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PROFESSIONAL CONDUCT
-
AND ADVOCACY
PROFESSIONAL CONDUCT
AND ADVOCACY
being a series of lectures
delivered to apprentices-at-law
'
BY
K. V. KRISHNASWAMI AIYAR
Advocate, High Court, Madras
WITH FOREWORDS BY
SIR MAURICE GWYER
Formerly Chief Justice of India
AND
SIR LIONEL LEACH
Chief Justice, High Court, Madras
HUMPHREY MILFORD
OXFORD UNIVERSITY PRESS
OXFORD UNIVERSITY PRESS
AMEN HOUSR, LONDON, B.C. 4
Edinburgh Glasgow Bombay
Calcutta Madras Melbourne
New York Toronto Capetown
HUMPHREY MILFORD
PUBLISHER TO THE
UNIVERSITY
PRINTED IN INDIA
AT THE BASEL MISSION PRESS, MANGALORE, ON PAPER MANUFACTURED BY
THE MYSORE PAPER MILLS, AND PUBLISHED BY HUMPHREY MILFORD, BOMBAY
FOREWORD TO THE SECOND EDITION
AM very glad that a second edition of Rao Bahadur K. V.
I Krishnaswami Aiyar's most admirable bookis to appear,
and it
gives me
great pleasure to contribute this Foreword U
it. I remember that when a copy of the original edif$8ft 'firS
came into my hands and I began to read it, I found that I could
not lay it down until I had read it right through and I do not
;
doubt that many others could say the same. The new edition
is even better than the old. It is a book which should be in the
hands of every law student and young practitioner and many ;
who are about to enter, or who have just entered, the profession
are reminded of the duties and responsibilities of a lawyer, is
that they reassert standards sometimes in danger of being
forgotten. I have heard Indian friends of my own, themselves
distinguished lawyers, deplore in no uncertain terms this
lowering of standards and it seems clear that one cause of it
;
but he belongs to one profession and not to two, and the rules
of conduct which govern a barrister in England, who never
comes into contact with his lay client at all, unless his
solicitor brings hjm to a conference, are obviously inapplicable
to Indian conditions. It is therefore always necessary to apply
English authorities with caution and the author of this book
;
young advocate who reads this book will learn why that is so.
He will also understand better than he did before that the law
isa great and noble profession, whatever its critics may say,
and law itself a great and noble science, the king of kings, as
the sacred books of this country call it; and he will, I hope,
determine that never by any act or word of his will he show
himself unworthy of the great tradition which he has inherited
and which the author of this book puts so plainly and
convincingly before him.
LlONEL LEACH
,940
ix
MADRAS BAR COUNCIL'S
FOREWORD TO THE FIRST EDITION
Bar Council of Madras has great pleasure in prcsent-
THE
ng on Professional
to the profession the course of lectures
Conduct and Advocacy delivered by Mr K. V. Krishnaswami
Aiyar, a leading member of the Madras Bar, to the apprentices
of the year, under the auspices of the Council. The Council
has every reason to congratulate itself on the selection of the
lecturer. The lectures are couched in a trenchant style and
breathe an earnestness of purpose and loftiness of aiip. In the
course of his lectures, Mr Krishnaswami Aiyar has put in a
forcible plea for the maintenance of the highest standards in
the practice of the advocate's art in consonance with the best
traditions of the profession both in England and in India and
has set before the young practitioners the illustrious examples
in the profession from the earliest times in legal history.
A. KRISHNASWAMI
March I94
Chairman, Bar Council
AUTHOR'S PREFACE
TO THE SECOND EDITION
main scheme of the lectures as they were delivered in
THE
940 has been retained, but there is hardly a chapter in
this second edition that has not been thoroughly revised and
substantially enlarged.
New appendixes have been added, one called 'The Judge',
another giving an account of the recent case of Myers v. Elman
which is discussed in the body of the book, and the third con-
sisting of a select bibliography.
I am
greatly indebted to the Oxford University Press for
the extreme care and thoroughness with which they have seen the
book through the press. They have acted not merely as
publishers but as advisers at every turn in bringing the text of
this edition to its final form. Such detailed co-operation calls
for rny grateful thanks.
Madras rr
T^- \r
IV.V.iV.
January 1945
AUTHOR'S PREFACE TO THE FIRST EDITION
Madras
March 1940 K
IT -
\T IT
V. K.
TABLE OF CONTENTS
TABLE OF CASES CITED [pp. xix-xx]
CHAPTER I
CHAPTER II
CHAPTER III
Appellate and original side rules Know generally what unrepealed statutes exist
CHAPTER IV
TRAINING GROUNDS [pp. 24-5]
Attend chambers of a senior Method of working there Put forth best efforts-
Court-house as training ground Utilize special opportunities there
-
CHAPTER V
MEETING CLIENTS [pp. 26-9]
Receive them well and listen to them fully- Make inquiries Do not trust all
they say Your conduct must inspire confidence About offering opinions
Settling fees Certain guiding factors therefor
xiv
TABLE OF CONTENTS xv
CHAPTER VI
THE PREPARATION OF A CASE [pp. 30-42]
CHAPTER VII
CHAPTER VIII
opening cases How to open a case Overprove your case Guard against
Judge being too readily favourable Criminal trials SPECIAL TO THE APPELLATE
COURT: Difference in scope between High Court and mofussil court Scope of
appellant's arguments Advantages of presenting both sides Why two counsel
Method of presentation Opening arguments Building up a case Trap for
respondent How respondent should act Refer to pleadings Documents and
oral evidence Read judgement and comment Sometimes Judge requires judge-
ment to be read first Adjustment necessary Respondent's arguments differe
Broad presentation Constructing one's own structure Arguing for respondt
more difficult Arguing points of law Formulation of law to be complete Ca
a wrong decision wrong Study facts of decision Explain decision on principles
CHAPTER X
PROFESSIONAL CONDUCT IN GENERAL [pp. 93-122]
High standard of the Bar Duty to cultivate professional habits Certain duties
special to the legal profession Avoid touting Avoid undue intimacy with clients
and their cleiks Do not advertise Duty must prevail against self-interest
Confidential communications Counsel as witness in a cause No duty to
accept just or good cases only Duty in criminal cases, when accused confesses
guilt Fee not to be your sole consideration Si/e of fee should not affect your
efforts Notify client of inability to appear for him No relation between fee
and sei vice Return unearned tees Delegation of briefs Returning fees
in special cases A converse case and the revision of the fee Receiving presents
No contingent fee Share of gains of litigation Never postpone settlement
of fee Duties in special cases Cases of compromise Advancing moneys
No piomissory notes for fee Statutes and other rules on ethics
CHAPTER XI
CHAPTER XII
CHAPTER XIII
CHAPTER XIV
DUTY TO YOUR CLIENT [pp. 147-53]
Mostly common to yourself also Remember the only case to him
it is
Duty of
disclosure where
Duty not to appear interest may conflict Selection of points-
Duty in giving opinions Duty in advising compromise and settling compromises-
Powers oi counsel to make or accept compromise Duty in making admissions-
Responsibility for clerk's acts Civil liability to client Purchasing in court sales
CHAPTER XV
DUTY TO YOURSELF [pp. 154-65]
Duty to others duty to self also
is Self-respecting independence required
Addressing Judge in ordinary conversation Dignified relations with clients
Fixing appointments with clients Cultivate passion for profession Captious
requisitions not to be complied with Counsel not to agree to play a part subordi-
nate to the client Production of false documents to be prevented Confess
mistakes or omissions Duty in unrepresented cases No assertion of personal
belief Duty not to deal with client represented by counsel No distinction
between small and large cases Or between own and senior's bfief Avoid
controversy about fees with client Reject excess briefs Avoid slovenliness in
court Avoid laughing in court Adopt businesslike habits Your duty in
transferring briefs Liability as regards client's money Be ready to appear
when senior counsel absent Do not borrow cultivate. self-reliance Cultivate
;
CHAPTER XVI
DUTY TO THE PUBLIC AND THE STATE [pp. 166-72]
Lawyers and government Discourage dishonest litigation Duty not to corrupt
witness Duty to prevent delay in litigation Right to reject cases Duty in
xviii TABLE OF CONTENTS
poor men's cases Duty of Bar Councils Duty when cross-examining witnesses
Discharge of duty through Judges Duty to see that proper law exists
Duty not to help circumvention of law Duty in regard to newspaper publication
Responsibilities as an officer of the court
CHAPTER XVII
HAS THE LAWYER ANY PRIVILEGES? [pp. 173-80]
The answer both affirmative and negative Privilege of discharging duties His
right to his fee Ccitain privileges stated Incident in the Calcutta High
Court Illustrations from trial courts Privileges not personal but client's
Expressions used in judicial inquiry Exemption from arrest under civil process
Certain other privileges Eligibility for public office Privilege of making
statements irom Bar Privilege of barrister to authenticate cases Exemption
from serving on jury Lien for unpaid fees and advanced out-fees Master of
own time and movements
CHAPTER XVIII
APPENDIXES
I. THE JUDGE [pp. 196-203]
Identity of vocation between Bench and Bar Assumption of distinction between
them, untrue Conduct of Bench towards Bar, a relevant topic Counsel's
duties arise largely out of his relation to court Counsel's right to have expecta-
tions of Judge Duty ot judge to regard privileges of Bar Exclusiveness of
Judges, undesirable Intei tuptions from the Bench An instance of the Socratic
method Questionable propriety of this method Court made a debating forum
Junior counsel handicapped Mid-course between undue interruption and
absolute silence Counsel prefer interruption to immobility A taciturn Judge
Methods of cutting arguments short Should Judge previously study papers?
