“If there were no bad people, there would be no good lawyers” – Charles Dickens
This quote appropriately describes the skills that a good lawyer should have to get his client out of trouble even if he is guilty of performing a crime. Building compelling arguments and presenting it before the Hon’ble Judge is one of the most quintessential skills that a good lawyer should have. In this column, we shall focus on how to come up with compelling contentions for your clients in the court.
“In the courtroom, it’s where a lawyer really becomes an actor. There’s a very fine line between delivering a monologue in a play and delivering a monologue to a jury. The best lawyers are really theatrical”. – Woody Harrelson
Being strong in your submissions is what matters the most for being a competent lawyer.
FINDING AN ARGUMENT?
Arguments are what make the crux of the whole case. If you collapse in making them compelling and persuasive, you will not be able to persuade the judge and that will make you lose the case. For mounting an argument regarding your legal issue, you need to have in-depth consciousness on the subject matter. You also need to identify the laws which govern that particular case. For building a compelling argument in the court, you’ll need perception, knowledge and the ability to see both sides of the debate.
Firstly, before building arguments what you need to do is that you have to know the legal issues. The issues around which the subject matter of your case turns are legal issues.
Then, you need to apply the law to the facts of the case. Secondly, you need to see what section of particular legislation pertains to your case.
Thirdly, read up reviews on that section for a clear and better knowledge. You will also find arguments with legal backing from various precedents given by the Courts there. In this arena of finding arguments, learning matters a lot. If you want to find good arguments for your case, you’ll need to have that special skill-set through which you would apply your analysis to the facts of the case. You shall be able to make compelling arguments after doing so.
And, lastly, it depends upon you as to how you can structure the arguments to bring out the resolution of the case in your favor. Certain arguments are fact related as there might be certain facts in the case which you could use to get your argument sound more compelling.
KNOW THE SUBJECT MATTER AND THE LAW GOVERNING THE CASE.
In order to make a compelling and convincing argument in the court, it is fundamental to know the subject matter concerned in the case that you have taken on the side of your client. This proposes that you need to know all the ins and outs of the case in order to overcome your opponent in the court. You need to go through the law governing the case profoundly. Identifying that particular law extensively will not only help you in coming up with compelling arguments, but it will also help you in figuring out the discussions which the other side might make. In furtherance of this, it would also help you in making counter-arguments. If you’re not through with the law or the subject matter of that case, the opposing side will definitely find the flaws in your argument which can end up in your losing the case.
MAKING THE ARGUMENTS COMPELLING?
The first and the leading step to make an argument is to provide that argument with a persuasive legal backing and make the best use of authorities that you’ve referred to in the case. While making the sheet of arguments that you’re going to present in front of the judge(s) you need to make use of certain case laws and authorities that support your case. For making an argument sound more convincing, you need to cite those authorities in the argument that are most relevant to your case.
Citing authorities just for the sake of it will not leave a good mark on the judge and he/she will not be able to understand your concern, as well as the analogy that you’ve drawn between the issue and the authority.
Also, the arguments need not be very bulky. You need to present them in a very brief manner so that it is not taxing for the judge(s) to listen to them.
You could put in various practical instances which would help in furthering the case of your client.
Think reasonably and draw analogies between the subject matter and the law. Your arguments should be reasonable and, in a sequence, to make them more convincing.
HOW TO RECOGNISE AND DISCARD WEAK ARGUMENTS
This part of preparing the arguments more compelling is really important as making weak submissions before the court can make you lose the case. Hence, you need to identify where a particular argument is weak. A sound argument is one which has a good analogy, is logical and is supported by facts or law in certain cases. A vulnerable argument is one which is based on poor analogy and errors. Weak contentions are those, which do not have legal backing supporting them. Contentions which are out of context, as in which do not concern the subject matter of the case and might mislead the bench are also weak arguments and need to be rejected. These are some ways by which you know a weak argument and then you might discard such arguments for improving your oral submissions.
IDENTIFY THE ISSUES TO BE DEALT WITH AND RESEARCH
Once you’re done with analyzing the subject matter of your case and also knowing the law thoroughly, you will be able to have a good idea about the issues and the sub-issues. This is the part where the crux of the case lies. So, you’ll have to be very precise and particular while making your issues and their sub-issues.
After making the issues and their sub-issues, you start with your analysis for knowing the ins and outs of the case.
You need to be meticulous in your research as well. For making compelling arguments, you’ll need to do this part with utter care. This is only because while researching, you might find certain precedents which would support your argument, making it compelling and convincing. For instance– If you find a case in which a court has declared a leading principle then you can cite that particular case and draw a parallel to make your argument compelling and persuasive.
