|
|
ADDRESS BY HON'BLE MR.
JUSTICE M.M. KUMAR
ON THE OCCASION OF
COMMON WEALTH MOOT COURT
COMPETITION
ORGANISED BY
RAJIV GANDHI NATIONAL
UNIVERSITY OF LAW, PATIALA
(July 20-22, 2007)
My
esteemed colleague Justice Rajive Bhalla, Worthy Vice Chancellor Rajiv
Gandhi National University of Law, Dr. Gurjeet Singh, the Registrar,
learned members of the staff and the budding Lawyers.
I am
indeed extremely pleased to be with you this evening. Whenever I come to
a gathering of students, my memories go back to those days when I was more
like you in a law college, learning my first steps. Whether you are from
the National Law School Bangalore, Hyderabad, Calcutta, Patiala, Jodhpur
or any other law school, the object is one – ‘How to pick up pebbles
at the seashore of knowledge'. The acquisition of knowledge never
stops and, therefore, our status as a student can never be given up.
However, I can share some of my experiences with you so as to guide your
steps for the years to come. The world of law is very vast and many of
you become corporate lawyer or in-house lawyer or a full-fledged lawyer
practising at the Bar. For every one of you, the acquisition of basic
tools required for successful lawyer would be necessary.
You may
confront the problem to decide the methods of study because learning by
study has never been entailed from son to son. You may be in predicament
how your time is better spent by sitting in library reading cases in the
reports, or stewing over a textbook in your own room? This question
confronts the beginners and it has no easy answer. One can of course
answer it discreetly by saying: do both. But then the question is: in
what proportion? What is the relative importance of the two modes of
study? It must be remembered that when you study law you have two aims in
front of you. The primary and most important aim is to make yourself a
lawyer. Your secondary but equally important aim is to pass your law
examination with credit. Both the aims can be pursued by same means. For
both purposes, a student must study cases in the original law reports.
Here I wish to emphasis that the case law books are not available in this
country and the problem has to be solved by our Professors by preparing
case law books which is a handy material for the students. In countries
like England and United States, a large number of case law books are
available. In a way, the non-availability of case law books to the
students is beneficial to them because they have to read the original law
reports because it is through applying oneself to cases that you get to
understand how legal problems present themselves and how legal argument is
conducted. That understanding is important where you are to solve
examination problems or to give sound opinion on points of legal
practice.
From
experience I can share with you that even today in a number of cases which
come before me, I end up applying my knowledge which was acquired by case
law studies during my student days.
However,
there is one vital difference between preparation for examination and
preparation for practice. For a practising lawyer having a large field of
potential knowledge is more important than having a small amount of actual
knowledge. A practitioner needs to have grasp general legal principles, a
sound knowledge of practice and procedure and ability to argue and a
general knowledge of where to find law. To shine at the examination one
must not only know how to argue and able to display a first hand knowledge
of the sources; you must be able to parrot a considerable number of rules
and authorities. It is extremely important to commit a considerable
proportion of your reading to memory. A number of times it is seen that
students who have worked industrially and read widely fails to achieve due
place in the examination because the art of recalling and memorizing has
not been mastered by them. Therefore, I wish to emphasis that learning of
law through law reports or through the medium of text books becomes much
more profitable if reading is committed to memory. You can achieve it by
reading and re-reading your text books. The more often a book is read,
the easier and quicker it is to read and the more it repays the reading.
