How Lawyers Argue a Court Case: “The Phrases of The Complete Lawyer”

By Protik Da

[retrieved article; some formatting errors might have crept it]

One of the most important weapons in a lawyer’s arsenal is “argument”. The word “argument” engenders visions of debate, the heat and fury of positions attacked and defended strongly, though with words.

That may happen of course, in today’s litigation, but generally the arguments which win cases are not replete with drama, sound or fury.  That is because mature reflection goes into a judgment, not a momentary lapse of reason or a sudden storm of emotions.

Peculiarly polite

We prefer to call them “submissions” before the Court since it is consistent with our peculiarly polite way of putting things.

We start submitting before the Court saying “May it please your Lordship” and then pause a moment, as if unless the Hon’ble Judge says “Thank You” (as they ought to and as at least one Hon’ble Judge in my experience used to say) we would simply stop talking, and punctuate every second sentence with a “My Lord” and after the case is decided, if it goes in our client’s favour “Much obliged to your Lordship” or “Grateful to your Lordship” and if it goes against us, “As your Lordship please” or  “So be it, My Lord”.

How these things were formulated has many answers, but the most commonly accepted one is that these hark back to the courtly culture of a High Court of the King, where unless the King was pleased to suffer you speak, you had to keep quiet.  What you say must please him.  A bit like “Her Majesty’s Loyal Opposition”.

A method to madness: Our Learned Friend

We argue before the Hon’ble Court on the basis of facts we have pleaded in our pleadings, and to elucidate the points of law. However there is a method to our madness.

We are not supposed to use such language as is un-parliamentary or would show discourtesy to the Hon’ble Court or the opponent.  That is why we always refer to the counsel on the other side as “Our Learned Friend”.

Previously there used to be a distinction in the manner that we addressed learned advocates on record and the learned counsel, but after 1961 and our Advocates Act, there is no such differentia in address.

Even if you have known the opposing counsel as a family friend, even if he is old enough to be your father, even if he knows nothing of the law, he is still your “Learned Friend”.

How to say that the learned friend is wrong

When a learned advocate says that which is not true and he is supposed to know that it is not, the usual formula is not to say “My Lord he is lying”.  That would be a worse solecism than the untruth itself.

The almost institutionalized formula we use is “My Learned Friend is not properly instructed”, or if we want to be really censorious, “That submission by my learned Friend is perhaps not borne out by the records”.

When the opposing counsel is submitting things that are not on record, nor pleaded, we usually say “but that is beyond my learned friend’s clients pleadings and is not on records”.

Fraud is never committed by my learned Friend, but only by my learned friend’s client.  My learned Friend can never interrupt, but he ought to allow me to finish.

Etiquettes in passion

Sometimes passions run high.  Even during those times, court etiquette requires that you never address your opposing counsel directly.  You have to route it through the Hon’ble Court.

An example would be when a persistently rude lawyer is always jumping up to comment whenever you pause to breath.  You don’t ask him to allow you to finish.  You keep on looking at the Hon’ble Judge and say things like “My learned friend ought to allow me to finish” or “I am sure my Learned Friend will have his turn”.

The trick is not to be provoked.  A case is won by a cool head, and if you are prone to losing your temper, then the opposing counsel will certainly exploit it by sledging, in this context meaning to keep on making sotto voce comments that you can hear, but may not reach the Court or may reach the Court and you but can be passed off as a comment to the opposing counsel’s own juniors.

The moment you pause to reply to such off the cuff remarks, you lose the thread of your thoughts and the skein of your submissions.

Reminding oneself, not the court

Sometimes, a case can spread over several days, with a lot of time in between.  It is not always possible for the Hon’ble Judge hearing the case to remember everything.  Yet the Hon’ble Court is presumed to have “total recall”.  You cannot be honest and start submissions by saying “To remind your Lordship:.  The usual phrase is “Just to recapitulate for my own benefit”.

Very often you will find that the Hon’ble Court does not understand a point of law that you have been arguing for a long time.

You cannot show your irritation or say anything that would imply that it is the Court that does not understand.  You have to say “I am afraid/I am sorry that/Perhaps I could not make myself clear.  It is my fault.  May I rephrase myself.”

Much-talking Judge is like an ill-tuned cymbal

Even though quite a long time back Francis Bacon, then Lord Chancellor, commented about garrulous Judges that a much-talking Judge is like an ill-tuned cymbal, in real life they are the norm.

Many a Judge will not let you formulate a point of law, finish a thought or a statement without asking a hundred questions. It is neither proper nor profitable to brush the question aside.

If you are senior enough, you get away with “I will come back to that” or “My Lord I will answer that directly” or ” I will satisfy your Lordship” and then go on with what you were saying; mostly though, you will have to answer the Court.

At those times, you must add a rider. “I must answer your Lordship’s query, but your Lordship will grant me the indulgence to come back to my principal submissions thereafter”.

