed later.
Second, after the list of dates, you will make an exhibit list, which is essentially a list of documentary evidence. If a document is not exhibited, it is not considered a part of record and not even read by the courts as evidence, no matter how important it is.
Preparation of list of admission and denials
Next, you will need to go through pleadings and prepare a list of admission and denials after going through the statement of claims and statement of defense. (Many counsels are only involved in the argument stage but not in the drafting stage. If you are working with a counsel, the statement of claims and defense may already be drafted by the law firm which briefs the counsel. The counsel and his office will review and edit drafts which are already prepared by the law firm).
Learning ‘technical’ aspects of the relevant industry sector
You will need to tie in the facts of the dispute with the contract, which will need you to understand industry practice, the working of the industry and acceptable norms of behaviour.
You will be surprised at knowing at how insufficient a mere understanding of legal grounds for the claim (e.g. breach of contract, etc.) without the technical aspect is.
Technical aspects are involved in several industry-sectors, such as engineering, construction contracts (FIDIC contracts), shipping, power sector, insurance contracts.
For example, if the claim is that a machine is not working and the claimant asserts that he had provided the specifications in the order but the defendant denies it, you will really get into the facts to understand whether this was done or not. Often, the answer may not be black and white, but you will be required to take a call, which must be based on the practices of that industry. Hence, you will need to identify the factual connection with the legal ground you are invoking and build a story.
What will matter at this stage is that you are able to appreciate the ultimate intention and objective of the client. You cannot rely alone on what the client says that he or she wants – if you really understand what the client wants, you will invent several other ways to arrive that outcome.
Case law research
If you are working on an international commercial arbitration with a counsel, you may have to do a lot of case law research, and often case laws will refer to foreign jurisdictions. For example, you may need to refer to British case law in a construction contract. Further, you will notice that even retired judges from Indian Supreme Court may have focussed on judgments from UK or US when they were at the Supreme Court, to decide on difficult questions of law. That will indicate if they have a preference or inclination to refer to foreign case laws in the event of a doubt on the position in India. This work is highly engaging and technical.
Communication with parties and client meetings
As a young lawyer, you will be involved in communicating with the client and the senior’s office, setting up meetings, sending emails to share drafts, updating the clients with copies of latest orders in the matter, photocopying work, etc.
Client meetings can take long – four, five or even ten hours is not unusual. A client meeting can have various objectives. You will even have meetings to prepare ‘witnesses’ of the client for what to say in examination and cross-examination.
Make sure you are always alert and prepared with facts about the facts and inspire client confidence. You need to take very systematic notes which you can subsequently refer to and rely on, because the volume of detail and number of matters you will work on simultaneously can lead you to forget information or get confused. Taking good notes frees you up from the burden.
This is easier said than done. What is important here is that you do this work not in a mechanical fashion but with a forward momentum, and that is only possible if you have enough insight to dive into the case.
At this level, freshers face one of two pitfalls. Many freshers either dive in straight into the work without any direction and are exhausted very quickly. The other pitfall is that they try to avoid it for as long as possible and it takes them a while before reality hits that they need to do the work properly, and that the path to completing that is very obscure, disorganized and difficult.
Participation in hearings
You will be participating in hearings pertaining to the arbitration. In fact, if there is a cross-examination or a final argument in an arbitration the next day (yes, these procedures are part of arbitrations as well, even though Evidence Act do not strictly apply to arbitrations), all your time in the previous day will go in preparing files for the senior. At that time, you will need to keep revisiting the facts and documents and assist your senior in providing necessary supporting documents as and when required, as your senior builds the narrative of your client’s case.
What is important at the stages of hearings and client meetings is that you have a good idea of the overall direction (from beginning to end) in which an arbitration proceeding goes, what can go wrong and what to watch out for. Without that, you will only be a clueless spectator doing donkey work.
I’ll state this with a corollary so that it becomes clear. Imagine, if you are a cricket enthusiast playing or watching a cricket match, you will know which team will bat first, who are the best batsmen in that team. You will even know what challenges they will face – which bowlers they need to survive and which bowlers they can aggressively strike, which side of the field to hit in, etc.
Do you have that kind of insight when it comes to arbitration? What if you could have that? Could you imagine what your experience of cricket would be if you didn’t have that this idea? By the way, that is what your experience of law will be like, without such insights.