Lord Denning in his book ‘The Discipline of Law' has stated
that before entering the court to argue a matter as a Barrister, he would
go through the paper book at least four times. He has further stated that
he used to write and re-write, modify and re-modify the proposition of law
before he actually went on to argue before the courts. I may share with
you that whenever I have read a book on unfamiliar subject for the first
time it is rather heavy going and I won't remember much of it. The second
reading is both easier and more interesting but still not much of it is
remembered. A large number of students take their examination at this
point. Had they had the perseverance to read book third, fourth and fifth
time, they would have found that each successive reading came more easily
and that the residue left in the mind each time went up in geometrical
progression. I may emphasis that learning by heart is best performed in
short periods distributed over as long a time as possible. Therefore, it
is better to devote one hour a day to revision than six hours at a stretch
once a week. Likewise, you can learn the same amount in less learning
time by distributing your learning evenly over a term and vacation than by
crowding your learning into the term and leaving the vacations an academic
blank. The greater the gaps you leave between your periods of learning,
the less learning you have to do. There are many books available on
Memory and I may refer to a book titled ‘Memory' by
Ian M.L. Hunter. Learning can be increased in strength by sleep
or a rest period. It seems, therefore, that more learning can be
accomplished in say three hours by taking ten minutes rest period in the
middle and then by working continuously. If you have read a chapter of a
book at night, try to read it again in the morning, even though you feel
you know it. It has been found that when acts of reading and acts of
recall alternate i.e. when every reading is followed by an attempt to
recall the items, the efficiency of learning and retention is enormously
enhanced. In other words, learning is best done by reading a paragraph or
page or similar convenient amount, and immediately reciting the gist of
it. It has been found better to recite aloud than to perform the recall
in the head. If you find that you cannot remember the passage properly,
read it again and then try another recall. Tests have shown that when
time is distributed between reading and recall, 50% more is remembered
than the one when the same time is spent merely in reading the passage
over and over. You may be extremely benefited by reading “Learning The
Law” by Dr. Ghnville Williams.
I must
emphasis that the beginner would find themselves rather lost amongst the
many technical terms used in a law report and will find some difficulty
with Latin and law-French phrases and maxims. Therefore, you may have to
spent some time in searching the meanings of the expressions like
“animus revertendi”, “oiter dictum” etc. A law dictionary in the
room of every student can be of significant assistance to solve such like
difficulties. There are number of dictionaries available in the market
like “Mozley and Whiteley's Law Dictionary”. Then you have
the “Oxford
Companion to Law”
by David M. Walker's, which gives a general view of common law
countries and foreign systems. You have to master the legal abbreviation
and acquire the art and correct pronunciation.
The moots
and mock trials are extremely important and add to the ability of the
students of being articulate. In every discipline one can see that much
emphasis is laid by educationists on literacy and numeracy. A singer has
to practice riaze every day; a bowler in the game of
Cricket has to acquire accuracy in his line and length. Then why it is
supposed that speaking comes naturally and needs no efforts and
concentration. The fluency and clear enunciation are particularly
important for the lawyer because forensic practice is largely oral.
Taking part in Moots would enrich your experience in the art of persuasion
and the art of putting case succinctly and intelligibly. Moots not only
gives you practice in court procedure but helps to develop the aplomb that
every advocate should possess. You acquire the art of addressing the
court in accordance with the status of the Moot Judge and addressing the
counsel opposite. The most common breach of etiquette committed by the
enthusiastic beginner when arguing a moot case is the expression of a
personal opinion on the merits of his case. The counsel may “submit” and
“suggest” as strongly as he likes and he may propositions of law and facts
but he should not express his own belief and opinion. It is disrespectful
to the Bench to say “My Lords, in my opinion the law is so-and-so”
or to say “My Lords in my opinion this man is innocent”. As
an advocate you are paid to present your client's case, not to offer a
single opinion how you decide if you were the Judge. It is only by
maintaining this rule that an advocate can be kept free from any possible
charge of hypocrisy. Begin you address to the court by stating quite
briefly what you wish to show. Take any hint the court drops: if the
Presiding Judge indicates that as at present advised the court is with you
on a particular matter, leave it alone – do not insist upon reading out
your argument merely because you have come prepared upon it. State your
main point as impressively as you can. After stating it, pause to give
time for it to sink in. Speak slowly, and get as soon as possible to the
core of your case. Your time is much more limited than it could be a real
case, and you cannot afford to waste it. You must establish eye contact
with the judge and make sure that you can be heard. Do not read out your
arguments if you can possibly avoid it but in any case do not mumble into
your notes. You must avoid a dull monotone by reading out your
arguments. Firstly you should avoid reading out your arguments but in any
case do not mumble into your notes. You should try to put your expression
into your voice. The reports of the cases cited should be produced at the
moot. Do not give the citations of cases by referring to them in
abbreviated form. If you are citing AIR then you must say All India
Reports and if you are citing SCC then you must say Supreme Court Cases.
