This article is written by Abhyuday Agarwal, COO, LawSikho.
From a lawyer’s perspective, if you have the skills, there is no dearth of money in civil litigation. You often deal with large debts, valuable properties, large compensation claims, easements and other important legal rights of people, because people rarely take the trouble of filing civil cases for small issues in India given the high cost and long litigation period.
Companies have expanding litigation budgets too. The larger the company, its operations and customers, the larger the likelihood of its facing claims across the country as well as the need to enforce its legal rights across different forums. This translates into large legal bills too.
For litigators, the challenge is rarely that you can’t find paying clients, but that it’s hard to learn the work and establish yourself as a credible option for such high-value matters. Can clients trust you with a matter that will decide the fate of crores of rupees or a very important license at stake? If one does not get work that is only because they fail to generate trust and build credibility.
You need to be able to deliver results to clients in order to succeed in litigation.
With this challenge in mind, we created a course on civil litigation to teach the practice, procedure and drafting. Our goal is to teach in 6 months what litigators take about 2-3 years to learn otherwise, mostly through painful trial and error. With that objective, we began to speak with a lot of lawyers who succeeded in the trade. We asked them about the challenges, travails and what skills helped them most.
At the time of market research, everyone we spoke to came up with the answer that civil litigation is very vast, and that it cannot be taught, and that it can only be learnt over the course of many years’ practice, failure, struggle, trial and error. Even then, you would only learn the aspects you practised in and there will be other things you will still not know.
However, we were willing to challenge the status quo, because we believe that there are always better ways to do things waiting to be discovered. We understood that the problem is very challenging, and we put in solid 2 years to create something that delivers results.
The first step of that was identifying the skills that need to be learnt by civil litigators to build a sustainable, growing and successful practice.
We strongly recommend that you go through the list below and identify which skills you possess and which skills you don’t. Be specific, do not skim through the list in a generic sort of way.
If there are one or more skills you are not confident about, do not hesitate to admit that to yourself. The hallmark of a true master is that he or she identifies what skills are missing very efficiently.
We know you have a dream. There is a skill gap between what you want to achieve and where you currently stand. You can succeed when you close that gap by developing those missing skills.
How large is that gap? We wrote this article to help you to identify.
Once you identify which skills you do not currently possess at the desired level of proficiency, consider the scope of the opportunity that is available. What is possible for your career as a lawyer if you acquire and develop those skills? How will that impact your clients? How will that impact your reputation? Where can that mastery take you in a few years of time?
Remember that knowing 85% and not knowing the remaining 15% might mean a difference of at least tens of lakhs in income, if not more.
So, let’s begin! We have identified a total list of 47 skills and bucketed them into broad categories for ease of your understanding.
Skills related to the drafting of legal notices and sending replies to legal notices
While drafting legal notices and replying to them may occur as a very simple task, many suits get dismissed on the ground that they are premature, not served in accordance with the terms of the contract for service of notices, or that they do not disclose an adequate cause of action or that an effective intimation to the defendant of the dispute and an opportunity to resolve was not provided.
Further, legal notices need to be customized based on the situation your client is facing. For example, a cease and desist notice (under trademark law) is different from notice to initiate proceedings at consumer forums, or a notice to pay outstanding dues under Insolvency and Bankruptcy Code (IBC), or notice sent prior to the commencement of arbitration proceedings.
There are multiple nuances you will need to keep in mind in this regard. In fact, drafting an appropriate legal notice can lead to the matter being settled out of court even before taking a single step to initiate a proceeding.
While several lawyers might think this is a bad idea because you may lose a client quickly, drafting effective legal notices and responses to the same may actually be the secret to charging a premium, providing a superior (but cost-effective) service and building goodwill.
We teach a very unique and effective method to draft legal notices, which yields results much faster, and which was tested and fine-tuned through the studying of hundreds of effective and ineffective legal notices.
Similarly, your response to a legal notice must be powerful and effective. Learning to draft responses to legal notices are critical. At the stage of receipt of a notice, it is not a certainty that legal proceedings will be initiated against your client. An effective response can mitigate the risk and even lead your client to a favourable outcome, without the initiation of legal proceedings.
Thus, the two broad skills to develop and fine-tune here are:
- How to draft different kinds of legal notices
- How to draft effective replies to legal notices
Skills related to drafting and filing of plaints
Drafting and filing of plaints may appear to be a simple process, but there are multiple skills that you need to develop to initiate and lead the litigation effectively, which are listed below.
Merely filing a plaint is not sufficient – it will need to have a strong basis. Your drafting skills need be developed. You need to identify the appropriate facts and ask for the correct prayers.
Having a strong foundation will set you up for victory. After drafting of the plaint, you will need to learn about other technicalities related to the filing process, rectification of defects, etc.
