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February 1, 2019

SWOC Analysis of Litigation as a Career

Litigation is the most common practice area in the legal profession. It is estimated, more than half of all legal professionals focus in their practice, in whole or in part, on litigation. Litigation, is a ‘pure’ practice of law. Two ‘advocates’, each representing a client, fight it out in a court of law, before a judge. Litigating, however, retains a unique charm and to the old-timers is all that counts as being a lawyer. The adrenaline rush that accompanies addressing a courtroom packed with spectators hanging on to every word, the power to shape the outcome of disputes potentially impacting upon the lives of millions of people, the ability to get relief in legal battles involving even larger sums of money, the opportunity to put the guilty behind bars and safeguard the liberty of men wrongly accused, is a singular experience

A career in litigation offers many benefits. For legal professionals who work in the litigation arena, every day is different. At the inception of a case, investigating the facts, tracking down witnesses and gathering evidence is a challenge. For cases that proceed to trial or arbitration, preparing for and participating in trial will keep all parties busy and on their toes. Those who work in litigation rarely handle a single case at a time; they must simultaneously juggle multiple number of cases in a day, each with their own obstacles, clients, and deadlines. In a busy litigation practice, you won’t be bored. In addition, this practice area can be quite lucrative and recession-proof.

There is anecdotal evidence to suggest that, with the prolonged downturn leading to shrinking corporate margins, corporate houses are becoming more combative, much readier to sue if they feel their interests threatened, than before. Corporate litigation, challenging the government’s tax and tariff demands, for instance, or taking on fellow corporate houses over alleged breach of contract, is increasing. Litigation-related work is a better platform of opportunities to newcomers. With litigation increasing, more youngsters are also getting a chance to do significant work.

The first is the independence and thrill it offers, one of being on one’s own. You are the ruler of your own life, and that freedom is invigorating.

Secondly, building a solid case for a client, and convincing the judge of one’s point of view using logic, research, reason, persuasion, and occasionally, dramatics, gives one a high that few other professions can offer. Strategizing for a case, knowing what to file and how to file it, how to leverage the strengths of the case and work around its weaknesses, when to make a technical argument, when to appeal to the judge’s sense of equity, when to do both, are all equally important and exciting, especially when you have a shrewd opponent. Arguing in court or cross-examining a witness are like a game of chess; nuanced, difficult, terribly intense, and a lot of fun.

Thirdly, it gives one the opportunity to engage with subtleties of the law and push its boundaries. While an advisor needs to be cautious, and with good reason, the litigator can engage in intellectual and verbal jugglery to break new ground.

Fourthly, a career in litigation, even in a specialised field, offers staggering variety. No case is like another. Obviously, no two disputes can have the exact same set of facts, and very often, small distinctions make all the difference. Finding these dissimilarities means work does not get monotonous. No day is like another. Some days, you are done with all your work by afternoon, and on others, you could find yourself working all night.

Fifthly, every nook and cranny are filled with strange people and stranger stories, emotions run high, wounds are raw and open. But even in this charged atmosphere, there is space for lightheartedness, laughs and gossip. Even when the waits in the courts seem interminable, the courts hold a variety of quirky characters to keep you amused. And this, for someone who loves studying people, makes the court an exhilarating place to work.

  1. It is a myth that being eloquent and well-spoken are important qualities of a good litigator. While those can be useful secondary traits, the most important quality to becoming a successful litigator is being diligent about your files. For a litigator, a meticulous reading of the ‘files’ is a must. You should know what exactly is there on what page.
  2. Train long enough under a senior. Have patience. Build a ‘close association’ with him/her. The desire to be independent should be delayed to get ‘quality training’.
  3. Listen to the seniors arguing in courts. Understand how they go about their arguments.
  4. Point number will add great value and experience and this will come handy when you have to ‘think on your feet’. Thinking on your feet doesn’t come with a swish of a wand. It comes from listening to the legends for long hours.
  5. While arguing, develop a neat structure for your points. Know what you’re ‘best points’ are.
  6. This will take time to develop, but get a 360-degree view on things. Cases are not won and lost just on the laws, facts, logic, and arguments. Knowing how the judge is reacting that day, for example, can be critical. One needs to develop such a holistic awareness on the go to be a successful lawyer.
  7. Never put on airs, before a judge or otherwise, but state your case simply and with conviction.

The abundance of black-robed people swarming the courts all across the country, from the lowest district court to the Apex Court, lends the impression that there is a profusion of lawyers engaged in litigation activity. But the reality is starkly different: the brightest candidates from premier law schools have preferred to stay away from litigation. The reason is obvious: litigation, most of the time, does not pay well. Top lawyers may be charging exorbitant fees from clients for each court appearance, but it takes years for young, new entrants to climb those heights.  This has been one of the impediment in administration of speedy justice in India.

Even after removing minimum number of years of experience in lower judiciary number of quality applicant and quality judges found at lower judiciary has been a great concern which has led to weakening of judicial capacity of lower court judges. With the prolonged downturn leading to shrinking corporate margins, corporate houses are becoming more combative, ready to sue if they feel their interests threatened. Corporate litigation, challenging the government’s tax and tariff demands, for instance, or taking on fellow corporate houses over alleged breach of contract, is increasing. Litigation-related work opens new possibilities for fresh entrants. With litigation increasing, younger legal practitioners are getting a chance to do significant work and bring the change Indian legal system deserves.

Law firms in India are expanding their litigation teams, owing to recessionary trends in the economy, there is a slowdown of corporate work in law firms. On the other hand, there is a tremendous growth in the dispute resolution space where a lot of work is being generated on the corporate litigation and arbitration side. It is interesting to note that corporate law firms are expanding their dispute resolution practices in the market. As there are various options available in the legal market, it becomes easy for an experienced lawyer to transfer the respective skill sets and expertise from one domain to another. There is an increased trend of litigation lawyers doing better.

Dr. M. L. Kalicharan
Professor and Director, School of Legal Studies
REVA University, Bengaluru

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