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.

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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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