The top skills in this regard are:
- How to draft plaints seeking different kinds of reliefs
- How to identify jurisdiction, calculate court fees and value a suit
- How to identify and draft appropriate prayers in your plaint
- How to calculate damages, costs and interest and claim monetary reliefs in the prayer
- How and when to claim perpetual injunctions and specific performance in the prayer as per Specific Relief Act principles
- Learn about tagging and nomenclature of various petitions etc. by the courts
- Understand the listing of matters, cause lists, case status, daily order sheets and how to deal with court clerk, readers, ahlmads, etc.
- Learn about common drafting and filing related errors and defects and how to avoid them.
- How to ensure your plaint is not rejected or dismissed on grounds of misjoinder or non-joinder of parties, erroneous identification of jurisdiction, incorrect valuation or payment of court fee, or expiry of limitation
Skills related to obtaining a temporary injunction
Every plaint is usually accompanied with an application for temporary relief. In fact, most parties claim ex-parte interim relief, which may or may not be granted by the courts, depending on the likelihood of loss and strength of the case.
Selection and identification of the appropriate temporary relief is very important, and it really depends on the requirements of the case – most lawyers do not have enough practice with identification of appropriate reliefs.
Every application for temporary relief is assessed on the basis of pre-established principles of the prima facie case, the balance of convenience and irreparable harm. Even where lawyers know about this, the challenge is in framing a persuasive argument as to how the facts satisfy the above principles. Merely pleading that the above principles are satisfied with a weak connection to the facts is the number one reason for not securing a favourable temporary injunction order.
Similarly, if you anticipate litigation and want to minimize the risk of it, you may want to file caveats in multiple courts, so that you no ex parte orders are passed against you. However, a caveat leads to the other party being informed that you have filed a caveat. That may lead to the precipitation of litigation, even when the other side was not planning to initiate one.
Therefore, if you merely want to keep a watch, tracking the cause lists of the relevant forums where you anticipate proceedings will be sufficient.
The relevant skills in this regard are:
- How to draft an application for temporary injunction and identify appropriate remedies
- How to make a persuasive case for ex-parte relief
- How to ensure no ex-parte relief is granted against you (by filing caveats)
Skills related to drafting a written statement
After a plaint is filed, you need to prepare an effective response. There are rules which need to be followed in this regard. Most people learn the rules but are unable to apply them correctly.
Lawyers understand what a para-wise response is, but are unable to do it consistently. That mistake can amount to an implied admission by the party. Can you imagine the cost of such a mistake for their client, and to their own careers?
Similarly, which are the most effective preliminary objections you can take up to have the plaint be dismissed?
Also, amendment of pleadings may be necessary from time to time. The development of this skill is not by referring to the provisions of the Civil Procedure Code for amend pleadings, but the actual drafting of the applications required to effectively amend your plaint or written statement.
Thus, the top skills in this regard are:
- How to draft an effective written statement
- Using common preliminary objections to get a plaint dismissed without consideration on merits
- How to draft a claim for set off and counter-claims
- How to amend pleadings
Skills related to the filing of other applications
Apart from drafting and filing of legal notices, plaint, written statements and applications for temporary injunctions, there are numerous applications which you will be required to file over the course of the proceedings. These applications are either filed for technical reasons (e.g. for addition of parties, for submission of secondary evidence) or for appointment of receivers or commissioners by the court.
The key skills to learn in this regard are:
- How and when to draft application for appointment of commissioner for various reasons
- How and when to draft an application for appointment of receiver
- How to draft an application under Order 7 Rule 11 for rejection of the plaint
- How to draft an application for adding or removal of a party to the suit under Order 1 Rule 10 of CPC
- Calculating limitation for various suits and application and getting condonation of delay when permissible and how to apply for it
Skills related to court process, trial and evidence
Indian court procedures are complex, and learning how to conduct the trial effectively is important for success. Usually, lawyers acquire an experience of the trial process in a very piecemeal manner, as they are dealing with multiple cases at a time which are in different phases of the trial.
If you know the full set of the skills required to be developed, you can develop them all, much faster.
Not having a strong grasp of even a single skill can mean the difference between a win and a loss.
What distinguishes a rookie from a successful lawyer is his or her grasp over all these skills, and the ability to select and use which of the skills to apply at the appropriate time.
The top skills worth developing in this regard are as follows:
- Methods for service of court process and process fee
- How to draft an application for appointment as a representative in a representative suit
- When and how to draft an application for setting aside an ex-parte decree
- How to proceed with the case when a party or witness does not appear in court, including attachment of property and civil arrest of such a person
- How to submit primary, secondary and digital evidence in court to establish the facts
- How to prove a document in court
- How to conduct examination-in-chief
- How to conduct cross-examination
- How to build a narrative from the facts and evidence for the final arguments
Skills related to filing review, revision and appeals petitions
When should you opt for an appeal and when should you opt for a revision? When should you go for a review? When you are dealing with interlocutory orders and decrees, selection of the right method of challenge of the court’s orders becomes important.