Opinion in favour of a not too careful or minute study Duties of patience,
courtesy and kindliness
575 i53
Shivaram Hari v. Arjun, LL.R. 5 Bombay 258 110
Sourendranath Mitra v. Tarubala Dasi, 57 Indian Appeals
*33> S. C. LL.R. 57 Calcutta 1311 150
Strauss v. Bench Cases 379
Francis, L.JR. i Queen's 158
Subba Pillai v. Ramaswami Aiyar, LL.R. 27 Madras 512 115, 180
Sullivan v. Norton, LL.R. 10 Madras 28 (F.B.) 177
Tagorev. Tagore, 18 Weekly Reporter 359 (P.C. ) 152
Thangavelu Mudaliar v. Chengalvaroya Gurukkal, 69
Madras Law Journal 250 129
The Earl Beauchamp v. The Overseers of Madresfield, L.R.
8 Common Pleas Cases 245 127
The King-Emperor v. Barendra Kumar Ghose, 28 Calcutta
Weekly J^otes 170 102
Tiruvengada Mudali v. Tirupurasundari Ammal, I^.L.R. 49
Madras 728 177
T. L. Wilson & Co. v. Hari Ganesh Joshi, LL.R. (1939)
Bombay 307 no
Tulsidas Amanmal Karani v. Billimoria, A.I.R. (1932)
Bombay 490 177
Venkata Narasimha Naidu T>. Bhashvakarlu Naidu, /.L.JR.
\ on on
I talk to piofessional conduct and advocacy,
BEFORE
think I must say a few \vords about the legal profession,
1
lawyers are called in to settle them, and in truth, tbey are the
greatest peacemakers. The person most ready to promote a
compromise be the lawyer himself. Law is concerned only
will
with preventing disputes. Most of our enactments, for instance,
are intended to stop the creation of new strifes. Unless it can be
said that law itself, codified or otherwise, tends to promote
strifes, because disputes arise as to its construction or applica-
*
Hitherto the conception of liberty and the conception of dis-
cipline have stood opposed to one another. What civilization
has now to do, and will perish if it fails to do, is to reconcile
them, to bring the conception of discipline under the conception
of liberty, to make discipline a vital element of liberty, thereby
6 THE LEGAL PROFESSION
winning for ourselves a and richer than
liberty broader, deeper
we now know knew before us the liberty of
or our fathers
the orchestra/ Temporary disagreements and a call to the
politician for cautious procedure, engender unpleasant feelings,
which find expression in a doubt as to whether the legal pro-
fession need exist at all and whether society would not be better
without lawyers. With thegrowing power of law in the evolu-
tion of society, the classes that are too often hostile to its
restraints dislike the lawyer because he stands pre-eminently
for the enforcement of law and the consequent limitation of
licence. I was amused to read that in the Union Debating
Society of Wellington, New Zealand, there was a serious dis-
cussion on the subject 'That the legal practitioner is a parasite,
infesting the community, and ought to be extirpated'.
Again, the criticism is levelled against the legal profession
that it does not serve to add to the wealth or economic pros-
ing in the heart, his office it 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 the advocate can perform the duties,
which, by its very nature, lie stands pledged to society to fulfil.
How can he hope to thread the mazes of intricate argument,
if his mind
not disciplined by the habit of accurate reason-
is
question presented, investigate it, find out the whys and where-
fores, the ins and outs, the pleasing features as well as those
that are disagreeable and then stand by your guns.' In no
4
everything.' It is the one virtue 'in which all other virtues are
comprehended*. You may have learning, you may have in-
ing or intellect, for genius itself is but the infinite capacity for
taking pains. I can say with confidence that no man has
succeeded in the legal profession merely by his intellect and
without industry. Let industry, then, be the motto of your
professional life. Even for the learned profession of law, you
need not be great in intellect or in learning, but if you are a
giant in industry you are likely to be a giant in the profession.
Without industry 'the armoury of the advocate will lack weapons
on the day of battle'. A learned lawyer said 'Luck generally:
many times. Never believe that because you have read a thing
16
THE CULTIVATION OF MEMORY 17
many cases, but if he has not the skill to use them they are ot
no benefit to him To be available, the law of the case
. . .
you are not otherwise occupied, have jtour books at hand and
turn to the study of law, in preference to light literature. If
fortunately you get a client who pays you, take it that the pay-
ment is to make you study law. Take hold of the opportunity
topic that you may later come across. An orderly and classi-
fied study will also permanently fix it in your memory. A pro-
cess like this, repeated several times, will enable yoti to store
up a great deal ; and, as law abounds in analogies and is often-
times interrelated, your possession will be a respectable one.
That is the way in which I would ask vou to add to your learn*
ing and knowledge. I have always held and advocated the view
that your period of apprenticeship would be more fruitful of
good results by way of training if you were permitted to accept
engagements and fees from clients, but without audienoe in
courts. I find that similar proposals have been made in some
of the American States.
20 HINTS FOR LAW STUDIES
Studying thus all the law connected with each case as it comes,
the attraction of legal subtleties will furnish you the necessary
incentive to pursue research even when you may not have a
fee. As I have said, in your earlier days, ban light literature
and spend your leisure in the study of law which is to give
you a living. There are standard books on many topics, like
Lindley on Partnership, T^eake on Contracts, Story on Equity
Jurisprudence Tudor on Charities, Lewin on Trusts, Jarman
,
books you should first know what books exist. It is good for a
young lawyer to be familiar with the names of the standard
law books on the different subjects and with the names of their
authors. You must know what authoritative and useful books
exist on different subjects amongst Indian, English and
American publications. You must also know, generally, their
contents. You ought to know, for instance, that Benjamin
on Sales does not deal with Real Property, for which you must
refer to Williams or Dart on Vendors and Purchasers, that
Lewin deals with Private Trusts while Tudor deals with Public
Trusts. You will also make an effort to know what books on
Hindu Law, including the smritis and special treatises, exist.
It is also necessary for you to know what law reports of
Indian and English courts exist. There was once a craze for
the citation of American decisions, but that is now gone and
you need not trouble yourself about them. But you must be
familiar with Indian and English reports. You must also know
the various private reports that exist for the long period prior
to 1865 when the Incorporated Council of Law Reporting issued
their series. You ought to be able to distinguish Queen's Bench
Reports from Law Reports, Queen's Bench Cases and Law Re-
ports, Queen's Bench Division. You ought to know the system
that is adopted in the law reports. You ought also to get familiar
with the private reports that I have mentioned. You must know
that B. & S. means Best and Smith, that C. & P.* is Carrington
and Payne, and so on. You had better familiarize yourself witji
the chart issued by the publishers of The English Reports. I
would expect you to know even from the colour of the volume
of The English Reports whether it is Privy Council Reports,
or Rolls Court, or Vice-Chancellor's Court, or King's Bench
Court. There are also certain old Irish Reports which come up
in use like the reports of Schoales and Lefroy. When you come
across any such in your research, acquaint yourself with them
FAMILIARITY WITH STATUTE LAW 23
then.The tables in the Revised Reports will help you to know
some of these.
I must not omit to draw your particular attention to an im-
TRAINING GROUNDS
Attend chambers of a senior Method ot working there Put forth best
efforts Court-house as training ground Utilize special opportunities there
MEETING CLIENTS
Receive them well and listen to them fully Make inquiries Do not trust
all they say Your conduct must inspire confidence About offering opinions
Settling fees Certain guiding factors therefor
not miss even one relevant fact though you may have to get it
by a process of sifting many irrelevant ones. It is less incon-
venient to listen to superfluous facts than to stand the chance
of missing what may be essential. Do not interrupt your client
in his narration, but reserve your questions to the end, when
he makes a pause. The following advice given by Lord Bacon
is apt and may be usefully cited here 'Give good hearing to
:
not only because some things might have escaped his memory
at the first recital, especially if he be, as is often the case, an
illiterate person but also that we may see whether he tells
;
suggest the fee in the first instance. You would know then how
means ask for a heavy fee; but accept whatever the client is
willing to pay. Let not a client who enters your office go to
another on the question of the fee.' I must say that I am not
prepared to give the same advice to you. Each lawyer must
maintain a standard of his own and stick to it firmly and at
any cost. But when you reject an engagement do it with deter-
mination and courage never brood over the loss or make your-
;
pared to warfare, which calls for definite plans and the mar-
shalling of forces before action begins. Wise anticipation and
strenuous preparation enable one to foresee and provide for
things to come. There is in a trial scope for both strategy and
tactics; strategy in the preparation before the commencement
of the trial and tactics in the conduct of the litigation in court.
