What Do I Expect from an Advocate?

A Great Calling

The profession of law is a great calling, and to discharge the responsibility the member of this profession must make himself equal to the task. Law is a great profession of talents, and talent is bound to make headway through any vicissitudes of circumstances, and through any reversals of fortune.

The profession calls for great knowledge, high mental capacity, and wide culture. Porsyth says that “it is well to erect a lofty standard” in view of “the momentous questions which are confined to his skill, involving all that is dear to man” and remembering “that when life, or property is at stake, or the poisoned shaft of calumny is quivering in the heart, his office is to stand forth, and shield the person, or vindicate the character, of those who are assailed, and who fly to him for protection, or redress.”

He adds that ‘without an adequate conception of the requirements of his office, it is utterly impossible that he can perform the duties, which, by its very nature, he stands pledged to society to fulfil. How can he hope to thread the mazes; of Intricate argument, if his mind is not disciplineed by the habit of accurate reasoning?; or, to advise safely in some perilous emergency, if He has not thoroughly digested, and made himself master of legal principles?

Seven Lamps of Advocacy

Judge Abbot Parry mentions Honesty, Courage, Industry, Wit, Eloquence, Judgment, and Fellowship, as the seven lamps of advocacy.

Dealing with Honesty, he says that ‘the best advocates of all generations have been devotees of honesty’, and cites the case of Abraham Lincoln ‘who founded his fame and success on what some called perverse honesty’.

Referring to Courage, he says: ‘Advocacy is a form of combat, where courage in danger is, half the battle. Courage is as good a weapon in the forum as in the camp’.

‘Advocacy’, he says, ‘is indeed a life or ‘Industry’, and an advocate must study his brief in the same way that an actor studies his part. Success in advocacy is not arrived at by intuition’.

“The lamp of Wit is needed to lighten the darkness of advocacy. Often the wit of an advocate will turn a judge from an unwise course, where judgment, or rhetoric would certainly fail’.

According to him, ‘eloquence of Manner is real eloquence’, and there is a ‘physical as well as psychological side to advocacy’.

As regards Judgment, he refers to it essentially as an intellectual capacity, ‘the inspiration’ which enables a man to translate good sense into right action.

Speaking of Fellowship, he says that it is ‘exactly like a great public school, the boys of which have grown older, and have exchanged boyish for manly objects. There is just the same rough familiarity, the general ardour of character, the same kind of unwritten code of morals and manners, the same kind of public opinion expressed in exactly the same blunt, unmistakable manner’. He concludes that by keeping the lamp of fellowship burning, we encourage each other to walk in the light of the seven lamps of advocacy.

Eighth Lamp

To this may be added an eighth lamp, and that is Tact. Many people of unquestioned ability have failed to achieve a fair measure of success in life for want of tact. It does not pay at all to an advocate to quarrel with the Court, or to loose temper over trifle nothing.

Equipment of An Advocate

Honesty, Integrity and Character

Above everything, I expect an advocate to be honest, and a man of integrity and character. An advocate, who is straightforward, and who is possessed of these three jewels is appreciated by the Court and the client alike. These three virtues go a long way towards the success of an advocate. The noble exhortation of Lord Coke to the lawyers of England should always be borne in mind: “There is no jewel in the world comparable to learning; no learning so excellent both for princes, & subjects as knowledge of laws;.....cast thine eye upon the sages of law that have been before thee, and never shalt thou find that hath excelled in the knowledge of these laws, but hath, sucked from the breasts of that divine knowledge, honesty, gravity, and integrity”.

Patience, and Perseverance

Nothing pays in this profession more than unremitting industry. Even mediocre men go far ahead in the profession than those who are better than they by sheer dint of industry. As the saying goes: ‘Perseverance is the right-hand of success, and Patience her left-hand’. Let us remember, on the portal of the temple of law is written a specific inscription: ‘Only those capable of labour, with maximum patience, self-confidence, and faith are welcome. Let none with a defeatist, and pessimist mentality, and irresolute mind enter it”. To such person only shall the great portal swing open, and his feet be set on the path. Exact thinking, and exact expression are essential for an advocate. In the words of Daniel webstor: “Accuracy, and diligence are much more necessary to a lawyer than great comprehension of mind, or brilliancy of talent. His business is to refine, define, split hairs, look into authorities, and compare cases........If he would be a great lawyer, he must first consent to become a great drudge”.

