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ADVOCACY SKILLS FOR NEW–AGE LAWYERS

ADVOCACY SKILLS FOR NEW–AGE LAWYERS

“Advocacy …today … transcends its traditional form of oral presentation in court and includes and finds critical expression in written forms in which expertise is called for of the advocate and which can have a decisive effect on the outcome of a case … Counsel now requires expertise at least as much in preparing written skeleton arguments as in making oral submissions.”

Hon. Justice Lightman, Address to the Chancery Bar Association Conference, 2004

The practice of law is diverse and every lawyer has to grapple with myriad legal problems. Lawyers have a duty not just to themselves, but to the public at large to ensure that they are sufficiently skilled to serve the public interest. Ordinarily, certain basic legal skills are required of all lawyers, viz., the ability to analyse issues in light of the existing laws; synthesising the material keeping in mind that many issues are multifaceted; giving intelligent counsel to the clients; communicating and writing; and above all, negotiating effectively.

Since advocacy involves conducting independent litigation in courts, both civil and criminal, lawyers are expected to possess a high degree of confidence, expertise and a sense of responsibility. Advocacy in courts involves various skills and litigation strategies, most of which are not taught in an LLB programme. Traditionally, they are acquired during the early years of practice. However, with recent developments in practical education and training, it is now possible to acquire some of these skills while pursuing legal education.

ADVOCACY SKILLS
WRITING SKILL AND ITS PERSUASIVE VALUE

An advocate’s primary role is to represent the client’s point of view and interests as effectively as possible. Lawyers must be able to use their advocacy skills, both written and oral, to collect evidence and present convincing arguments as to why a particular outcome is desirable.

The written skills come first with several benefits. Firstly, if you write clearly, your court will be able to understand the logic of your argument, as in legal writing, logic is the biggest persuading factor. Secondly, writing style affects the reader’s attention. For lawyers, a well-written document means a writing style that captures the judge’s attention. Thirdly, writing well and eliminating errors will enhance your credibility, i.e., you will be lauded for paying attention to detail, and organising as well as articulating your arguments.

Considering the above-mentioned factors, written submissions should be well-organised and concise. It is equally important that they are properly formatted, as the higher courts can be strict in accepting documents if they do not follow the established norms pertaining to presentation. More importantly, judges will be pleased at well-written and organised material.

ORAL SKILLS AND THE ART OF PERSUASION

It is often said that ‘oral argument is an art that takes time to refine’. Lawyers must be able to advance those arguments which have merit and recognise those which do not. When lawyers on the opposing sides are aware of the strengths and weaknesses of arguments, they can conclude a case with economy. This in turn ensures that the judge is able to focus his attention on giving judgments of a superior quality in only the essential conflicting areas.

Many lawyers do not have enough practice in public speaking. Unfortunately, there is no formal ’Continuing Professional Development’ programme of advocacy in India. An aspiring advocate needs to obtain a qualifying degree only, and is not required to receive any training in advocacy skills, which proves to be a major handicap in future career prospects.

PRACTICAL OR CLINICAL TRAINING IN LAW

Honing of advocacy skills requires specialised and in-depth training. This involves acquiring and developing drafting skills, oratory skills, and analytical skills for analysing legal and factual issues. In addition, one must be capable of interpretation, negotiation, imbibing court manners, formulating techniques of interviewing and counselling clients, arriving at legal remedies, amongst others.

Let us discuss some of the popular and effective clinical training tools in law:

MOOT COURTS

A moot court is an extra-curricular organised in law schools wherein students participate in simulated court proceedings. It involves drafting of written submissions as well as presentation of oral arguments. Although moot court does not involve testimony by witnesses or presentation of evidence, it does focus on the application of the law to the particular problem.

Moot court competitions are typically sponsored by law firms or organisations with interest in a particular area of law, and the moot court problems address an issue in that field. Competitions are often judged by legal practitioners with expertise in the particular area of law and sometimes by sitting judges.

A moot court competition roughly parallels an actual court proceeding. Participants receive a problem ahead of time, which includes the facts of the underlying case. Students are expected to research and prepare for that case as if they were lawyers or advocates for one of the parties. Participants are required to submit written submissions and participate in oral arguments. The case or problem is often one of current interest, sometimes imitating an actual case, and sometimes fictitious touching upon difficult legal issues.