Just as strategy plays an important, and often decisive, part
in war, where the position is otherwise equal, so likewise careful
on the other hand you must learn to revel in them. That the task
is tedious should never deter you from perseverance in un-
that lead to it or flow from it. Such study alone will make you
understand the subject-matter with exactitude and you will
then be able to reason it out in court with confidence.
As regards the study of relevant decisions, you may start
from a decision cited in a textbook or otherwise known to you
and go backwards and forwards from it carefully following
it through the textbooks and reports. Make it
in its course
your duty to study all the cases cited in the judgement and in
the arguments, to understand the history of the development
of the subject and all its variations and limitations. You may
also take up the digests and look up authorities. You may do
either or both, and in any case you must adopt a method which
willgive you the satisfaction of knowing you have studied the
matter exhaustively. It is always best to arrange the decisions
in chronological order. Thete is always an art in doing any
work, the pursuit of which is never in vain.
In studying case-law it is the habit of the indolent to be
content with reading the head-notes. That you should never
be. The head-note may be inaccurate. It may be imperfect.
STUDYING DECISIONS 33
that you study. Your notes may save you a good deal of labour
when a similar point arises on another occasion.
I must now refer to a few matters peculiar to an original
unless they fit into a hypothesis.' This process alone will help
pou to discover the missing links upon which you will have to
direct your further inquiry and which you should seek to supply
the proof you do not omit any fact that must be elicited in
order to establish the cause of action* or any essential fact
leading to it, according >to strict legal requirements. Suppose
examination, the whole suit may fail. You will have no oppor-
tunity to rectify the error afterwards.
Do not put into the box straightaway a witness who has never
before been within the precincts of a court. Sometimes persons
unaccustomed to courts of justice get alarmed and are unable
to give evidence in a proper manner. You will be well advised,
therefore, making such persons attend court for a day or
in
two before they are called as witnesses. Let them observe the
demeanour of other witnesses and get used to the atmosphere.
Also, never think of tendering as your witness a person
whom the other side is certain to call for thereby you will be
;
your client will be able to tell you for what purpose each one
is being called. Inquire into his antecedents, his relations with
the other side, the possible motives that may actuate him to
give evidence and any other matter which may tend to dis-
credit his testimony or help to draw out contradictory state-
ments from him.
You should not stop there, however. Think for yourself on
what matters you can elicit information from him for your
side. You may have a document but no witness to prove the
trial court must have referred to them all. You will have col-
lected material and gained confidence to make the attack. Now
make the chronological study that I have adverted to and you
are thorough in your preparation.
It is a habit with some lawyers to read the judgement through
life of the
original expression. Where it is a question of
construing a document in an Indian language, I am sure you
KEEP NOTES OF YOUR ARGUMENTS 41
will study thatdocument in the original. Apart from that,
wherever you do not feel happy over any translated por-
tion, you must look into the original document. A study of
the original, I have found, always gives one a new outlook.
You feel as if
you breathe fresh morning
air. I may particularly
warn you that entries in Chetti accounts are as difficult to
translate as they are to unravel. A
single entry of credit or
debit will narrate the history of a transaction between a third
and a fourth party and may indicate a mere adjustment in
accounts. You must always get the originals and understand
them.
It is also advisable that in the first few
years, at any rate,
of your professional life you keep complete notes of the argu-
ments that you intend to present. It does not matter how long
such notes are; the longer they are, the more sure you are of
detail. Let your notes be in some order, preferably in chrono-
steady throughout.
I feel here that I should draw your attention once again to
The narrative continues that he would not even give rest to his
juniors, but would wake them up at midnight with slips and
instructions to look up this point or that.
42 THE PREPARATION OF A CASE
In fact would be nothing wrong if younger members be-
it
DRAFTING PLEADINGS
Justification for including topic It has practical value Previous prepara-
tion Pleading compared to painting a picture or erecting a structure Cause-
title, and parties The plaintiff Joint or alternative plaintiff The defend-
ant Alternative defendant Include all claims Proper descriptions of parties
Must have settled a plan and looked up the law as prerequisites for beginning
allegations, To state a logical and connected story Some Don'ts No need-
less history No argument No rhetoric or passion Selection of salient and
leading features Analogy of hill-tops To be reasonable and logical Neces-
sary allegations to explain opponent's case Alternative cases Pleading fraudu-
lently Estoppel Custom Oral will, etc. Code and Rules to be con-
sulted Statement of cause of action Jurisdiction Conditions precedent
Valuation, court-fee Reliefs Written statement Cross- or counter-claim
Another don't Making admissions No false pleading The ten command-
ments of Eustace About drafting affidavits About drafting grounds of appeal
and the grounds thereof, if you have one. For this purpose you
need not make one set of allegations leading to one relief first
and then begin making another set of allegations for the alterna-
tive relief. It should always be possible to intertwine them;
for your alternative reliefs will be founded only on alternative
facts or aspects of them or the law.
Let me add
instructions on a few other matters in respect of
which pleadings are often defective.
Do not, allege 'fraud' vaguelyand half-heartedly. The nature
of the case should be distinctlyand accurately stated and the
charge pleaded with the utmost particularity. It must be shown
in what the fraud consisted and how it has been effected.
Do not state merely 'estopped'. You know what 'estoppel'
means. Satisfy the requirements of the law by making the
necessary allegations of fact.
If you plead a custom, quote it in all its details and with all its
limitations and consequences. Any omission in the pleading
will seriously tell against the proof of it.
If you allege an oral will, oral
arrangement, oral authority to
FURTHER DETAILS 4d
Procedure Code gives you help in this matter and you need only
follow remembering that a general denial, in the form of
it,
will agree that this impression must go, and it is up to the junior
Bar to remove it. It is incumbent on the profession to encourage
and maintain the public sentiment on this all-important matter
the sacredness and inviolability of the oath. Remember that
you cannot excuse yourself even in cases where the client brings
you a sworn affidavit to be filed in court and that your
responsibility for the statement contained init stands. Drafting
false, Lord Romilly said that it was impossible for the court to
proceed with safety were it not that the solicitors connected
with the court most carefully investigated and, as far as
possible, corrected such statements of their clients as to dates.
Again, in a very similar case, in In re Davies, 14 Times Law
Reports 332, the Court of Appeal suspended a solicitor though
he had warned the client against the untruth of a statement
which the latter insisted upon swearing too. The court held
that the solicitor should have withdrawn from the case.
A
word may also be said here about drafting grounds of
appeal, though they have not the same importance or value
that pleadings have.
It need not be said that the judgement appealed against
must be studied with care. It may not be necessary to
first
got to assist him in the difficult work. They had got to attract
him to the performance of his duty, but woe be to them if they
suggested to him the terms in which it was to be put. They
must avoid any suspicion of leading the witness while all the
time they were doing it.'
You should not at the same time frame your questions in a
form suggestive of cross-examination; for you cannot cross-
examine your own witness until you have the permission of the
court to do so upon the court being satisfied that he has turned
a hostile witness.
There is also a third difficulty. You must avoid the danger
of your witness not understanding your question in its proper
perspective or of his misunderstanding its scope and purpose,
in the gSrb that you give to it. He may consequently get con-
fused or give answers which may be irrelevant or adverse. It is
obvious that your questions should be framed in clear and
simple language and in short sentences. The witness and the
court should easily understand and follow you. As the Elliotts
say : 'The counsel who conducts the examination-in-chief must
be cool, self-possessed, resolute, and deliberate. If he is alarmed,
agitated, or nervous, he will embarrass and disquiet the witness,
for, by a well-known psychological law, mind communicates to
mind its feelings and emotions.'
THE WRONG WAY TO BEGIN 57
In these circumstances, I would advise you, in the first few
years of your career, not to be content with mere proofs of wit-
nesses but leisurely to think out and frame at home the questions
you will put to the witness in court. If the witness is a com-
petent person you may simply ask him to tell the court what
he knows of the matter; but such witnesses are very few. As
a rule, you will have to elicit fact after fact by putting appropri-
ate questions in a form which is not leading or cross-examining
or confusing. Do not consider it derogatory to have in your
hand questions already written out because you see some mem-
bers of the Bar, senior to you, do the questioning off-hand with-
out notes. You are certain to do so yourself after gaining ex-
perience on a few occasions. In some books on the examination
of witnesses there are statements discountenancing the habit of
looking down at the paper containing the proof while examining
a witness. But that has reference to cases where counsel at-
tempts, possibly for the first time in court, to understand a
proof prepared by an attorney or a solicitor, and can have no
application to cases where counsel has himself prepared the
proofs and looks at them in court as an aid to his memory. It
is more desirable that you should avoid these three dangers:
the objection of your opponent that what you ask is a leading
question, the laughter you may evoke by cross-examining, and
the confusion you may create in the mind of your witness who
may be struck dumb by ill-framed questions. When your wit-
ness omits an important detail in his narration and you are
troubled about how to get it out of him without putting a lead-
ing question, follow the rule that Harris gives: 'A question
without being leading should be a reminder of events rather
than a test of the witness's recollection.' Cox admonishes that
questions such as 'Did anything more pass between you?'
*Havc you stated all that occurred?' are only put in vain.