Legal Learning

I expect an advocate to be well-equipped in legal learning. He should study the law, and not merely read it. I wish to stress the need for studying a thing not once, but many times. The law should be studied in a spirit of enquiry. The enquiry must be in a spirit of doubt. The spirit of an advocate should be a spirit of unsatisfied research. It does not mean that he should come to no conclusions of his own, or desist from presenting them. As an advocate he has to present conclusions with force, even when he is in doubt. He should never take anything for granted, but examine it, and satisfy himself what it is, or is not. He must always take the attitude of a prativadi against himself, and should know the opposite view as well as hig own.

General Education

An advocate should not only be well-versed in legal lore, but he should also be a man of wide culture. He should have full acquaintance with History, with Economics, and with other Sociological Sciences. His general ability, and knowledge of International Law also should be up-to-date. Unless equipped with these he will be, as Sir Walter Scott would say, but a working mason only. If gifted with a knowledge of these subjects, he can claim to be an architect in the profession. There never was a time when the profession of an advocate was of greater importance, or responsibility than today. He should be fully alive to the great obligation that lies upon him to play his part in shaping the life of the community, and the country. The profession of law, therefore, calls for greater knowledge, or greater intellectual grasp. The magnitude and intricacy of many of the trials in this decade of ours call for the highest mental capacity.

Memory

The next point I Want to emphasise is the cultivation of memory. An advocate should possess tenacious memory. Professor Blackie has said: “It is of no use gathering treasures, if you cannot store them, it is equally useless to learn what you cannot retain in the memory”. By ‘memory’ I do not mean wholesale reproduction, but the faculty of the mind that will help an advocate at the hour of need to put his hand in the proper place, one that Ss cultivated and gained by system, order and classification, as the result of intensive study.
An advocate may have in memory many cases, but if he has not the skill to use them they are of little benefit to him. ‘To be available, the law of the case should be condensed into compact mental judgments, and in that form woven into the mind, and not simply stored up in memory’. So, in addition to wide learning, an advocate should cultivate the habit of intensive study. No one can hope to remember what he only vaguely and indistinctly apprehends. He should, therefore, study with precision, and accuracy. He should arrange them on the shelf of his mind lin their appropriate places. An orderly, and classified study will also permanently fix them to his mind.

Study of Law Reports

I also expect that an advocate should keep himself in touch with the growth of the law by reading the current law reports. As a learned writer says: ‘Reader will find in them suggestions that win lead to a train, of thought, which will clear away doubt, and perplexity, and light up more than one dark corner’. It will be greatly helpful to an advocate it he draws up head-notes for the reports that he studies, as that will clarify his ideas, and give him accurate knowledge.

The Use of Legal Phraseology

An advocate should use legal phraseology in legal parlance. Just as poetry has a structure, and a phraseology peculiar to itself, so has law a form and language of its own. The effect which is produced by using legal phraseology cannot be obtained by using any other common expression. The elegance and dignity of arguments in court are enhanced if the language employed ts correct.

Manners in Court: More important than intellectual equipment is moral equipment

An advocate is always expected to maintain calmness, and self-possession, and a pleasant humour. He should be respectful to the Court. He owes this duty not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. He can be deferential without being abject, and independent and fearless while being respectful.

He should never interrupt the Judge when he speaks, but should wait for the judge to complete his statement. He should take time to consider the question put by the Judge to him in all its aspects, and then give his reply. A hurried reply may lead him into a trap.

An advocate should neither argue when he is not called upon to argue, nor continue his arguments when the Judge is in his favour, and is not anxious to hear more from him.
An advocate should not lose balance, or temper if the Judge does not react as he expects. If the point that he seeks to make is really a good one, the forcible submission of it, with humility and modesty, without taking up a challenging attitude, to likely to bring round the Judge in his favour. An exhibition of surprise, or of temper, on the other hand, is likely to prejudice his cause. The advice of a successful lawyer is: ‘Confront difficulties with unflinching perseverance and good humour, and they will disappear like fog before sunshine’.

Presentation of Case: An advocate should first present his best point

He should not be in Hurry. He should be cool and calm so as to be able to arrange his thoughts in proper sequence without confusion. To no one else is self-possession of greater value, and productive of better results than to the advocate.

