The Art of Silence When Arguing in Court

By Protik Prokash Banerji

Published on 10 October 2011

There is something that is even more necessary than speaking to being a good counsel. That is the art of silence; of knowing when not to speak.

When you are submitting before the Court, it is expected that you know the facts and the law and that you will speak of it.  It is necessary that the facts that you speak of are on record, that is, part of the pleadings of either party.

1. However, imagine that you are defending, and the Court has already indicated that it thinks nothing of the claimant’s case. The Court has itself formulated the questions which the claimant has no answers to, the facts that embarrass or negate his case and the law that is wholly against him.

The claimant has either put up a brilliant argument that nonetheless could not sway the Court or has spluttered into ignominious silence. Normally, in such situations the Court does not call upon you to speak. The presiding Officer or Judge simply taps with his pen, calls the stenographer and starts dictating. Yet, consider what would happen if the Judge now turns to you.  “Yes”, he says, “what do you have to say?”

2. Again, imagine that in a matrimonial matter involving delicate issues, you are arguing a question of such a fact. There is an allegation in favour of which your client has led positive evidence, and which completely damages the other side’s case.

However it is a very ugly fact, and cannot be presented palatably, by any number of euphemisms. Yet the whole thing is written in black and white.

You start your submissions and the Court is very focused on what you are saying. What do you do? Read out the shocking allegation in open Court, alongwith the supporting evidence?

Normally I give the answers in the column itself.  Today however, I am keeping this very short.  I leave you with two paragraphs, each ending with at least one question.

You write back. I will be following your comments eagerly. 

After around a week, I promise to answer the questions with what little I have learned in the last two decades or so.

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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  1. Ravish Sharma says:

    Protik Da…

    You need not to worry or hesitate while speaking truth and particularly when you are right at your stand. But at the same time the reputation of our client is also important as he has to face society afterwards.

    Firstly, in case if there has been no prior discussion over presenting the evidence in the court. My client has provided me with a positive evidence. Keeping this fact in mind, we can infer that since he/she has provided me that piece of evidence, he/she is absolutely aware of the sensitivity of the evidence. It is implied that such piece of evidence could be used in case of need. I would simply submit what is truth along with the piece of evidence.

    Secondly if my client has provided me with such piece of evidence, then if he/she has given his/her consent and has no objection over presenting such piece of evidence in case of need, then same has to be done what I have aforementioned.

    Thirdly if my client has expressly denied me from presenting that evidence and reason of giving me that evidence is for my own satisfaction then it becomes clear that such piece of evidence should not be presented for whatever goes wrong.

    In either of aforementioned situation, I would elaborate the first submission as it is uncertain what our client meant while giving us such piece of evidence. The thing is since he/she didn’t hesitated while submitting that piece of evidence to us and foremost reason why he/she approached the us and then the court is for justice. Moreover provisions over divorce in Section 13 of The Hindu Marriage Act, 1955 , Section 27 of The Special Marriage Act, etc expressly mentions about grounds like adultery, rape, sodomy or bestiality which sounds inhumane, nasty or obscene and many more such similar terms could accredited for such act but more importantly the law framers had the cognizance of same fact in mind while framing the law, still they mentioned it. Why… To ensure justice in case if such act is committed.

    In short I would confine my answer to a simple question. When we approach a doctor, what is the most important thing for us…? Cure or Privacy or Reputation…? I think cure is at the first place. As far as privacy concerned, we approached the doctor and being a prudent person he has the idea of keeping fact of disease, deformity, etc. a secret for our reputation except for unpredictable situation. Secondly as far as reputation is concerned person who is right and who is not wrong on his part should not care for what is said by people around him. For example in “Satyamev Jayate”, a popular television show’s episode over Child Sexual Abuse and many more similar ‘sensitive’ episodes, where people dare to come to the show and they express what loss they have suffered. And what we think about is gravity of the act which was undoubtedly wrong. Being a human being we think about the wrongfulness and not about the ‘act’. And for those who only think about the ‘act’ and makes fun of it, are not humans.

    With regards
    Ravish Sharma

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