When a witness is to speak to an incident, conversation, or
other transaction, an erroneous way of examining is to begin
by asking a first question like this: 'Do you remember the 5th
of October 1943 ?' I mention this because I find it is common,
and counsel adopt it as an easy method of opening a topic. But
that is not the way to begin an examination and its incongruity
will be apparent if you imagine such a question being put in
a translated form to an illiterate or quasi-literate witness in
8
58 THE EXAMINATION OF WITNESSES
the mofussil. How
can anybody remember a date? It is un-
natural. Men
forget dates but remember occurrences. Witness
probably does not even know the date on which he is being
examined. The proper form is to question the witness directly
with reference to the incident or transaction. You may ask :
'Do you remember that some months ago there was an incident
1
in which your servant was concerned?' Answer: 'Yes. Ques-
tion 'Tell the court, please, all that you know about it.' And
:
as the witness narrates the events you may direct him from
straying into irrelevant paths by putting appropriate questions
at the corners.
You may sometimes have to examine a witness on your side
who knows facts favourable to you as well as other facts which
may militate against your case. You may have to call him,
nevertheless, for want of other available evidence. Questioning
him form that does not permit of his straying and speaking
in a
to matters unfavourable to your case is an art that requires great
warning 'In any event never suffer the witness on the stand,
:
the fearful and repress the bold', is another rule. His last rule
is: 'Never begin before you are ready and always finish when
the force of what the witness has said against you; and the
third is to show that from his present demeanour or from his
past life he is unworthy of belief, and thus weaken or destroy
the effect of his testimony.' Cross-examination is intended to
60 THE EXAMINATION OF WITNESSES
test the truth of the story of the case in every way. You may
elicit facts which reflect upon the credit of the witness, his
an answer in that form, for the Judge will attach no value to it.
You should also remember that you cannot use the re-examina-
tion to supplement the examination-in-chief and it must be
confined to clearing up matters spoken to in cross-examination,
elucidating doubtful points or tying up broken threads. You
ought also to be careful that by putting an indiscreet or un-
necessary question you do not elicit an answer strengthening
a former unfavourable answer given in cross-examination. I
find that, in practice generally, not much attention is paid to
re-examination and we simply have a repetition of the two
other examinations. This indicates that counsel consider dis-
TREAT WITNESSES CONSIDERATELY 67
cretion the better part of valour. Indeed, more than learning how
to do re-examination, a young lawyer ought to learn how not
to do Remember that as a general rule it is not good policy
it.
actors fof wages only our stages are different' and the entire
; ;
CONDUCT IN COURT
GENERAL Haste to be avoided
: Maintain calmness Do not interrupt Judge
Or opponent Inopportune interruption Do not argue across the Bar Or
contradict Judge Answer directly When not to argue Do not lose temper
if Judge disagrees Present best point first Look Judge in the face Do not
imagine Judge has prior knowledge Do not narrate contents of documents and
depositions from memory Quote chapter and verse Cite slowly No loudness
or assertion Shun inaccurate expressions Employ correct language Employ
language of judgements Leave Judge to formulate the point Do not press
doubtful points Assessing facts at proper value Mode of citing decisions
Distinguishing decisions Change of battle-ground Do not conceal adverse
points SPECIAL TO THE TRiAi COURT: Deplorable absence of correct proceduie in
opening cases How to open a case Overprove your case Guard against
Judge being too readily favourable Criminal trials SPECIAL TO THE APPELLATE
COURT Difference in scope between High Court and mofussil court
:
Scope oi
appellant's arguments Advantages of presenting both sides Why two counsel
Method of presentation Opening arguments Building up a case Trap for
respondent How respondent should act Refer to pleadings Documents and
oral evidence Read judgement and comment Sometimes Judge requires judge-
ment to be read fii st Adjustment neces&ary Respondent's arguments different
Broad presentation Constructing one's own structure Arguing for respondent
more difficult Arguing points of law Formulation of law to be complete Call
a wrong decision wrong Study facts of decision Explain decision on principles
but by losing your temper you will also be giving your oppon-
ent an incalculable advantage. You will have your opportunity
outside the court to tell your learned brother what you think of
him. Your demeanour in court must be such that it will evoke
a general desire, as far as law and justice permit, that you
should succeed.
Then it is an axiom that you should not interrupt the Judge
when he speaks. You may probably guess, possibly rightly,
what he is going to say before he concludes and you may be
ready with your answer. But it is also possible that you may be
wrong. Anyway it is proof of that calmness that you should
possess, to wait for the Judge to complete his statement. A
reply thereto, after the Judge has spoken, will be both 'digni-
fied and weighty the contrary might upset the equilibrium of
:
the court. Take time, consider the question in all its aspects,
and then give a well-thought-out reply. A hurried reply may
lead you into a trap. We
have it of the late Sir V. Bhashyam
lyengar that he always took time to answer questions from the
Bench. He was most guarded and careful in making a state-
ment and would never do so without considering its precise
effect and whether it would tell in his favour or against him.
On this subject Justice Williams of Pennsylvania says Some :
c
the point that you seek to make is really a good one, the
repeated submission of it with humility and modesty, without
taking up a challenging attitude is likely to bring round
the Judge in your favour. On the other hand, an exhibition
of surprise or of temper may strengthen the Judge in his
conclusions to find against you. The advice of a successful
lawyer is : 'Confront with unflinching perseverance
difficulties
and good humour, and they fog before
will disappear like
sunshine.' In repeating your arguments, however, do not use
the same expressions over and over again. Change the form
and the language as much as you can. You will not only avoid
giving annoyance to the Judge but also save yourself from the
reputation of being a bore. Remember that the Judge may not
exhibit the same keenness for your points as you do.
It is also important that in court you should not speak dis-
normal and you will be wise to act upon your own judgement
of what are good and weak points.
MAKE STRONG POINTS FIRST 75
It also sometimes happens that a strong point, deliberately
reserved to the last to capture the Judge with when he may be
feeling oppressed with the difficulties of coming to a con-
clusion, defeats its own purpose because the Judge makes the
natural observation prima facie that if it were a good point
counsel would have put it in the forefront of his case.
It is a matter for counsel to decide in each case whether any
look the Judge in the face and never look down when you
address the court. There is a great deal of guidance to be
found in the physiognomy of the Judge. You ought to know
how the Judgfe takes your points directing your arguments
accordingly and of this his face is the best index. Do not
at any time look around for applause or approbation from
those gathered in court.
Not infrequently counsel, in the fullness of their preparation,
assume that the Judge knows as much as they of the details
of their case. This of course is a mistake which you must
guard against. The Judge may not even have looked into the
papers before coming to court : some people even think it is
76 CONDUCT IN COURT
wrong on his part to do so because he ought to get his first
impression from counsel at the Bar. Indeed, Bacon has said
4t is no grace to a Judge first to find that which he might have
heard in due time from the Bar'.- You cannot therefore start
in medias res but must begin at the beginning unless the
Judge directs you to proceed from any particular stage of the
case. You ought to address him as you would a person to
whom you were telling a story for the first time.
Another tendency also sometimes noticeable in counsel is to
narrate to the court, by word of mouth merely, the contents of
documents and statements of witnesses, without making any
attempt to refer the Judge to the record and draw his attention
to it. This is undoubtedly proof of counsel's thoroughness
of preparation which in itself is commendable; but, from the
point of view of advocacy, the practice is barren of results and
deserves to be avoided. Such conduct on counsel's part is
mostly accounted for by nervousness, lack of restraint, want
of calmness and self-possession and an undue haste to make
points, which cause him to overshoot the mark. Apart from
any other consideration, counsel ought to acquire the habit
of feeling that there is no need for hurry even when he starts
a case. He should learn to be cool and calm so as to be
able to arrange his thoughts in proper sequence without con-
fusion. To no one else is self-possession of greater value and
productive of better results than to the advocate at the Bar.
There are other weighty reasons why counsel should get
into the habit of reading from the records, instead of repeat-
ing their contents from memory, and should learn the art
of persuading the Judge himself to read from the records.
Save for very rare exceptions, the eye is, in the case of most
people, a*more powerful medium than the ear. Secondly, the
Judge enabled to reach more definite conclusions than when
is
he may reasonably entertain a doubt or suspicion as to whether
counsel's reproduction is accurate or whether it may not, as
the outcome of enthusiastic advocacy, be a pardonable exaggera-
tion of the reality. Thirdly, reading from the record for the
benefit of the Judge is also to counsel's own advantage.
When your mind is saved the strain of recollecting and
you must take him with you. Do not read merely for read-
ing's sake but in a manner that enables you also to think
upon it as you proceed. Then you may be sure that the Judge
let us say should fail, its disproof may have little or no effect
on the main issue. Such a result might take away only one of
the many modes of proving one relevant fact which may be
proved by other facts and if we note that that relevant fact
;
nent, in the setting that he makes for it, it will tell against you
twice as much. Your failure to refer to it may well be con-
strued as an indication of the weakness of your case, and
your opponent's reference to it as a point of strength for him.
