This post is about the fundamental rule of advocacy, mentioned by Quintin Hogg in his memoirs ‘A Sparrow's Flight’ together with my experience in the beginning of my career.
Lord Wilfrid Arthur Greene, was Master of the Rolls and is known for his work in the field of administrative law. He formulated two important principles:
- The Wednesbury doctrine of reasonableness {Associated Provincial Picture Houses Ltd Vs Wednesbury Corp (1947) 2 All ER 680}; and
- The Carltona doctrine that the duties imposed upon Ministers and the powers given to Ministers are normally exercised under the authority of the Minister by responsible officials of the Department {Carltona Ltd Vs Commissioners of Public Works (1943) 2 All ER 560}.
Quintin Hogg was a British barrister, a Conservative politician, and later Hailsham of St Marylebone. He also served as the Lord Chancellor. He has written his memoirs in the book titled ‘A Sparrow's Flight - Memoirs’.
In his memoirs, Hogg talks about a useful lesson learnt from Lord Green over dinner. At that time, he was an inexperienced junior at the Bar.
“Green: Supposing you were instructed in a case where you had two points to argue, both of them bad, but one worse than the other, which would you argue first?Hogg: I suppose I would argue the less bad of the two.Green: Quite wrong. You must argue the worse, and put your very best work into it. Eventually they will drive you into a corner, and you will have to admit defeat. You will then say,‘My Lords, there is another point I am instructed to argue. But I am not quite sure how to put it.’And you will then put the better of the two arguments, but not quite as well as it could or should be put. (After a little while) One of the old gentlemen on the Bench will interrupt you. He will say, But surely Mr. Hogg, you might put it in this way. And he will put it exactly as you really ought to have put it in the first place.At that stage you will lay your papers on the desk before you. You will raise your eyes to the ceiling. And, in an awestruck voice, you will say,‘Oh, My Lord, I do believe...’And then you will be at least half way into winning your case.”
Before Memory Fades
Fali S Nariman has written his autobiography ‘Before Memory Fades’. It not only contains anecdotes from his life but also what he heard and read. I wish I had read it, when I started practice but it was published in 2010, when I was about to retire :-( This advice of Lord Green is quoted in his autobiography.
Nariman’s autobiography It is one the best that I have ever read. If you haven’t then please do read it. During start of my career, I learnt this advice, the opposite way. Nevertheless, I did learn.
A Lawyer's Journey
Justice RM Sahai was a good Judge. He not only granted relief but also expanded the writ jurisdiction. He was elevated as the judge of the Allahabad High Court on 27.01.1976 and later to the Supreme Court (11.01.1990 to 24.06.1995). I have fond memories of him. He has written his autobiography ‘A Lawyer's Journey’ – worth your time and money.
Prior to elevation as a High Court judge, he was standing counsel and I had argued a special appeal (intra-court appeal) before a bench presided over by Justice GC Mathur and Justice KN Seth, which was opposed by him. When the bench allowed the my appeal, he not only praised me but encouraged me.
The Incident
In early days of my career, I argued a case before him. He was sitting singly in present court number-1. It was a case, where parties were distantly related and some rights were given to our client in a family settlement. It was given effect to and was accepted by the consolidation authorities in our favour. RN Singh appeared for the petitioner and I was for the successful respondents.
The case was taken up after lunch. I could not reach in time as I was on my legs in another court. The list was revised and Justice Sahai did not adjourn the case. He was impressed with the arguments and started dictating the judgement, allowing the writ petition. When I was told this, I took permission of the court, where I was on my legs and ran towards court number-1. I barged into the courtroom and made mention that the case was concluded by the Supreme Court decision in Kale Vs DDC AIR 1976 SC 807 = 1976 (3) SCC 119.
However, before I could understand, Justice Sahai lost his temper and he started scolding me. I had never been scolded or punished in my life, in my home or anywhere else, by any one. It was not that I was an ideal child but my parents never believed in the same. When scolding went on for some time, I could not take it, it was too much for me. I broke down – tears overflowed. This rattled Justice Sahai and he adjourned the case for the next day.
My father advised me to request the judge to recuse himself but being young neither could I suggest nor the judge himself offered. On the next day, the arguments were heard and judgement was reserved. The writ petition was allowed against me. It is reported in Ramdeo Vs Beni Madho {1982 All LJ 1163 = 1982 (8) ALR 691}. I think that the case was wrongly decided but could not be tested in the higher court as not everyone has the financial capacity to go to the Supreme Court.
I couldn’t understand, why such a good judge, who always appreciated and encouraged me, lost his temper; especially when I told him about the development of law that he didn’t know. I thought he should have appreciated me. But, this was my mistake.
My Mistake
The family of RN Singh was very close to us. He was much senior than me and I was quite free with him. After the judgement, I asked him, why such a good judge lost his temper. He explained and pointed out my mistakes.
- Firstly, he said I was not in a fit condition to mention during dictation of the judgement; especially, when I had run 100 meter dash to come to the court. The judge was dictating the judgement. I should have sat down, composed myself, and should have waited till the judge noticed me or made mention after the dictation was over.
- Secondly, the graver mistake was the impression that I gave to the judge. It appeared as if the Judge was not up to date with the case law and it sounded rude. Even if the judges are not up to date, this was no way of doing it.
Lessons Learnt
This incident taught me the first and the most fundamental lesson of advocacy - always give impression that the judge knows more than you and never commit the mistake that I did. This is also the point made by Lord Greene but in the different way. It also taught me other lessons that I remembered when I was elevated.
I never scolded any lawyer, when they corrected me. I made it a point to thank and appreciate them. And, whenever I lost my temper in a case, I always recused myself. The lawyers should never have impression that I may be biased because of the incident. I also apologised for my mistake.
Nevertheless, sometimes, if you are sufficiently senior, you may softly show a judge his place. This, at some other time.
This post is part of the series 'LegalTrek'. They are under the following sub-heading: Book review/ Biography, Drama/ Judgements, History, Managing Court & Judiciary, Office Management, Personal, Reminiscence/ Advice, Suggestions/ Opinion. If necessary, the division will further diversified. This one is under the sub-heading Managing Court & Judiciary.
One can access these posts in this series by clicking on the label 'LegalTrek' on the right hand side and this sub-heading posts by clicking 'Advice' or 'Reminiscences'.
LegalTrek - Reminiscences/ Advice
।। Avoid Legalese - Adopt Plain English।। Know Your Judge।। Soar Rather than Sulk।। One, Who arrests, Bears The Burden।। Then All Lawyers Are Lunatic।। Writing, Expressing - Improves Communication।। Keep The Judge In Good Humour।।
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