Similarly, when you are dealing with appeals, identification of how you should make a persuasive case for a second appeal is incredibly important. While at the High Court level you may have the chance to obtain a favourable order, the grounds for admissibility of a second appeal (to High Court) are narrower.
These are also the stages where litigation tends to expand and sometimes go out of hand. Clients may lose track, some may stop pursuing their litigation and others may want to settle. As a lawyer, you have a tremendous opportunity here to manage the case better, provide superior service and either forward the purpose of the client or bring it to closure.
The skills necessary to be acquired here are:
- How to draft a petition for revision (against an interlocutory order and decree)
- How to draft a review petition
- How to draft an appeal against an appealable order
- How to draft a civil appeal (first appeal and second appeal) \
- How to file for the execution of a decree
Skills related to proceedings under related laws and formulation of litigation strategy
When a client comes to you for a civil matter, thinking in terms of civil suit for [money recovery, declaration of title, specific performance, etc.] and an application of temporary injunction will seldom meet his or her needs.
You will need to select the right methods between a wide range of competing alternatives. For example, should you initiate proceedings under the Consumer Protection Act? Should you initiate proceedings under the Negotiable Instruments Act? Can use of the Insolvency and Bankruptcy Code lead to immediate recovery?
Will a notice to pay under the Micro, Small and Medium Enterprises Act offer an advantage?
Should you first obtain some strategically advantageous information under the Right to Information Act and then initiate proceedings to make your case substantially stronger?
Which will be the most difficult forum for the client to defend his or her case in?
What are the pros and cons of different strategies and what is the most advantageous strategy here?
These questions can lead to significant pre-litigation advisory work and a lot of trust building for your client. Answering these questions and selection of the appropriate range and sequence for each case is also crucial in the creation of a powerful litigation strategy.
The top skills in this regard are:
- How to initiate and defend a client with respect to proceedings under Negotiable Instruments Act
- How to draft and file a consumer complaint
- How to defend your client in a consumer matter
- How to draft and file RTIs and use the RTI Act to obtain vital information for your clients’ litigation
- How to send a notice of demand for recovery of dues under Insolvency and Bankruptcy Code
- How to create an effective litigation strategy
- How to price your work
- How to deal with ethical questions
- How to liaise effectively with senior counsel, local counsel and legal counsel in special forums to expand your legal work
- How to arrive at a compromise between parties and obtain a decree based on such a compromise
If you are hoping to practice civil litigation, I hope you already know the majority of these skills. If you do not, you have two choices. Now that you have a list, you could try and learn them on your own. Alternatively, we could help you through our 6 months long online course with live instructor led classes. We will teach you two new skills every week.
If you think it will be too cumbersome or difficult to learn these skills on your own, then read on. Otherwise, you are done with this article.
Now, the good part is that the 2 years’ of conceptualization has helped us to nail the problem that litigators face in the initial stages of their career, leading us to build a very innovative course on civil litigation.
We did not want to build a course which is full of sections from CPC, Evidence Act, Specific Relief Act, Limitation Act, NI Act and other civil laws, accompanied by case laws (which are easily available today at your fingertips thanks to technology). This course is about getting kick-started with real legal work.
In our civil litigation course, we will be providing you opportunities to develop the above skills through the use of simulated scenarios. You will receive individual feedback on your solutions by our evaluators. You will also have weekly classrooms (and have access to recordings), and receive access to detailed study materials at one go on the online platform. A hard copy will also be provided.
You will learn drafting and filing work from the initial stages of filing caveats and plaints, to the appeals and revision process, step-by-step litigation flow, evidence, argument creation and detailed aspects of filing and procedure.
In simple words, you can not only perform your own work but also review and suitably modify drafts, brief seniors, coordinate with local and other lawyers and supervise their work effectively.
This course is also ideal for lawyers who are experienced in other areas of law but want to understand the court process in detail, as well as law students.
If you are already practicing civil law on-ground for 4-5 years, you probably already know what we are going to teach in this course, through your sheer hard work. However, if you haven’t already gone through this extremely hard phase, this course will make your job easier, faster and enjoyable.
Moreover, the learning is based on a unique methodology of performing exercises and online classrooms with course faculty. You will also receive feedback from the faculty and evaluators on how to improve.
How do you think learning these skills can help you build you your practice? What kinds of work will you be able to perform? Which clients will you be able to approach? Will you need to find a partner/ hire a junior, or build a team to perform such work? How will that impact your earnings and reputation as a lawyer?
Think about this, and let us know your vision by writing back to us in the comment section or call us at 011-4084-5203 and let us know.
Also, here are a bunch of courses in which the admission will close on 15th of June.
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