Do not therefore hesitate to cite a case which is against
can have that value which the judgements of trial courts are
given, as being those of Judges who have heard and seen the
witnesses. The underlying presumption, that having intelli-
gently followed witnesses in the box they were in the best
position to judge of their veracity and reliability, is not in-
frequently unrelated to the facts. Wecannot grant that the
intellectual eyes ofsuch Judges were open at all.
Where the proper procedure is adopted the plan of the
case that you have prepared, as I advised you earlier, will stand
you in good stead. You will begin with an account of the
parties, the circumstances that led to the present dispute, the
precise nature of the dispute, the points at issue and the proofs
that you intend to produce in order to establish them. This
is an occasion for you to exhibit your skill in advocacy by the
(e.g. the conduct of parties inside the court) that help him to
come to certain conclusions with ease. On such occasions the
Judge may be inclined to give you judgement without much
effort,and may even, on occasions, express himself so strong-
ly as to suggest that you need not trouble yourself to offer
further proof or call further evidence. Do not allow yourself,
on such occasions, to be carried away by the prospect of easy
victory. Your duty to your client requires you to secure for
him abiding, not temporary, success. An appellate tribunal,
not possessing all the advantages of the trial court, may take
a different view and reverse the judgement on the ground that
the proof on the record is inadequate. I know many instances
in which has happened. Therefore do not rest on your
this
oars when the Judge utters favourable remarks; offer him
your thanks for them and proceed to complete the record by
producing all the evidence you may have, even though the
Judge may appear annoyed at your procedure. You have only
to be respectful and he will forgive you.
Now a few words about criminal trials.
The issue in a criminal trial is always whether the accused
is guilty of the offence he is charged with, and never whether
he is innocent. There is consequently a well-defined distinction
between the duties which a prosecutor and a counsel for the
accused respectively discharge.
The duty to prove the affirmative rests with the prosecution
and the function of the prosecutor is not to secure a conviction
hearing is reached, you find that the Judges have been given
a wholly different but plausible case. What the respondent's
counsel should do in such a case is to restrain himself and let
counsel for the appellant go his full length. He must carefully
take notes of all the deviations that appellant's counsel makes
and when his turn comes present the case from his own angle,
carry out. Or if
you satisfy the Judge in the first few minutes
that you have a presentable case, as I have said that you should
do, you willalways be allowed to deal with it in your own
way. Let meconclude by drawing your attention to the
c
significant words of Lord Macmillan. lt is a well-known
tiought that the past may not be remembered and that success
3 worth
achieving at any cost. Let your conscience 'hang about
lie neck of your heart' as it did about Launcelot Gobbo's ;
is perpetual.
'Though it is a restriction upon practice, it is highly desir-
able thafran advocate should not appear before a local authority
of which he is a member or in a case against it.' The Bar
Councils of Patna and of Allahabad have rules to this effect.
The Patna Bar Council have an additional rule which states
that 'An advocate shall not accept a retainer or brief in a case
in which he has acted in a judicial or quasi -judicial character,
where, for example, no provision can be made for any one else
to conduct the trial. In other cases he may be called merely to
speak to a matter not involving the merits of the case. On
the whole a satisfactory rule to adopt is to leave the decision as
to whether a lawyer should continue to the discretion of the
presiding Judge and only allow him to be active in the further
conduct of the case with the Judge's permission. On the
one hand, such a rule would not permit counsel to give pro-
fessional ethics as his excuse for withholding material evi-
dence ; on the other, recognition that the basis of the rule
is a matter of evidential rather than professional ethics would
or even worse. "Why should you sue for property, for which
you have been paid?" was asked. "O", was the reply, "I
choose to insist upon all my legal rights.'* The lawyer broke
into a rage, and he ordered his would-be client off, with the
remark that he must find somebody d d
else to aid him in his
ought never to brood over its smallness or over the higher fee
secured by the opposing counsel. 'No man ever succeeded in
life who failed to put conscience into the work, no matter how
humble it was. Every man should conscientiously recognize
this predominating fact, that when he agrees to perform a
certain labour for a certain remuneration, however small in
proportion to the amount desired, he has sold his time and
ability, and agreed to perform the work in his best possible
manner.' Working for the success of the client is your only
concern after you have accepted the engagement. Avarice
is one of the most dangerous and disgusting of vices. But it
is fortunate that it is not found so often in youth as in age. It
your own.
A related question is how far counsel can delegate his
functions without the obligation to return the fee. Current
practice is for one counsel to transfer a brief to another on his
own responsibility when he is unable to attend to it himself,
owing to ill-health or unexpected pressure of work. Courts
recognize such delegation and give audience to the delegate ;
the privilege.
14
106 PROFESSIONAL CONDUCT IN GENERAL
Nor should a practitioner accept an engagement knowing
he cannot attend to it himself and with the deliberate intention
of transferring it this would be nothing less than an act of
;
from clients. In any event you cannot certify for the fee to be
included in the costs of the cause, though you may be
entitled to enforce it by suit or otherwise against the client
under the Legal Practitioners (Fees) Act (XXI of 1926) which
repealed Section 28 of the Legal Practitioners Act (XVIII of
1879)-
As I have said, the peculiar position of the advocate imposes
upon him duties in several directions. Though he represents
a client and owes duties to him, he is also an officer of the court
and a counsellor to it with special duties to discharge. At the
same time, as a member of the brotherhood of the law, he has
responsibilities to the profession and to his brother lawyers.
He also <owes duties to his opponent as a co-operator with the
court in its search for truth. He owes duties to his client and 1
193
124 DUTY TO THE COURT
lawyer is to be spineless and subservient to the Bench.
Occasions may arise when your duty to your client and a proper
regard for the interests committed to your charge render it
necessary on your part to offer a firm and decided opposition
to the view expressed or the course pursued by the court.
When this has to be done, do it in a manly way, but without
disregarding the outward forms of respect due to the court.
Your duty to the court involves that when you have started
on the hearing of a case, you should attend to it throughout ;
it. One side or the other must prevail in each of the several
stages of a proceeding in court; imagine the consequence
if the Bar generally were to
register its emotional reactions !
Counsel should bear in mind how wearisome is a Judge's
officeand how much there is to try his temper and patience.
*A good temper', says a learned writer, 'is an inestimable
advantage to a lawyer, and whatever his position it will carry
him, with ease, comfort, and rapidity, over all obstructions to
the end of his journey. A bad one will strew his way through-
out with thorns, will convert every one with whom he has to
deal into an enemy, and himself, in short, into his greatest.'
Youshould not only scrupulously avoid maligning a
Judge, or lending ear to any accusation against him, but
should also put down with a strong hand and with determina-
tion all such fefforts that may come within your notice. It
is not unusual in this country, as perhaps it is elsewhere also,
for a losing client to make improper suggestions about the
Judge. Never allow scandal of this sort to be suggested by
your client* I trust that the whole Bar acts with one mind on
this matter. Judges are not free to defend themselves and are
therefore particularly entitled to receive the support of the Bar
against unjust criticism and clamour. We
cannot forget that
the Bar and the Bench are mutually dependent and indeed
126 DUTY TO THE COURT
members of one body and
;,
that the Bar stands to gain by the
reputation for incorruptibility of the Bench. It is the spirit of
the Bar that must deepen and confirm the instinct of the Judge
for fearless decision. This does not mean that, even though
there isproper ground for a serious complaint against a judicial
officer, it is the duty of the lawyer not to submit his grievances
to the proper authorities in the proper manner.
The inclination of clients to offer engagements to relations
of the Judges who will hear their cases, mainly on the ground
of the relationship, ought equally to be curbed. No practitioner
ought to encourage this tendency. The Judge concerned will
appreciate your positive discouragement of it. It is reported
of the late Sir Gooroo Dass Banerjee, Judge of the Calcutta
High Court, that he would never take up a case in which one
of his relatives appeared as lawyer. Consequently neither his
son nor his son-in-law, who were members of the Bar, could
accept a brief in any case before him.
It is not proper that in court you should, without just cause,
Bovill C.J., said that the course which the learned counsel
had taken, was properly taken. Keating J., said: 'I would
merely desire to add an expression of my entire approval of
the course pursued by the learned counsel for the appellants ;
Judges.'
On the same principle it would not be professionally right
to include in the pleadings facts which the practitioner knows
personally to be false. It is no defence to say that the
statement is that of the party. In Thangcwelu Mudaliar v.