Lord Greene long back has observed that the student arguing a moot case
with the experienced practising lawyer arguing in court. According to him
the student builds up his argument on authorities which he refers to in
great profusion, whereas the experienced advocate builds up his argument
out of his instinct for legal principle and only uses his authorities to
substantiate his points or to convince a judge who declines to accept a
proposition unless it is supported by authority. “Some of the legal
arguments which I have heard on points of difficulty and complication have
been conducted with surprising economy of reference of authority” and the
reason is that the advocate's instinct for law and its principles has
enabled him to present in an attractive and logical way an argument which
convinces by its own inherent strength and des not require at every point
to be propped up by references to authority.
When you
think that the Judge has grasped your point then do not go on repeating
it. If you have presented your case to the best of your ability and Judge
is evidently unconvinced then accept the defeat and sit down. This advice
applies equally to argument in real cases. Do not interrupt the other
counsel or the Judge.
You have
to concentrate on your ability to speak and speak eloquently. For all who
have to speak regularly it is better to spend on lessons in elocution. I
can assure you that those who cannot have access to lessons in elocution
can also overcome some blemishes by self-help. You must avoid the use of
expression “I mean”, “you know”. One method, which was adopted by the
illustrious Prime Minister of England Mr. Disraeli, was practice the art
of speech in his own house standing by the wall and imagine that he was
addressing Parliament. Distraily learnt a lesson when he was unable to
utter a sentence in Tory party meeting and he used the expression ‘I
conceive', which he uttered trice. Then a female member of the party
scolded Distraily that he conceived three times and without producing
anything. Everyone of us knows that Distraily has been regarded as one of
the top orator in England. According to Lord Denning:-
“Apart from writing, there
is addressing the Court. Speaking needs even more practice: and even more
experience. I was no god at first. I was too shy; also too nervous.
Others are different. Many friends of mine – who have since become
eminent – started as President of the Union at Oxford or Cambridge. At
Oxford I joined the Union but never spoke there. I only learnt by actual
experience – by the small briefs which come the beginner's way – by
addressing a jury, for whom you must make things simple and clear – like a
dock brief at Quarter Sessions at Winchester with only half-an-hour before
the case comes on – or a two –guinea brief in the Marylebone Country Court
before a testy judge. He could be very rude if you made the slightest
mistake. Remember also that, whatever the tribunal, you must give a good
impression. Your appearance means a lot. Dress neatly, ,not slovenly.
Be well-groomed. Your voice must be pleasing, not harsh or discordant.
Pitch it so that all can hear without strain. Pronounce your consonants.
Do not slur your words. Speak not too fast nor yet too slow. All these
things are commonplace but they are so often forgotten that I warn you
against the mistakes I see made daily. No hands in pockets. It shows
slovenliness. No fidgeting with pencil or with gown. It shows
nervousness. No whispering with neighbours. It shows lack of respect.
No ‘ers' or ‘ums'. It shows that you are slow-thinking, not knowing what
to say next. Avoid mannerisms like the plague. It distracts attention.
Don't be dull. Don't repeat yourself too often. Don't be long-winded.
All these lose you your hearers: and once you have lost them, you are done
for. You can never get them back – not so as to get them to listen
attentively.
One thing
you will not be able to avoid – the nervousness before the case starts.
Every advocate knows it. In a way it helps, so long as it is not too
much. That is where I used sometimes to fail. My clerk – as a good clerk
should – told sometimes me of it. I was anxious to win – and to tense –
that my voice became too high-pitched. I never quite got over it, even as
a King's Counsel. No longer now that I am a judge. The tension is gone.
The anxiety – to do right – remains.”