Discussion of strategic aspects with your senior
Several aspects are strategic in nature – as a young lawyer you will need to communicate and bring it up to your senior for taking a ‘call’ on the ideal arbitration strategy, going forward.
Some examples of these aspects are:
- Preliminary study – You will need to review the arbitration clause, determine whether it is tight enough to compel the court to refer the dispute to arbitration, pre-identify what objections can be taken against you and review communications to identify whether arbitration notice was validly initiated identifying a valid dispute. (These actions are often taken by the parties or by their in-house counsel, before briefing a law firm or engaging an arguing counsel.)
- Creating a strategy for interim relief – Young lawyers struggle with appreciating the interest of the client – what is the immediate relief that could preserve status quo?
- At the time of determination of claims, you may need to identify and let go of the weak grounds which could harm your case;
- Selection of an arbitrator
- Building up the narrative – Although your senior will play a primary and critical role in this, you will need to provide and sift through all the documentation actively and assist your senior. As young lawyers are primarily familiar with the case law style of research, they face challenges while framing coherent narratives tying-in the facts with the law and downplaying or omitting the weak points in the case. Even in many moot court competitions it is often law points which are at debate and there is less focus on giving a specific spin to facts.
This is a rare and a highly valuable skill. Imagine how much you could contribute to your senior if you became effective with this.
How can you perform this task effectively?
Let’s take an example. If you practice drafting arbitration clauses and writing a notice of commencement, you will get very point-blank focus and practice in initiating an arbitration validly. You can review different arbitration clauses and identify which is a weak arbitration clause which may be disregarded by the court, which kind of notice of arbitration does not validly invoke a dispute.
Similarly, you can have the same prowess with each strategic challenge in an arbitration matter. How would that influence your career prospects?
Drafting Work and Final Arguments
If you are working on drafting, it will take all the time that is available with you. Crucial substantive drafts such as statement of claims or statement of defense can take a period of 7, 10 or 15 days at a time. Many arbitration lawyers say that these documents are more intricate and detailed as compared to court petitions in a vanilla litigation scenario.
Similarly, if a matter is at the stage of final arguments, you will be fully occupied with that and will only be dealing with one arbitration matter at a time.
To that extent one has to be able to see all matters one is working on plan incoming work. You may even need to approach your senior and ask for a re-allocation of work ahead of time, so that things don‘t get unmanageable later.
The challenge for young lawyers is that they do not have sufficient clarity of how to proceed with work at this stage. As a result they are uncertain about what to do, the work takes all their time, and they still flounder and are anxious. They also face the risk of regularly being ‘blasted’ by their seniors for doing work which is shoddy, for not applying their mind or ‘common sense’ or not being ‘interested’, when the reality is just that this is the first time they are doing this work, and they do not have any direction.
Now, imagine what would be possible if you had already practiced drafting the statement of claims and statement of defense, submitting evidence by affidavit, prepared practice questions for examination and cross-examination for hypothetical problems.
What would the difference between you and someone else who did not have this kind of practice look like?
In order to address this pitfall, Lawsikho’s Executive Certificate Courses, such as the Executive Certificate Course in Arbitration: Strategy, Procedure and Drafting, which provides you simulated exercises borrowed from real-life work that a lawyer will perform on an everyday basis, drafting exercises to draft all major arbitration petitions such as notice of commencement, statement of claims, statement of defense, application for interim measures before the arbitral tribunal, how to adduce evidence by affidavit, examination process for proving documents, how to identify questions for cross-examination, etc.
You will also draft court documents in connection with arbitration proceedings, such as Section 9 petitions, Section 11 petitions, Section 34 and Section 37 petitions, etc.
You will learn drafting of these documents in connection with the overall strategy of the dispute and the outcome that a client wants to achieve.
Apart from study materials and videos which already have detailed explanation of concepts and strategy, and templates which you can use, the concepts will also be explained in a weekly classroom conducted online. You will have about a week to perform the exercise and then receive feedback from experts in the next class, in addition to study materials, sample petitions and videos.
Now, knowing about the concepts is very different from actually having practice of performing the work.
What do you think? How can possessing this level of ability impact your preparation, future prospects and effectiveness at work?
Write in to us, to share your views.