Chengalvaroya Gurukkal, 69 Mad. Law Journal 250, Sir
Owen Beasley C.J., observed 'With regard to the advocate,
:
While in the discharge of his duties in, and in relation to, the
court his actions and conduct are circumscribed by the
limitationswhich his character as an officer of the court might
impose on him, he does not continue to bear that character
throughout in respect of all his other acts in relation to or
on behalf of his client. In other words, a practitioner acting
for hisi client is acting in a much larger sphere than is
connoted by his relation to the court as its officer; and the
scope of his actions and conduct, as solicitor for his client, is
by no means coterminous with the range of his duties as
such officer. To hold otherwise would cut at the very root
of the position of the practitioner, in the scheme of the ad-
ministration of justice, as a necessary intermediary between
the client and the court and as an accredited representative
of the client for whom he appears. The House of Lords recog-
nize this distinction, that the practitioner has duties towards
GUIDANCE FROM MYERS V. ELMAN 188
your client. This duty lies more heavily upon the junior and
there can be no excuse for his not being in attendance at all
times. The decision in Maharaja of Vizianagaram v. Lingam
Krishna Bhupati, 12 Mad. Law Journal 473 at p. 475, may
interest you. There junior counsel was ordered to pay the
costs of the hearing in reversing an order of a Judge dismissing
a suit, for default of appearance when both the senior and
junior were absent at the time when the case was called. It
used to be said of one of our respected leaders, the late Dewan
Bahadur C. Ramachandra Rao Sahib, that though he might
have only one case in court, and that the last on the list and
not likely to be taken up for many days, he would be in atten-
dance every day from the time the court sat till it rose and from
the first day that the case appeared on the list.
CHAPTER XII
DUTY TO THE PROFESSION
Enumeration of many duties Foundation of the edifice of the Bar The
fraternity of the Bar Spirit of service and equality Each member a trustee for
the profession as a whole Nasty habit of fawning Never decry your
colleagues Behave like a sportsman Suggesting senior or junior counsel
Settlement of a joint fee by senior Do not object to engagement of other counsel
Beating down fee of others engaged with you No encroachment on others'
business Honourable treatment of brethren Mutual relation between senior
and junior Accepting brief against a lawyer
-
Emulation of successful men
3. Do
not pursue your profession in a spirit of competition
and rivalry with your brethren.
4. Do not underbid.
5. Do not keep out a brother practitioner.
6. Do not indulge in scandalmongering about a brother
lawyer.
7. Do everything to encourage the spirit of comradeship and
brotherhood and to avoid 'the barren graces of the nil
admirari'.
8. Always be prepared to subordinate your personal inter-
ests to those of the profession.
9. Treat your seniors with respect and show sympathy and
kindness to your juniors.
10. Never refrain from giving help to a brother member or
generously acknowledging help given by him.
The edifice of the Bar is built upon the foundation of high
135
136 DUTY TO THE PROFESSION
tradition which has grown under 'the vigilant and watchful
eye of public criticism. I have referred to a general tendency
of antagonism to the Bar, notwithstanding the great service
that the Barrendering both to the State and to the
is
'It not for nothing that in the law we call each other
is
shall suggest who his junior shall be and vice versa. It would
seem that the rule should not be made strictly applicable to
conditions in our country where the dual system does not
prevail and the client does not possess the skilled assistance of
a solicitor in choosing his proper counsel. Oftentimes the client
seeks a suggestion in the matter and it would be impossible
for the advocate not to respond to the question. So long as
senior or junior counsel do not insist on particular junior or
senior counsel being engaged it seems that there would be
nothing unprofessional in suggesting the name of a senior or
junior for engagement whether it be in answer to a direct
question from the client or even by way of voluntary sugges-
tion in the best interests of the case. The mischief creeps in
where seniors exercise a silent and indirect influence in favour
of the engagement of 'consanguine!' or 'affines', or juniors
force the client to engage the particular seniors to whom they
are under obligation. The remedy, however, lies in the hands
of practitioners who must restrain themselves from enforcing
their predilections or prejudices, must give alternatives to the
client and must accept his ultimate choice. There can be
case in the Federal Court, where they apply with some modifi-
cations the English rule which requires a junior's fee to bear a
certainproportion to the fee marked on the senior's brief, Sir
Maurice Gwyer, first Chief Justice of India, says: 'It is the
luty of a junior counsel to refuse to accept a brief which is not
>roperly marked, and it is the duty of a senior counsel to
support his junior in every way, by refusing to go into court
inless a proper fee is marked on his junior's brief/ They have
tlso made a rule for the Federal Court 'that before a case is
called on
in court, counsel's fees shall have been legibly marked
ipon their briefs and that the back sheets of the briefs so
narked, with counsel's receipt on it for the fee, shall be pro-
luced on taxation to the Taxing Master'. A similar rule suit-
ibly framed for the provincial courts will be of great help.
I ought not to fail to draw attention here to a
corresponding
iuty on the part of the junior. No junior should fix a joint fee
or himself and the senior and unduly benefit himself by the
ransaction. A sense of fairness should prevail on all hands
md there should be no desire to make money at the expense
>f a brother member.
> recommend an
engagement to a colleague. Members of
le honourable profession of law must be, like Caesar's wife,
bove suspicion.
I shall now refer to some other points which are derivable
s corollaries from those mentioned already.
Never consider a client's proffer of assistance of additional
ounsel as evidence of want of confidence in you. You have
o right to be annoyed because he does so. The matter must
e left to the determination of the client.
Do not consider it part of the duty that you owe to your
lient to help him in beating down the fee of another practi-
oner who may be engaged in the case. Where the client is
rilling to pay a particular fee, it is none of your business to
eek to bring it down, though in your opinion it may be above
le normal. On the other hand, your duty to a brother
ractitioner being the greater, you will be acting properly in
elping to raise his fee to the normal level in cases where the
lient is aggressive and endeavours to lower it below the
roper standard.
Any efforts, direct or indirect, to encroach to any extent
pon the business of another lawyer are unworthy of those
rho should be brethren at the Bar. The trader is at liberty to
ike away his rival's customers if he can, but a lawyer must
ever entice of endeavour to entice another lawyer's clients,
is a learned writer observes, the last general clause of the
man, do not thwart him in his first attempt in court. Give him
a helping hand and encourage him to conduct himself well.
This will not affect the interest of your client in the least nor
;
consulting your friend for the order that you obtain may not
;
interest blinds his judgement his passion will not allow him
:
centre of their system and they make their clients and their
business interests revolve about that centre and reflect its
brilliancy. Such men try causes quite as much for the
spectators on the back bench as for the court and jury. They
pose for effect upon the public. They parade and display their
own wit or learning or experience to impress beholders and
magnify themselves and they use
;
their clients and their causes
as the opportunity or medium for display.' Needless to say
that any tendency towards this habit should be nipped in
the bud.
Conversely, bad behaviour towards less important clients in
court and in the presence of other people is another form in
which this tendency exhibits itself. Counsel forget that they
owe courteous treatment to all their clients and they cannot
expect the court to give them credit when they themselves do
not show any regard to them. Where such conduct is pursued
merely with a view to parade one's own superiority, it be-
tokens a vulgar mind. Your own self-respect and dignity
require that you should avoid such conduct ; they should not
stand in need of establishment by this method.
It is always desirable that you should not crowd together
different clients at the same time but fix separate appointments
for them to meet you. Some practitioners, particularly of the
type that have referred to above, deliberately plan to gather
I
accomplish the interests 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.' Lord Atkin says
similarly that you should avoid confusing your client's interests
with your still higher duty of observing truth.
You should neither enforce nor countenance your client's
insistence on captious requisitions or a frivolous or vexatious
defence, merely intended to vent his malice upon his adversary
or to annoy or delay him. Sharswood puts the matter in a
telling form thus : 'No man ought to allow himself to be hired
to abuse the opposite party. It is not a desirable professional
reputation to live and die with, that of a rough tongue, which
makes a man to be sought out and retained to gratify the
malevolent feelings of a suitor in hearing the other side well
lashed and vilified.' In such cases it is only proper that you
should give a determined answer to your client that he has
the option to choose other counsel.
The following rule extracted from the Ontario Code gives
useful guidance. 'As to incidental matters pending the trial
not affecting the merits of the cause, or working substantial
prejudice to the rights of the client, such as forcing the
opposite attorney to trial when he is under affliction or
bereavement, forcing the trial on a particular day to the
serious injury of the opposite attorney, when no harm will
resultfrom a trial at a different time. the attorney must
. .
166
CORRUPTING WITNESSES 16?
some matters where your activities as a lawyer in the exercise
of your profession have a bearing upon the life of society.
One essential duty you have is to discourage dishonest, as
well as desperate and dubious, litigations. Conversely you
should assist honest litigation. The general interests of justice
are as much your concern as your own character as a man of
honour.
Upon this topic Dos Passos says: 'In the commencement
of suits, the lawyer has need, therefore, of honesty, learning,
prudence, and patriotism. It rests with him to preserve the
purity of the legal system; to separate the chaff of fraud,
exaggeration and doubt from the wheat of fact and truth.
For if, from ignorance, dishonesty, or indifference to the
effects of his action, he advises the commencement of an
franchise from the State .' That you are a member of the
. .
'A man has only one right, viz. the right to do his duty.'
This is no light-hearted epigram.
The only occasion for claiming a personal privilege arises
in respect of expressions used by an advocate in the course of
a judicial inquiry. In England such statements are absolutely
privileged. No action can be maintained against a barrister
for anything said on such occasions even though it were
irrelevant and spoken maliciously, without reasonable cause.
PRIVILEGE OF UNFETTERED SPEECH 177
given by the client to his counsel and the court accepted the
statement of counsel made from his place in the Bar without
requiring it to be made on oath.