Lord Denning has also
emphasised that to succeed in the procession of the law, you must seek to
cultivate command of language. Words are the lawyer's tools of trade.
When you are called upon to address a judge, it is your words which count
most. It is by tyhem that you will hope to persuade the judge of the
rightness of your cause. When you have to interpret a section in a
Statute or a paragraph in a Regulation, you have to study the very words.
You hve to discover the meaning by analyzing the words – one by one – to
the very last syallable. When you have to draw up a will or a contract,
you have to choose your words well. You have to look into the future –
envisage all the contingencies that may come to pass – and then use words
to provide for them. On the words you use, your client's future may
depend.
The reason why words
are so important is because words are the vehicle of thought. When you
are working out a problem on your own – at your desk or walking home – you
think in words, not in symbols or numbers. When you are advising your
client – in writing or by word of mouth – you must use words. There is no
other means available. To do it convincingly, do it simply and clearly.
If others find it difficult to understand you, it will often be because
you have not cleared your own mind upon it. Obscurity in thought
inexorably leads to obscurity in language.
Sometimes
you may fail – without your fault – to make yourself clear. It may be
because of the infirmity of the words themselves. They may be inadequate
to express the meaning which you wish to convey. They may lack the
necessary precision. ‘Day' and ‘Night' are clear enough at most times.
But when does day begin and night end? Some may say at sunrise. Others
would say at dawn. They when does ‘dawn' begin? No one can tell exactly.
Or a word may mean one thing to one person and another thing to another.
Take ‘punctual payment' or ‘prompt payment'. To one it may mean immediate
payment. To another it may permit of a little latitude and it may suffice
if payment is made within a day or two. The difference between the two
will remain unless it is settled by the House of Lords'. Yet again a word
may mean one thing in one context and another thing in another context.
Thus ‘money' may be limited to the money in your purse and cash at bank or
it may include money owing to you for difidends or rents. Yet again a
word may mean one thing in one situation and another in another. Take the
words ‘insulting behaviour'. Blowing a whistle on the Centre Court at
Wimbledon may ‘insulting behaviour'; but blowing it at the Cup Final at
Wembley would not. It depends on the meaning which you yourself choose to
give to ‘insulting'. The difference is not to be settled by authority,
but by individual choice. Constantly you will find ordinary people giving
different meanings to the same word. This gives full scope to the lawyer.
How then
can you acquire this command of language so much to be desired? Forgive me
here if I give of my own experience. When I was young, I did not think
much in words. At Oxford I studied Mathematics. No need for words
there. The tools I used then were numbers, letters and symbols. They
were lifeless things but not of the lawyer. But when I was called to the
Bar, I had to become proficient with words. I did it by drawing on my
reserves of English literature. These I had acquired at the Elizabethan
Gammar School to which I went daily. I had read much of Shakespeare and
many of our poets and novelists whilst still at school. All my prizes
from the age of 11 were for English. I have them still, bound in handsome
leather, with the school crest and the date AD 1569. The titles in
succession are the Great Authors, Macaulay, Caryle, and Milton. Reading
these and others provided the essentials: a wide vocabulary of words, and
an understanding of the meaning attached to them by the measters of the
language. Come to think of it, that is how the makers of the great Oxford
Dictionary set about their task to discover meanings. They compiled it
‘from over five million quotations derived from English words of
literature and records of all kinds'. Then glance at Dictionary itself to
see the result. It shows that the meaning of a word may change from
decade to decade, from place to place, even from one person to another.
It may depend on the subject-matter under discussion or the context in
which it is used. So you have a challenging task ahead if you are to
acquire command of language: and to say what meaning any particular word
has in any particular case.
Next, I
had to practice continually. As a pianist practices the piano, so the
lawyer should practise the use of words, both in writing and by word of
mouth. Again, forgive a personal reminiscence. In chambers, if asked to
advise, I took infinite pains in the writing of an opinion. I crossed out
sentence after sentence. I wrote them again and again. Seek to make your
opinions clear at all costs. Make them positive and definite. Not neutral
or vacillating. My pupil master told me early on of the client's
complaint: ‘I want your opinion and not your doubts', and of Sir George
Jessel's characteristic saying: ‘I may be wrong and sometimes am, but I am
never in doubt'.
