Bharat Chugh
@advbharatchugh
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As I complete 10 years in the profession (both as a lawyer and as a judge), starting a thread of 10 thoughts/learnings (for whatever they are worth!) on : The Art of Advocacy, Cross Examination, Thinking/Legal reasoning, Legal Strategy, Impactful Legal Writing. So here goes:
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1. Rape is Rape. Marriage is no defence. Marital Rape Exception has no place in any civilised jurisprudence.
2. The anxiety over misuse of law can be better allayed by preventing illegal arrests, making bail easier, & having very strong disincentives on filing of false complaints
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“Bharat, go ahead and do well; but if you mess up and the client is unhappy, tell him Mr.Sondhi told me to argue this way and take this point; put it on me, I’ll handle!”
That’s what my senior and my elder brother Vijay Kumar Sondhi told me - on one of my 1st matters as a lawyer
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It's high time that trial court judges also get law researchers/interns. Trial courts are extremely overburdened with admin+judicial work and such assistance would really help better adjudication, besides offering young students/lawyers great learning & a ring side view of trials
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15 troubling aspects of the new criminal law amendments.......
(In no particular order)
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“The history of personal liberty is largely the history of insistence upon procedure.” Justice Khanna
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Totally ignores the settled jurisprudence on the law of defamation.
Ex-parte injunctions are not and should not be granted in such cases.
Whether the alleged speech is defamatory or justifiable is, more often than not, a question of fact that is to be determined at trial.
Bengaluru Court directs X Corp to temporarily suspend TheLiverDoc id on defamation suit by Himalaya Wellness
report by
@satyendra_w
#TheLiverDoc
@theliverdr
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Lawyering of tomorrow isn't going to be about hammers and gavels, funny wigs, mahogany courtrooms, Latin maxims, leather-bound commentaries, or "parties of the first part". It's going to be about - plain English, dispute avoidance/prevention, communication & problem solving...
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On The Art of Cross Examination :
1. Failing to prepare is preparing to fail. You have to LIVE the case to be able to cross examine well.
2. When the witness is under cross examination, you are on trial too; especially when giving suggestions, as they can amount to admissions.
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True advocacy isn't about having the loudest voice in the court, being 'very-argumentative', or playing to the gallery. It is the capacity to carefully weigh, reason & respond. It's also about strategic silences, not just speech. It's also about fighting,without having to fight.
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Criminal Defamation, as it stands, is unconstitutional. It is an absolute anathema to Democracy and Free Speech. People (as long as there is no incitement to violence!) should not be jailed for merely speaking their minds.
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‘I am not young enough to know everything’.....(Attributed by some to Oscar Wilde)
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From one of the clearest legal thinkers of our times
@gautambhatia88
's Unsealed Covers is a great read; it 'covers' an array of constitutional law issues & 'uncovers' some rather disturbing adjudicatory trends. A book commensurate with our times. Makes you think. A lot. A 5/5.
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Goodbye, Mr.Luthra!
Learnt this from you:
In d world’s field of battle,
In d bivouac of Life,
Be not like dumb, driven cattle!
Be a hero in strife!
Lives of great men remind us
We can make our lives sublime,
& departing leave behind us
Footprints on the sands of time
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A recovery suit of 20,000 may be an existential crisis for a small trader. Its not just a "non-urgent file" to be adjourned down the road. It is unfortunate that 1-year-on we continue to deny these people justice by characterising these cases as "non-urgent".
#ScanThoseFiles
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A few thoughts on Court Craft:
1. Be fair & honourable. An advocate is a story-teller but she's an ethical story-teller. You don't take creative liberty with the facts. You may be entitled to your own opinions or interpretations but you are not entitled to your own facts.
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1. Ignorance of law is no excuse.
2. Judgments constitute ‘law’.
3. Some judgments are so full of bombast and verbosity that it is absolutely impossible to understand them.
We must either write clearly, or make ‘impossibility to understand a judgment’ an excuse in law.
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The difference Between a 'Criminal Justice System' and a 'Criminal System' is 'Justice'. And that Justice lies, more often than not, in ensuring and protecting personal liberty & strict observance of procedural safeguards, and that's what makes CrPC such an important subject.