Courtesy, detachment and finesse

The reasons why we use these euphemisms and courtly phrases, rather than how they came into being are far simpler.  Since we are required to submit to the Court and seek an order from it, and since the causes we represent are not our own, we must show courtesy, detachment and finesse.

These small things impress the Hon’ble Court, avoid enmity and passion play, and make our points with the greatest emphasis. We shall revisit these precepts in the next part when we discuss the basic structure of an argument in law.

Questions for Protik Da? Please leave them as comments below. We’ll request him to answer them when he finds the time.

Mr. Protik Prokash Banerji, popularly called Protik da by law students is an advocate at the Kolkata HC. Interning at his chambers is an experience of a life time. People who learn drafting and oratory skills from him swear by the excellent teacher he is. He talks about movies and literature as authoritatively as he talks on law and wrote on such subjects for the Economic Times in 1994-1995. Presently Protik Da is the Junior Standing Counsel, Govt of West Bengal, HC at Calcutta.

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Comments Till Now

  1. Aaron Keishing says:

    My lord is no more in use, I think. It is supposed to be your honour, not my lord. Please enlighten me.

  2. periya chakkaravarthi says:

    good article

  3. Tarkeshwar Singh says:

    That was very good advice .And a great platform to the beginner’s and law students..

  4. I think this article helpful for new comer in Lawyer field that might me very helpful. And Protik you have shared nice stuff and good words in your article.

  5. Aiban pakyntein says:

    i am amazed by your article. thank you for sharing your thoughts with us
    regards
    Aiban, Shillong

  6. E S Jagadeeshwar says:

    When an Advocate appears before any Court, the Judicial Officer is watching the behaviour of the said Advocate. Polite and submissive behaviour is very useful. Shouting should be avoided. Sometimes some of the Advocates to turn the concentration of other Advocate they will shout in the Court. Such behaviour must be avoided. Instead of using direct language use passive language. You have to know how to win the heart of the Judicial Officer. Be polite and maintain cordial relations. You have to receive positive order from the Court.

    • It is sad that a positive order depends on how to address the Judicial Officer. Should’nt it be based on facts and proofs in the case. Why is there a need to “win the heart” as you have written. Definitely the Judicial Officers are public servants meant to hear the facts in the case and give the suitable order as per law.

  7. siji kumar says:

    For me , the said article is quite informative and interesting throwing lights on certain cardinal areas where a counsel supposed to excel.

  8. Sir, I have a situation, I filed a case against a bank in consumer forum. Court ordered dismissal of case as bank says it deposited money and gave me clearance certificate. Fact on ground is, bank closed my account as I filed the case. No money is deposited in account instead bank submitted negotiable instrument to court. While writing order court perhaps didn’t noticed it.
    I first filed application to court to execute the order. Court didn’t processed my application but said it can’t be processed as order is ‘dismissal of case’. I said, fine then allow me file application to review case or appeal in your court itself. Court said now the appeal date is over. It appears like am blocked!
    ‘There has to be a remedy to any legal situation’. Would you please help me to recall the correct quote/phrase to say this?
    Regards,
    Sudarshan

  9. Pawan Pathak says:

    Indeed very informative protik sir..thanks to en light us with your knowledge.

  10. Ghanshyam Sharma says:

    Nice. Great. Helpful.

  11. Kindly send me next article…basic structure of argument in law

  12. Dear Sir,
    This is in reference to the last para of your write-up. Where can I find your write-up on “the basic structure of an argument in law”? I’ve been looking everywhere.
    regards,
    Tashi

  13. Dear Mr. Protik,
    Beautiful!!! I wish I’d met someone half as eloquent as you in my younger days (not that I’m very old), my work would surely have been trebele as good today.
    regards,
    Tashi, Gangtok, Sikkim

  14. Adv.shazia says:

    v inspiring article…

  15. g.sujitha says:

    it was super. but in fact nobody is following this

  16. ASIS KUMAR GHOSH says:

    I am here after retiring from my service on superannuation. I have started to practice law without any knowledge of procedures of Calcutta High Court . I am afraid I can’t make anybody understand that I know nothing about the procedures of Calcutta High Court . The Article has taught me a lot for all practical purposes. I am very grateful to you. Sir , may I request you to enlighten me how to draft a writ petition from the records supplied by my clients ? Which records are to be kept and which are not to be taken ?

  17. The wait for me wait for me Penguin says:

    To the man who hides behind the tea towel: Whats the next lesson? The 3 C’s of Advocacy? You may as well start them on the 2nd C and lead them into the intricacies of Roman Law……. Perhaps you should just let the kids come and learn 1st hand……

  18. Frankly Speaking says:

    At the very outset let me say that the article was very informative. Thank you.

    However, in my opinion, these phrases are NOT needed. They were relevant when feudalism was the order of the day. The judges were “living in ivory towers” as Nehru rightly said.
    Now, the lines between the judge and the counsel have obliterated to a large extent, class-wise. But the custom of saying “your lordship” at the end of every sentence remains. And we continue being servile to the judges without knowing why we are doing it.