In the
end, I must share with you that if you are called to the Bar and get your
brief then the first thing which you should d is to master the facts
firstly on the basis of documents and then making deductions from the
documents, co-relate those deductions with the oral discussion held with
your clients. You will be well advised to note down those facts which
emanates from the documents and then deductions, which could be co-related
by oral discussion to those documents. It is thereafter that you would
start looking up for the statutory provisions like the Constitution, Act
by Parliament or State Legislature, Statutory Rules, Instructions and any
other source of Subordinate Legislation. It is amazing that these simple
method of preparing a case is forgotten even by top lawyers who are swayed
by maze of judgments which are these days reported in large number in
never stopping journals. The judgments would be relevant if the facts
ascertained by you are co-related to the relevant provisions of
law/Subordinate Legislation which might be subject matter of a judgment.
In the beginning an advocate has to be extremely reluctant to accept every
brief because once you lose such cases it brings in frustration.
Thereafter it becomes a vicious circle because some advocates start
acquiring adverse reputation which does not persuade the litigant to place
his confidence by engaging such an advocate. Therefore, a god lawyer
whether in practice at the Bar or as an inhouse lawyer must speaks frankly
about the legal position of the case unless he wishes to have all dangers
of acquiring adverse reputation and quit edging out of profession. The
profession is challenging because it does not offer a secure place and
finances may be difficult to manage in the beginning. However, in a year
or two, you are likely to acquire some briefs which would multiply once
people come to know about your forensic skill of presenting the case and
your frank and honest legal opinion expressed to them. It may be
profitable to join the chamber of a senior who may be busy but not so busy
as to spare no time to discuss the brief with you. You may attend his
chamber, go through his briefs and avail the opportunity of arguing his
briefs at times when he is held up in some other Court. In the beginning
when you are not so busy at the Bar, you may have some spare time which
can be spent profitably by devoting yourself to reading of
autobiographies. We have in this country a large collection of
autobiographies such as autobiography by Mr. M.C. Changlasitalabad, Mr.
M.K. Mahajan, Justice Khanna, Chief Justice Hidayatullah so on and so
forth. There are many autobiographies of English Judges and in that I may
refer few; Lord Mensfield, Chief Justice Koch – The Lion and the Tom,
Lord Brich's 14 English Judges, Lies of Lord Chancellor by RFV Heuston.
I had a chance of going through a latest autobiography by Lord Justice
Keer, titled as ‘As far as I could Remember'. According to
me, reading of autobiographies would guide you the course to be adopted if
you are confronted with a problem akin to the one gone through by the
auto-biographers. It also provide you great inside of practical problems
which one faces in day to day life. The disadvantage is that there may be
some element of sticking to the readymade solution provided by reading of
these books, which may not necessarily adoptable to your own conditions.
A factor which is often forgotten.
One issue
which I would like to emphasis is that our founding father have visualised
the framing of laws by our elected representatives on the basis that pulse
of the people beats in the House of People – Lok Sabha, or State
Legislative Assembly -Vidhan Sabha. However, a tendency has developed of
adopting Legislation which are not necessarily suitable to the
temperaments of the people of the country. What needs to be emphasised is
that the laws in a country have to be in tune with the pulse of the people
because it breads natural obedience. However, if the laws are opted
either from Western World or from United States then they may not
necessarily bread obedience because such law may not be in tune with the
pulse of the people. Once it is so then a tension develops between
establishment and the masses because of the wide gap and which some times
result into violence. Therefore, as young students you have to watch out
the onslaught of foreign laws being adopted copiously without realising
that these laws are not necessary for our society and for our people. You
can legitimately demand a holding of some empirical study along with study
of case law before enacting any such laws.
Patiala
(M.M. Kumar)
July 21, 2007
|