In presenting arguments it is always expected that an advocate snould quote chapter and verse in support of his submissions. He should capture the mind of the Judge by the overpowering directness and force of the ‘first presentation’ of his case. He should remember that the language quoted from a decision or text-book makes a greater appeal to the Judge than when it is expressed in language of his own. It, therefore, behoves him to make a thorough preparation, and arm himself with appropriate citation.

An advocate should avoid the bad habit of using ‘inaccurate expressions’. A lapse into inaccuracy, or deliberate ‘misstatement of fact’, any one of these may easily create an unjust impression upon the Court. An advocate should not also conceal adverse points.

The preparation that an advocate has made in a case should enable him to assess each fact at its proper value, and to determine its exact effect in relation to the whole case. It is better to ‘marshall the facts’, and present them in a ‘chronological order’. The advantage of giving dates is of course obvious. It enables each step in narration of facts to be checked by the other side, and by the Court. It is the best ‘media’ for retaining in memory the sequence of events, and their logical consequences. An advocate should make a point of stating facts carefully, and clearly, and guard against slurring over anything. Above all these, an advocate should press his points on the attention of the Judge in a very lucid, clear, pleasant, and impressive manner. He should ‘never repeat’ his arguments, because repetition sometimes irritates the Judge.

Citation of Authorities

Before citing authorities the facts of the reported case should be thoroughly mastered. In nine cases out of ten the facts make all the difference. What seems to be an authority, may turn out to be irrelevant, or even a decision the other way, when the facts are closely examined. Nothing can Justify an advocate in deliberately quoting decisions which he knows to be inapplicable, or overruled. He should always take care of citing the ‘latest authority’ on the particular point he wants to press. It is always advisable to cite the ‘best case’, instead of a number of cases, which only create complications. If a Supreme Court, or Privy Council decision, or a decision of his own Court is available, such cases should be placed first. The skill of an advocate lies in making the selection from amongst several decisions. He should study the decisions, and find out the best from amongst them. It is always better to cite as ‘few cases’ as possible, which are either on all fours to the Point under consideration, or which have a close resemblance to the facts of the case in hand. It will be well to remember that ‘sound arguments beget sound decisions’. Many of the best judgments, it will be found, are but reasoned and authoritative summaries of the cogent arguments addressed to the Court. An advocate, therefore, is expected that he should cogently, and correctly enunciate, and expound the law, and refer to the volume, number, and page on which he wants to rely for his proposition of law.

Independence and Dignity

An advocate is expected to maintain his ‘manly independence’, and ‘courteous dignity’. Each should recall the great words of Lord Erskine (when at the Bar): ‘I will’, said he, ‘for at all hazards assist the dignity, independence, and integrity of the Bar, without which impartial justice can have no existence’.

Lord Herschell, in his address to the Glasgow Juridical Society in 1889, observed as follows: “To penetrate the inmost recesses of the human mind, and find there the sources of men’s actions, to reveal their true motives, to tear the mask from the seemingly fair exterior, and exhibit the real nature which lies behind—these are tne duties of the Advocate. He must discharge them fearlessly, and faithfully”.

The above words of Lord Erskine, and Lord Herschell are very great, but greater still are the words uttered by Lord Cock burn C. J. when he said: “The arms which a Counsel wields are to be the arms of the warrior, and not of the assassin. It is his duty to strive to accomplish the interest of his client —’per fas’, but not ‘per nefas’. It is his duty to the utmost of his power to seek to reconcile the interests he is bound to maintain, and the duty it is incumbent upon him to discharge, with the eternal and immutable interests of truth and Justice”.

Conclusion

Advocates would do well to remember the above noble words expressed by Lord Cockburn, which are as true today as when they were uttered. I expect that the spirit amongst them should be one of generous emulation, and not the spirit of embittered, and petty rivalry. They should try to maintain their high tradition of fearless independence, probity, and integrity, and live up to their noble ideals, and dedicate their lives for the vindication of truth, and justice, and also for the good of the common people, for a strong and upright Bar is essential to the welfare of a free people. The brotherhood of the Bar is, I think, a notable and felicitous fact in our national life.

Always remember Shakespeare’s advice:

“Do as adversaries do in Law, strive mightly. but eat and drink like friends.”

Author Name: Hon’ble Mr. Justice Raj Kishore Prasad