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Lord Henry Brougham, an English barrister: “a lawyer must know everything about something and something about everything”.
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1. Just reading the brief is not enough. YOU HAVE TO THINK ABOUT THE BRIEF. Visualise. Anticipate. Law and legal strategy is all about that. An ideal preparation is the one in which there are no surprises for you, and nothing can unhinge you - while you’re there in the Court.
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“lf someone tries to steal your watch, by all means fight them off. If someone sues you for your watch, hand it over and be glad you got away so lightly.”
― John Mortimer (on Law and Litigation).
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3. Read. Live vicariously. By reading you can lead multiple lives within the short span of your own life. Stand on the shoulders of giants by conversing with the best minds in history, through books/podcasts. Learn from their mistakes and triumphs. All of that helps you in law.
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Best thing I read on Arbitration today: “Do I believe in Arbitration? I do. But not in arbitration between the lion and the lamb, in which lamb is in the morning found inside of the lion.” By Samuel Gompers
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Justice Muralidhar would have contributed & added much more to the grace, stature & the moral authority of the Indian Supreme Court than the other way round....
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10. Prepare. Prepare. Prepare! How good you are as a lawyer depends on how much you read and prepared the day/night immediately before the matter. Each court performance is an opportunity! Take it seriously. Also, you are as good as your last performance in Court.
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Shocking that over 70% of cases before Trial Courts are Criminal Matters. Have people lost all faith in civil justice processes? We've seen more & more people turning to criminal law to enforce contracts. Views on this docket exclusion (in civil) & docket explosion (in criminal)?
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4. Master the Art of Story telling. Lawyers, through stories, communicate narratives, thoughts and ideas. There's nothing that appeals or persuades as well as a nicely woven story. Remember, on an evolutionary level, we are hard wired to respond favourable to "Once upon a time.."
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Dear Delhi, Try celebrating Diwali without crackers; we need those lungs more than ever - now.......
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justice is open to all; like the Ritz hotel (James Matthews)
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Your real CV is a list of your sufferings, set-backs, and hardships……..and how you overcame them.
There’s simply no better evidence than that.
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We'll be seeing interesting jurisprudence in the near future on interpretation of emojis. For instance, Can😶 this be construed as a warning to stay silent? Similarly, in a conversation regarding a contract, can🤝constitute a legally binding contract; what about 🍾 or 🥂 though?
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2. It’s much more than the case file. When you argue a case, you bring to the table your lived experiences, understanding of life, economics, policy, sciences, and - most importantly, human beings. But then all of this comes with age, right? Well, the answer is NOT NECESSARILY!
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AUDI Alteram Partem.
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A few thoughts on drafting of written submissions:
1. Lay out what the case is about in the 1st para itself.
For instance, in a contractual dispute, say, at the very outset, that this case concerns a software license agreement where X gave Y license to use it's software.
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Out of every 10 people in jail, 8 ARE UNDER-TRIALS. (IJR). This is deeply disconcerting. We must remind ourselves that it is the concept of 'Justice' that separates a Criminal 'Justice' System from a mere Criminal System. We need to think & decide what do we want to be.
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#NewCriminalLawAmendments
Proposed amendments to S.167 of the CrPC permitting Police Custody even beyond the first 15 days is deeply problematic.
This may further increase instances of custodial torture and extorted confessions.
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9. Being a great lawyer is not about being argumentative. The best kind of fighting is ‘fighting without fighting’ as Bruce Lee puts it. Learn first : WHAT NOT TO SAY. Strategic silences. Observe mistakes made by other counsel (Watch, for instance, Gujarat HC's YouTube channel)
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The Craft of addressing Final Arguments in Trials :
1. Your argument should, at the very outset, answer : WDWTW. Who did what to whom? Legal issues can come later.
2. Storytelling is key. Use choice details to paint a vivid image.
3. Carefully sift admitted and disputed facts
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Devil's Dictionary (of Law!)
D - Date: A Date is something extremely difficult for a young struggling litigation lawyer to get. Both inside AND outside the Court.