It will also interest you to know that on the same principle
the barrister in England enjoys a peculiar privilege. He has
the right to authenticate by his name the report of a case
*
decided in court. As soon as a report is published of any case
with the name of a barrister annexed to it, the report is
accredited and may be cited as an authority before any
tribunal.' That marks the limit of the reliance placed on the
from politics and public life, he may have more time to devote
to his profession, more time to meet and consult clients and
more time to discharge his professional duties. But it re-
dounds to their credit that members of the Bar have always
faced this situation with courage, unselfishness and sacrifice,
and borne their part in bringing about social amelioration
and advancement in the country.
You who are just on the threshold of your careers at the Bar
may be puzzled to know what you should do. Should you
take an active part in public life or should you confine your-
selves to the practice of your profession ? Here, indeed, is a
conflict which has to be reconciled, if possible. On the one
side, ifyou wish to rise to professional eminence, if you wish
to be successful and make money and a name, is it wise to take
an active part in public and political life so soon ? Is it wise to
devote more time and attention to these matters than your
ordinary duties as citizens demand ? To put the question more
bluntly, if a lawyer wishes to rise to eminence at the Bar,
should he not devote himself exclusively to the profession ? Is
not the law 'a jealous mistress' ? The problem is by no means
easy of solution. For one thing, it stands to reason that the
lawyer who gives all his time to his profession must, in the
long run, outstrip his competitor who divides his time between
law and politics. There have been men at the Bar, in our
CHANGE WITH THE TIMES 188
own experience and knowledge, who zealously stuck to law
and therefore rose to positions of eminence. On the other
side, there have been others whose eminence in the legal
sphere cannot be accounted for solely by their exclusive
devotion to the profession, but who were largely aided b.y
their place in politics and public life. There is also a third
profession ?
I will here quote the very relevant observations of a writer
in the Cornell Law Quarterly, Vol. XXIII The legal profes-
:
sion itself must change with the times. No longer can any
4awyer believe he exists [merely] to serve his client. He cannot
represent a special interest to the exclusion of other considera-
tions; indeed, in doing so, he misrepresents both himself
and his client. If his client cannot see the interest involved,
because he is himself a party to the cause, his lawyer must
see the larger issues for him. It is no accident that the great
legal reputations of our generation rest, not on the work done
by lawyers for hire, but on their public or their unpaid extra-
professional activities. For law is not a matter of going
184 THE PROBLEM OF THE FUTURE
through judicial processes, of shifting losses, of collecting
judgements, or of drawing a set of satisfactory papers. These
are means only. Behind the court, behind the Judge, beyond
the corporate mortgage and the file of documents, there are
endless human beings desiring to live, to work, to realize
themselves. Only as our procedures, our papers, our legislation
and our administration permit an even greater number of people
to satisfy their lives is our technique useful. If is for this, and
only for this, that our profession exists.' To the same effect,
spoke Choate 'I was brought up to believe that work was the
:
end and aim of life, that that was what we were placed here for.
But on contemplating your best examples, I have learnt that
work is only a means to a higher end, to a more rational life,
to the development of our best traits and powers for the
benefit of those around us, and for getting and giving as
much happiness as the lot of
humanity permits.'
I change of circumstances as calling for an
referred to the
examination of the situation from a new angle. The first and
most essential consideration is that the legal profession has,
of late, lost much ground. Members of a noble and honour-
able profession as we are, eminent and indispensable as our
services to society and the country have been, we cannot shut
our eyes to the fact that we have been losing rank steadily.
It is needless here to canvass the reasons that have led to it.
To say that in a measure, and in a measure only, the fault
'lies in ourselves that we are underlings' may be correct.
But it is necessary to affirm that it is not due to any falling
off on our part from our high traditions it is not that the
;
ideals and standards that the profession has always had have
been lowered it is not that members of the Bar have become
;
party to present his case to the best effect. The rule should
give the right of being represented by counsel in all cases.
The second aspect is that of the legal profession, whose
members are now denied the privilege of standing for justice.
It is forgotten that the legal profession is a co-operator in
May God speed you and bring you all success with
honour t
APPENDIX I
THE JUDGE
Identity of vocation between Bench and Bar Assumption of distinction between
them, untrue Conduct of Bench towards Bar, a relevant topic Counsel's
duties arise largely out of his relation to court Counsel's right to have expecta-
tions of Judge Duty of Judge to regard privileges of Bar Exclusiveness of
Judges, undesirable Interruptions from the Bench An instance of the Socratic
method Questionable propriety of this method Court made a debating forum
Junior counsel handicapped Mid-course between undue interruption and
absolute silence Counsel prefer interruption to immobility A taciturn Judge
Methods of cutting arguments short Should Judge previously study papers ?
Opinion in favour of a not too careful or minute study Duties of patience,
courtesy and kindliness
engaged.
I have referred to the primary duty of counsel not to be
presiding Judge.
Some judicial officers, particularly in the mofussil, suffer
from an obsession that easy relations with members of the Bar
are liable to be misunderstood and that they even derogate from
their own dignity. The consequence is that they shut them-
selves up in seclusion, and are the worse for it from every
point of view. I believe they suffer mentally, morally and
physically, and lose intellectual vigour, moral equipoise and
physical stamina. They will not move on easy terms with a
member of the Bar who practises in their court they generally
;
avoid all kinds of social contact, and where they attend any
formal function they cannot shed the consciousness of their
judicial office but feel offended if the same form or manner of
courtesy that they are accustomed to in court is not shown to
them at social gatherings as well. This enforced exclusive-
ness on the part of Judges, I should say, has a baneful
effect even on the administration of justice. No Judge need
show that there was very much more in my case than perhaps
His Lordship prima facie thought there was. The learned
Judge then adjourned the hearing until the petitioner's counsel
arrived on the scene. What happened when the case was taken
up ? It was a tussle, a quarrel, you might call it a fight, between
the Judge and myself, each questioning the other, each exposing
the untenable consequences of the position taken by the other.
This went on for more than two hours, and the judgement
which was then pronounced, without calling upon the respond-
ent, was to this effect: 'For reasons orally stated by me during
the discussions at the Bar, the second appeal is dismissed with
costs.' On my part, there was nothing to be dissatisfied with.
It was an intellectual treat. But was I the only person to be
satisfied ?
There may well be differences of opinion on the usefulness of
such a method. Its propriety may not be generally accepted.
For one thing, it converts the court-house into a debating
forum. It leaves little room for cool and collected thinking.
On the whole though with competent Judges justice may
not fail in many cases there may remain that residuum of
doubt that justice has not been reached. In any event, the
client will not have the satisfaction of knowing that his cause
has been heard fully and satisfactorily. Even when his argu-
ments are calmly and patiently heard, how often does not the
practitioner indulge in introspection, wondering whether he has
said everything that can be said, discovering to his dismay
that he has omitted a possible aspect, and then seeking to find
laboured satisfaction in the thought that if he had put forward
that position the opposite side would have met it with such
other answer, and that the result would not have been different.
Which practitioner has not, at one time or another, passed
through mental agony of this kind ?
Secondly, this catechismal method is a definite handicap
to the junior practitioner, however able, who is not accus-
tomed to presenting all his arguments in this form, whereas
he would find himself greatly helped by limited questioning
from the Bench. Interruption or questioning within limits
should always be welcome, because they indicate the trend of
thought of the Judge and the points to which it is of special
importance that the practitioner should direct his argument. A
THE JUDGE 201
Master of the Rolls, who afterwards became the Lord Chief
Justice of England, said : 'The task of the Judge is difficult in
observing the mid-course between the cross-examining spirit
which incessantly interrupts counsel and the absolute silence
which refrains from asking a question which might serve to
elucidate a difficulty.' An interruption that assists an argument
has to be distinguished from one that destroys it.
Would the Bar prefer a Judge to sit absolutely silent and
not to indicate any kind of reaction to the arguments proceed-
ing before him ? I think that the unanimous opinion of the
Bar, excepting the very few who mechanically recite arguments
got up by rote, would be against him. They prefer to be
lightly interrupted and in any event to be given some indication
of the Judge's attitude. Nothing is more difficult than to
*
reply, with the remark that as the respondent had not been
called on those points, the appellant had no right to reply in
the form that he did.