CLIENT INTERVIEWING AND COUNSELLING SESSIONS

A notable function of client interviewing is to understand the expectations of the client. Unless the interests, expectations and concerns of the client are understood, the lawyer will be unable to counsel the client. In an interview, lawyers elicit information from their clients, which forms the basis for their advice to the client. An exposure to interviewing techniques is a critical skill, which every lawyer must possess. Moving ahead, legal counselling is the process by which a lawyer advises the client. Since clients may seek advice as to proper legal course of action before a court of law or as to estate, tax or business planning, counselling can be for litigation or planning. COURT VISITS

Visiting courts to attend trials and maintaining a record thereof is an extremely useful exercise. The observations of trials or cases should be for civil as well as criminal cases. Besides introducing the budding lawyers to the proceedings of a trial, it also broadens their perspective since more often than not issues are multifaceted touching upon several areas of law.

LEGAL EDUCATION AND ADVOCACY SKILLS

Legal Education should necessarily focus on the lawyering or advocacy skills. Moot court competitions, client counselling sessions, client interviewing and debates assist the students in acquiring the skills of sifting the relevant facts, listening and enquiring, gaining the confidence of the client, in addition to applying the law to the facts.

The Bar Council of India has laid down ‘Rules on Legal Education’, where under the universities have been asked to adopt a ’practical training scheme‘. This scheme envisages three chief modules:

  • Moot Court
  • Observance of Trial
  • Interviewing Techniques and Pre-trial Preparations.

This scheme has given the desired thrust to Indian legal education. Ideally, all law schools should implement this scheme, but majority of law schools in India focus on teaching topical subjects with little emphasis on the development of the practical skills.

It has been argued that the intervention of the Bar Council of India may be necessary in order to give the skill-based courses a policy thrust. Having said that, it cannot be denied that the structure and methodology of legal education in India has changed and improved with the passage of time. In addition to the traditional three years law course, several law schools (particularly all the National Law Schools) have introduced the five years integrated law course, wherein theoretical and practical legal knowledge is imparted with an emphasis on the ‘soft skills’, which are essential for a successful career as a lawyer.

STUDENT MOTIVATION IS CRITICAL

Everything cannot be blamed on the institutions. Students too have to be self-motivated, committed and responsible. They should show interest in learning these skills by utilising the available opportunities in an optimal manner. The years spent in law school can be valuable in enabling the prospective lawyer in making the best possible practical application of the text-book gained knowledge. A number of diploma courses are also available that enable law students to develop specific skills of arguing, interviewing and client counselling.

Similarly, by opting for internship programmes, which can be pursued with lawyers, law firms, or business organisations while studying for the LLB degree, a prospective lawyer can considerably enhance his practical skills. Internships are an integral part of legal education and make a significant contribution towards the professional development of a law student.

NEED TO BOOST CLINICAL LEGAL EDUCATION

Earlier it was sufficient for the aspiring lawyers to restrict their knowledge to the theories of law, statutes and precedents. However, in order to meet the emerging challenges of the modern day legal system, it is imperative to gain clinical legal education as well.

‘Clinical legal education’ is based on practical approach and thus helps to hone one’s skills. The skills may include communication skills, interviewing clients and witnesses, counselling, negotiating and problem solving skills. It includes not only the clinical courses, but also practice oriented courses and activities, included in or offered outside the curriculum.

Bar Council of India issued a circular in the year 1997 whereby all universities and law schools were directed to revise their curricula. It included 21 compulsory courses and two optional courses, leaving it to the discretion of universities to add more courses.

The circular also mandated the inclusion of four practical papers. Law schools have been required to introduce these four practical papers since academic year 1998-99, which was viewed as a great step towards introducing clinical legal education formally into the curriculum.

Although the Bar Council of India has prescribed the standards of legal education with due attention to practical learning techniques, the curriculum adopted at various law schools has not been structured to give adequate emphasis on the clinical training programmes. The disparity between the academic knowledge and practical knowledge can be reduced only when a balance is struck between the prescribed law curriculum and the teaching methodology actually adopted in law schools. The lecture scheme adopted in law schools, where practical training is either completely neglected or marginally implemented in the form of moot courts and court visits will not help the new age lawyers in the current scenario.