    I am not saying for one moment that we should stop being obedient to the court and walk into the court tomorrow and say “yo! Whats up dude!”, to the judge. Of course, the court must be respected. The Judges must be respected.
    What I am saying is the servility should be toned down a little. Maybe rephrase it a little? The Judges are NOT our lords. This is the feudalism speaking.

    There should be a difference between being polite and being servile. I think we are confusing between the two.

    • Protik Prokash Banerji says:

      The forms of address and the Court etiquette I wrote about relate to Chartered High Courts. These are, as you know very well, Courts established under the various Letters Patent under the High Courts Act, 1861 unlike other High Courts established under the Government of India Act, 1915. These Letters Patent and the Act of 1861 gave the same jurisdiction and traditions of the High Court in England to the chartered High Courts. Article 225 of the Constitution of India preserves these unless altered by legislation made by a competent legislature. Even after the recent pronouncements of the Hon’ble Supreme Court, there is no such law as would alter the existing procedures and conventions. Besides, these make the Hon’ble Judges feel comfortable and better disposed. They do not start thinking that they have been made feudal Barons. We do not think we are serfs. It is just like referring to a Bishop as “Your Grace” even if he is not particularly Graceful. In the US they get away with ‘your Honour’. So do we, in the subordinate judiciary! So it is pretty much up to you how you address the Judge you are appearing before – just remember that militant egalitarianism gave us the Reign of Terror in 18th Century France and that true self respect is in the mind and not in the external appearances.

  19. Hello Sir,
    That is a truly ingenious piece of writing. In the first two years of law school that I have spent till date, I have come to a better understanding of modestly in the court room. The baffling enormity of courteousness has turned into comprehending its genial necessity.

    During my internship in Supreme Court last year, I came across the rule: “You CANNOT bring audio or video recording devices into the court.” What exactly is the rationale for this? We know that most criminal trials are public and therefore, the journalists are allowed inside the court to report on its happenings, so why can’t they or the public bring in anything to record it?

    Does this rule simply traces back to tradition, or is there another more coherent reason to this?

  20. Anonymous says:

    There is nothing so great about this article. Just a few months into litigation and you can learn these things on your own by observing how others conduct themselves. Such articles are by people who tried to litigate half heartedly and failed. Would hate to learn anything from anybody who has been a failure

    • administrator says:

      Dear ill-informed,

      Protik Da is one of the best lawyers in the Kolkata HC.

    • Protik Prokash Banerji says:

      Well you know the old saying, Anonymous, “Those who can, do. Those who cannot” (like me) “Teach”!

  21. Sravanthi Bhamidi says:

    This was very informative. Thank you.

  22. Neeati says:

    Hello Protik Da

    What a brilliant article! You make writing seem so effortless. During my short stint of two years at law school, I learnt the important of inculcating etiquettes and humility as a part and parcel of my general speech. Mooting helped a lot too with all ‘Much obliged your Lordship’.

    I have a query. During my internships at Patna High Court and Delhi High Court, I have seen a few judges transgress the professional boundaries and say unwarranted things to the pleading counsel. I do not know what is the scenario everywhere else but I know what I saw there. How does a lawyer keep his cool in these situations when the attacks are more of a personal nature questioning your very ability to practice law? I am extremely hot headed and I CANNOT have a neutral expression on my face. I have toned down a lot due to moots, debates and presentations but I still get very worked up if a stupid, personal question comes up or a similar argument is made.

    How do I work upon it?

    • Protik Prokash Banerji says:

      Dear Neeati, sorry for the delay in answering. I have no excuses except that professional commitments kept me away from Lawctopus, dearly that I love it, for a while.

      To answer your question, what you described is universal in India, though perhaps not very routine. When Hon’ble Judges speak like that, usually they forget an important thing:- respect must be given so that respect is given, in return. However, if by some mischance you are at the receiving end of such judicial ire as you spoke of, just tell yourself that if you lose your cool, you will be doing your client a disservice in the short term and yourself a great harm in the long term; such judges usually are also those who nurse a grudge for a lifetime. Answering back in kind will merely assuage your feelings without either teaching anything or achieving anything. If that does not work, simply hang your head so that you don’t have to meet the Judge’s eye. Chances are, when the Judge finds that he is misbehaving with someone who won’t respond or acknowledge it, he will stop.
      There’s another method which I once used. An Hon’ble Single Judge, who was very abrasive, made very uncharitable comments about me and the character of my client in a theft of electricity matter. She said “Your clients are crooks just like you”, which was a bit too thick for anyone. So I pasted on the best smile I had and submitted “Yet your Lordship must accept that the law is the same both for the crook and the saint – and I thought your Lordship would appreciate the honest way in which I presented dishonest cases”. The Judge could not help laughing, and had no option but to hear me out. I won the case. Its a separate matter that I avoided her Court thereafter.

  23. Rupam Gupta says:

    Protik da rocks. A very Inspiring read … as always .

  24. Was a pleasure reading this article.

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