For another example, if you need to understand a principle of law which is relatively misunderstood, then you can cite that case and present your perception of that principle to make your argument crispier and more appealing.
Doing this would not only encourage your case but will also help you in making arguments which are backed by legal principles. You also need to cite judgments which have already been determined by a court. Such judgments are also binding upon them. This will further enhance your case by making the arguments sound more compelling and effective.
THE OPENING SENTENCE OF YOUR ARGUMENTS SHOULD MAKE AN IMPACT.
As it goes outwardly saying, the first impression is the last impression. Therefore, this means that we do not get to make a second first impression. It is the same in the Court as well. Your break sentence, or the way in which you begin to perform your arguments also matters a lot. Most of the advocates sink to make an effect with their opening sentences.
You need to grasp the judge’s’ attention in order to make your case look tougher in front of him. Nevertheless, dry the case might be, you can always pick up and speak something out of the box to make your arguments more compelling. Writing an initial statement might be tougher and a more time-consuming task than all your other tasks combined. At the same time, it is very crucial as it might come out to be rewarding and fruitful to you.
CREATING A ROADMAP
After informing the bench with the issues at hand, give them a roadmap as to how you’re going to channelize your arguments for performing it before the Court. This, in turn, creates clarity in the minds of the judges and they know how the issues are going to be addressed by you. For example, if they need your input on a particular issue or if they believe that there is some issue that needs to be addressed and resolved prior to the other issues, they can ask you to present that issue first. This also assures that you do not miss out on any of your arguments and if there is a paucity of time, most of the important arguments would have already been heard by the bench.
If you have given under the roadmap to the judges, everything ultimately becomes really easy for you to present it before the judge and also for the judge to get it. For an example, you can also use this technique in answering judge’s questions and if you have multiple responses, you can tell the judge before you start listing them.
DON’T LET EMOTIONS DRIVE YOU –
It is essential for people to be driven by emotions when they come across something which they intrinsically care about, but for an advocate, the strength for his arguments lies in logic and reasoning. Hence, you cannot let your sentiments control your arguments.
For an example, if you let your anger regulate yourself before making an argument, you will not be able to make it a compelling one. You should look back again at your subject matter to find any dizziness in the argument of the opposite party.
It is usually a tactic which is used by your competitor to make you angry in an argument and make you perform mistakes. In turn, these mistakes make you lose honesty in your arguments. Thus, this is when you fail to make compelling arguments which might make you lose the case.
KEEP THE SUBJECT MATTER TO THE POINT
The arguments that you’re putting in front of the bench should be to the spot. If you encompass the legal issue involved, it would also make the issue for the judge quite difficult to concede. Thus, the arguments that you present should be comprehensive, but you should also be very accurate and clear in your arguments.
YOUR HEAD SHOULD BE CLEAR
Before making your arguments, you need to be remarkably clear about the subject matter included in your issue. If you anyhow get distracted from the issue, then making compelling contentions might become extremely difficult. Your head should not be clouded with views that are irrelevant and unimportant for your case. For example, presenting your arguments, your head should not have doubtful assumptions while arguing before the Court. If the Judge at a point of time asks you a question about your legal issue, your head should be clear while answering the question. You should not confuse while making the arguments or answering the judge’s questions.
YOU SHOULD BE A GOOD LISTENER
A genuine lawyer in the court is also a good listener. Listening and acknowledging the opposing side while the other side is arguing shows that you understand the opposing argument. When you understand the opposing argument, you could give counter-arguments and make your case harder.
INDIAN LAWYERS HAVE TO SAY-
There was a YouTube conversation with Mr. Ram Jethmalani in which he had encouraged lawyers to always speak in a clear tone and established the point in front of the judges in a clear and simple way. “Avoid needless histrionics and be straightforward in your submissions”, he said.
Another stalwart of law, Mr. Fali Nariman in his autobiography ‘“ Before Memory Fades’’ has set out unusual priceless & practical tips on how lawyers must prepare for and argue relevant cases. He says that “when you argue a case in court, be clear and precise, not confused. Your mental outpost must flow. And for it to flow you must be well equipped and well prepared”. He continues that “the skill of a practicing lawyer is not flamboyance or verbosity but hard work”. “Avoid histrionics and stick to the record; you will find the judge receptive to your pleas”.
MAKE THE MOST OUT OF THE TIME THAT YOU GET
The span for which you are there presenting your arguments, you need to give it your best shot.
It might be the last time that you’re arguing on part of your client for the case. You might win the case if there is any luck, even if you do not you can forever make a triumphant comeback later. You should not rely on this approach though, so give it your 100% and make the best out of the time that you get. In the end, it is this job well done that gets you your fortune.