The primary reasons that have led to the failure of several law universities in establishing a clinic in the law schools facilitating the experimental learning of law are lack of infrastructural support and funds. Those law schools, where such clinics do exist, lack of faculty having the competence and knowledge in clinical training acts as a handicap. Another vital constraint that hampers the meeting of high standards of clinical legal education is the high teacher student ratio. Since law is an interactive discipline, there should be a low student-teacher ratio to ensure adequate supervision and sufficient practical learning.

THE NATIONAL LAW SCHOOL OF INDIA UNIVERSITY: ADOPTING THE CLINICAL APPROACH

In order to achieve the objects of the Bar Council of India’s clinical programme, National Law School of India University (NLSIU) offers a wide range of opportunities in clinical programmes, compulsory as well as optional, to the students. The compulsory clinical courses include (a) Client Interviewing, counselling, and Alternate Dispute Resolution methods; (b) Litigation Clinic; (c) Special Clinic integrated with compulsory placements of two months from third year to fifth year of the LL.B. course. The optional component of the scheme includes: (a) Moot Court (b) Legal services Clinics; (c) Community-based Law Reforms Competition.

A national movement for a ’clinical approach‘ to legal education has thus begun with the setting up of the NLSIU in Bangalore in 1986 and the various National Law Schools across India. However, the dichotomy between the three-year LLB course and the five- year integrated law course continues till date. The question whether it is feasible for other law schools and universities to follow suit and make clinical legal education mandatory for facilitating performance based legal education, is open to debate.

Mr. Rajeev Gupta President, IMS Noida

Is the legal Education in India geared towards imparting practical training to the prospective lawyers?

The Indian Legal education system does not really have the provision for practical training to the prospective lawyers. In fact, curriculum needs to be redrafted, re-inferred for making it industry friendly, litigation practices friendly and apt for a larger pace of law. The National Law universities which are very successfully creating a difference in the Indian Legal Education system have a broader perspective in this regard. The Bar Council of India’s support shall be very important to colleges in this regard.

What steps should be taken to boost Clinical Legal Education in the Indian Law Colleges?

Clinical Legal education, in fact, does not find inclusion in the curriculum of most of the Indian law Institutes and Universities and there is a need to cover this, which as a concept is at a quite nascent stage in India. This inculcates proficiency, competency with analytical abilities right from studenthood. This can develop a budding lawyer into Juris Doctor. Clinical Legal education is a modern trend that allows students to practice law under an attorney’s supervision. Legal Clinics need to be established in the Law institutes to create and develop facilities and infrastructure. The divergence between Law in Books and Law in action calls to strike a balance between the law curriculum and teaching pedagogy.

Which extra-curricular activities help in enhancing the communication and presentation skills of students pursing LL.B Course?

Presentations and Communication skills are relevant in any professional course. An institution before selecting and short listing students for any such program must be concerned about the intake and know about the revenue. There is also a need for revision in the fee schedule of Universities in order to enable the institute to take up the legal and business communication skills.

What are the advantages of pursuing a Five-Year Integrated law Degree Course as compared to the Three year degree Course?

Any professional course in India that reduces the duration of the course is preferred by students and even parents. Institutes are having combined BA LL.B , B.Com LL.B & BCA LL.B and even BBA LL.B as a choice in integrated law program. Not only this, the student is more confident about his career just after his 12th.

How does IMS, as an upcoming institute, ensure practical training to its students in law related courses?

We prepare, provide and impart practical terms of law through a perfect blend of in house counsels as well as industry experts who are well versed with the Indian judiciary system. This brings to the table a dual angle visionary approach for the student to understand both the facets of the corporate world as well as the core traits of the judiciary. Apart from debates and discussions on issues arising out of a particular judgment by organizing a panel discussion inviting legal professionals, we also organize several half-day and day-long seminars on topical issues with practical knowledge by 10-12 speakers. Students are also sent for internship with reputed law firms and corporates to gather experimental learnings. Moot Court is yet another feature of the institute wherein a particular subject matter, case either a real live case or a hypothetical one is arranged in a virtual court set-up.

About Author

Richa Kachhwaha

Richa Kachhwaha is a Guest Editor with Lex Witness. Ms. Kachhwaha holds an LLM in Commercial Laws from LSE and has over eight years of experience in banking and company laws. Currently, Richa is involved in legal writing and editing with over four years of experience. She is also a qualified Solicitor in England and Wales.