Then there is the question whether Judges should study the
papers at home before they hear counsel. No one can object to
a Judge acquainting himself sufficiently with the facts of the
litigation to follow the arguments with interest and easy
appreciation, just as he can lawfully make a personal local
inspection in order to understand the facts and evidence of a
case in their proper bearing. The evil lies in the tendency,
which may develop into a habit, of forming conclusions in
some rough form before hearing counsel. There are Judges
who study the papers and with care, and then confront
in detail
counsel with material of which even the other side may not
realize the force. And a Judge's point has always a hundred
per cent value. The better opinion seems to be that this kind of
preparation of a case by a Judge does not lead to the sound
administration of justice. Where the court that hears the
case is composed of a Bench of two or more Judges, no useful
purpose is gained by a discussion over the head of another
Judge, who may not only be not interested but perhaps
annoyed at it when his opinion has equally to govern the
ultimate decision. No Judge need aspire to prove that he is
abler'than counsel appearing in the case. Judges are, after all,
human, and when unintentionally scope is afforded for the ego
to assert itself it is not easy afterwards to control it. It is also
excusable that Judges should entertain an exaggerated idea of
the importance attaching to their position and of the value of
their opinions. The ideal has been stated in the following form,
that the most, eminent characteristics of a Judge are the
realization, first, of 'the duty of patience' and, second, of 'the
high obligation of courtesy and kindliness'. Among the rules
that Lord Justice Fry set himself to follow was one which
THE JUDGE 203
material points of that which hath been said and to give the
;
indemnify the party who had been injured, and that misconduct
or default or negligence in the course of the proceedings was
sufficient to justify such an order. He followed this up by
SELECT BIBLIOGRAPHY
ARCHER (G.L.) : Ethical Obligations of the Lawyer (Little,
Brown, Boston, 1910)
BROWNE (J.H.B.) :
Forty Years at the Bar (Herbert Jenkins,
London, 1916)
Dos PASSOS (J.R.) The American Lawyer (Consolidated Law
:
London, 1879)
HARRIS (R.) Hints on Advocacy (Stevens, London, I7thed.,
:
1937)
HICKS (F.C.) Organization and Ethics of the Bench and Bar
:
1943)
PARRY (E.A.) The Seven Lamps
:
of Advocacy (Ernest Benn,
London, 1926)
REED (J.C.) Conduct of Lawsuits (Little, Brown, 1912)
:
Madras, 1918)
911
212 APPENDIX III
913
214 INDEX
American Bar Association, r.i.r.t. canons of professional ethics, 122
?
counsel testifying as witness, 97
9oath of admission, 122
Analogy, occasional citation of, 79
Annoying witness, avoid, 68, 146
Answering directly when questioned by court, 72
Answering, take time when, 70
Antagonism between lawyers and politicians, 5
Antagonism towards lawyers, their eminence the cause of, 8
Anticipation, called for, in preparation of case, 30
Anticipation of adversary's points in pleadings, 48
Anticipation of others' thought, 70
Antiquary, q.i.r.t. true estimate ol lawyer, 5
Appeal? multiplying grounds of, 54
, preparing grounds of, 53-4
Appellant's arguments, mode of presenting, 87-9
Appellate hearing, mode of preparation for, 39-40
Appellate Side, High Court, Madras, practice to charge half fee on
compromise, 113-14
Appellate Side Rules, r.i.r.t. instructing other counsel during in-
ability to appear, 118
Apprenticeship, engagements during, 19
Arbitrator, not to accept brief, 96
Archer (G.L.), q.i.r.t. abandonment of profession, 194
, accepting doubtful cases, 101
Arguing across the Bar, 71
Arguing, calmness in, 70
Arguing points of law, 91
Arguing privately with Judge, duty of lawyer to avoid, 125
Arguing, self-possession while, 70
Arguments, citation of analogy and illustration in, 79
, continuing, when not required, 72-3
,
do not assume previous knowledge of, in Judge, 76
, do not press bad or doubtful points in, 80
, for appellant, mode of presenting, 87-9
,
for respondent, mode of presenting, 89
, hagte in commencing, 69
,
loud words, etc., to be avoided in, 77
, necessity to evaluate relative value of points in, 81 , 82
, necessity to quote chapter and verse in, 77
, never assert personal belief in, 159
, offering, when not called, 72-3
, on points of law, 91, 92
, passion in, to be avoided, 70
, repetition of, 126
, starting, in medias res, 76
9 suggestive method of presenting, 79
,
to be avoided in pleadings, 47
INDEX 215
Arguments, to be direct and pointed, 75
,
to be in correct and elegant language, 78
,
to be in good humour, 70
, to be in
good taste, 78
,
use legal phraseology in, 79
Arranged study necessary, 18
Arrangement of papers, 38
Aspect of a point, caution necessary in first presentation of a particu-
lar, 75
Asserting belief in client's innocence, 86
Athenian and Roman lawyers, r.i.r.t. fees, 174
Atkin (Lord), q.i.r.t. confusing client's interest with truth, 157
, dishonesty and insincerity, 4
,
hard and regular work, 12
, lawyer's power to make compromises, 150-1
, liability for clerk's misconduct, 153
Attack, changing grounds of, 83
Attack with best points first, 74
Attending chambers of senior, 24-5
Attitude of witness, studying, 36
Attorney-General of Boston, q.i.r.t. relation between Bench and
Bar, 174
Audience of the court, lawyer's right to, 173
Avarice, lawyers must shun, 104
Back fees, in
Bacon (Lord), q.i.r.t. 'chopping' with Judges, 72
, essentiality of the legal profession, 7
, hearing clients, 26
, Judges studying papers at home, 76
, losing time, 165
Bad cases, lawyers and, 27, 100, 158
Bad characters, the melancholy exceptions of, 4
Bad point, avoid pressing, 80
Bailee or debtor as regards client's money, 162-4
Balance, counsel never to lose his, 73
Balance of client's money, duty to return, 161
Ballantine (Serjeant), q.i.r.t. reckless questioning, 62
,
r.i.r.t. continuing appearance after client's confession, 102
or quasi-judicial character, 96
, ,
advocates appearing before or against local authorities
of which they are members, 96
Barristers' Benevolent Association, 193
Battle-ground, choose your own, 83
Beasley C.J., q.i.r.t. including in pleadings facts known to be false, 129
Beating down another lawyer's fee, 141
Belief in accused's innocence, not to be asserted, 86
Bench and Bar, mutual obligations of, 175
Best evidence to be presented first, 74
Best point to be presented first, 74
Bhashyam lyengar (Sir V.), r.i.r.t. answering questions from the
Bench, 70
-
arguing respondent's cases, 90
preparing a case, 31
repeated study, 17
studying reports, 33
studying statutes, 17
temporary advances to clients, 115
Blackburn J., q.i.r.t. lawyers' responsibility for conduct of litigation,
158
Blackie (J.S.), q.i.r.t. laughter in court, 161
,
moral excellence, 1 1
,
the cultivation of memory, 17
Blackstone (W.), q.i.r.t. the law being a learned profession, 1-2
Bombay Bar and contingent fees, no
INDEX 217
Bombay Bar Council, see Bar Council) Bombay
Books, knowledge of, necessary, 22
Bore, avoid being, by not repeating arguments, 73
Boston (C.A.), q.i.r.t. contingent fees, 108
Bovill C.J., q.i.r.t. counsel saying he has no case, 128
Bowen (Lord), q.i.r.t. giving up profession, 194
Bramwell (Lord), q.i.r.t. dishonesty and insincerity, 4
Brett J., q.i.r.t. counsel saying he has no case, 128
Briefs, accepting with intent to transfer, 105
,
advocates to avoid accepting before or against local authority of
which they are members, 96
, duty to accept for proper professional fee, 103
, lawyer not to make distinction between, 160
, limitations in transfer of, 105
,
not to be accepted if counsel cannot attend to them, 161
,
not to be accepted, in which counsel has acted judicially or quasi*
judicially, 96
,
not to be accepted when counsel a likely witness, 97
, payment of fee when transferring, 164
Broom's Legal Maxims, recommended for study, 20
Brotherhood of the Bar, i
,
low fees, 29
, partnerships in the legal profession, 192
, thorough preparation of cases, 41
1
,
conditions concurrent, 52
,
conditions precedent, 51-2
,
conditions subsequent, 52
,
do not merely allege fraud, 48
,
exclude matters of evidence, 47
,
need for artistry in, 44
planning necessary, 44, 45
,
pleading estoppel, 48
,
, dangers in, 57
, difficulties in conducting, 55-6
,eliciting adverse facts in, 58
, how not to conduct, 59
,
mode of conducting, 56
,preparation for, 35-6
,proper way to begin, 58
,self-possession necessary in, 56
,
value of having ready-framed questions in, 57
,wrong way to begin, 57
Examination of witnesses, general principles, 67
Exemption from arrest, privilege of a lawyer, 177
Exhibiting adverse documents, 134
concessions in, 29
,
, during apprenticeship, 19
, duty to insist on minimum, 1 13
equipment of lawyer, 9
Freedom of the legal profession, 180
Fruits of litigation, sharing of, unanimously condemned, 112
29
226 INDEX
Indian Evidence Act, r.i.r.t. confidential relation subsisting between
lawyer and client, 118
Industry, motto of professional life, 12-13
In medias res, never start arguments, 76
Insincerity of the legal profession, alleged, 4-5
Insolvency law, knowledge of, necessary, 23
Insurance for the legal profession, 193
Integrity and honour, necessary for success, 12
Intensive study necessary, 18
Interest versus duty, duty to prevail, 96
Interruption, ineffective and inopportune, 71
Interruption of counsel on opposite side, 701, 126, 144
Interruption of Judge, unpardonable, 70
Interviews to press, unprofessional, 96
Invective in argument, condemned, 78
Invigorating science, law is, i
crippling opponent, 32
,
standard to be maintained, 29
,
,
form of questions in cross-examination, 61
Wottan (Sir Henry), q.i.r.t. envy, 143
Written statements, see Drafting plaints; Drafting pleadings;
Plaints; Pleadings
, denials
to be specific in, 52
,
method of preparing, 50