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"Justice? – you get justice in the next world, in this world you have the law." William Gaddis, A Frolic of His Own (1994)
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One can be a victim and a perpetrator at the same time. All history is evidence of this.
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The answer, imho, lies in systemic changes in our Criminal Justice System. For instance, we need to respect the presumption of innocence not just in theory but also in practice. Also, defendants in criminal cases need to be treated better until their guilt is established.
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6. If you can’t explain a legal concept or a case to your 14 year old niece, you haven’t understand it well enough. Most judges would be hard pressed for time and would have too much to think about. They'd want it plain and simple. AND AS AN ELEVATOR PITCH! (more on that next).
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Dissent in a court of last resort… is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” (Charles Evans Hughes)
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Just started reading 'Court on Trial' by
@ataparnachandra
, Siral Kalantry & Will Hubbard. Some interesting findings. It appears that, while having a Senior Counsel may vastly improve one's chances in getting Notice issued in an SLP, the same does NOT translate to success finally
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You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free....Clarence Darrow
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5. Lead a more examined life. Observe keenly. Listen carefully. Be aware. A lot of learning in law happens through osmosis. Also,never be in a state of willing-suspension-of-disbelief. Be a skeptic (but not a cynic!). This dialectic process or socractic method makes you better
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7. On writing, if you can't SAY IT OUT ALOUD TO A NON-LAWYER FRIEND, without that friend breaking up with you, don't write it! Write simply. There's great beauty in simplicity. When writing, remember, Judges, your readers, seniors, all have limited attention spans & limited time.
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Art of Trial Advocacy :
Be careful while drafting bail applications. Often the facts and the evidence are not clear when bail is being sought.
Getting too much into the nitty gritty of the facts may take away flexibility in terms of defence later.
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Litigation hinges on pattern recognition: observing how similar disputes have unfolded in the past. How a particular confluence of facts, evidence and law, leads to particular outcomes.
Like history, things often repeat themselves.
With experience (and please have patience!),
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While in an ideal world, SC should decide only constitutional law issues, but experience shows that many Courts still decline bail for broad reasons such as ‘the offence is serious’, ‘investigation is at a nascent stage’ & that is why intervention of the SC is sometimes needed.
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8. Develop range. Be a multidisciplinary thinker. Experience life & law in its infinite variety and diversity. As in life, in law - everything is interconnected. As someone wise said, specialisation is for insects. Don’t dig too deep into the trench of specialisation.Have range
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Law books for those in need
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To put the 'Justice' in the Criminal 'Justice' System, it's important to ensure that victims don't remain mere footnotes in a criminal trial.
Unfortunately, the clear message spelt-out by the SC in the case of Jagjeet Singh Kharbanda (2023) that : a victim has unbridled
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Devil's dictionary (of law!)
CPC or Civil Procedure Code: Also, 'Cumbersome Procedure Code'. Picture it as a tail on a dog. A tail so powerful, convoluted, and wicked that it has not only started wagging the dog but is now - unabashedly - strangulating the dog.
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Perjury is so rampant in India dt d act of deposition shuld b called ‘testilying’ and nt testifying. We mst create better incentives 4 trial judges 2 decide issues of perjury; right nw d whole systm is geared 2wrds disposal of cases, often at d cost of oder equally imp objectives
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'You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free.' Clarence Darrow
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Would be writing a daily twitter-thread on the Art of Advocacy & Law for the rest of the month.
A twitter-thread really forces one to distill one's understanding of an issue & put it as simply & clearly as possible.
It compels one to write short & writing short takes very long.
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Justice Medieval Style: Accused bound up & thrown in water. If he sinks, he's innocent; if he floats, he's guilty - for if The Water rejects him, he's guilty. I bet we'd be looking at our current Trial Practices & our reliance on oral evidence - a few decades from now, d same way
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Provisions in the CrPC relating to compounding (S.320) need to be re-examined. A lot of precious time of the High Courts is being spent on recording of settlements & quashing FIRs on the basis of compromise.
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Order is legally flawed and erroneous for the reasons:
1. In matters of where each party calls the others' claim's factually incorrect and where the defendant (as per
@theliverdr
statement) relies on scientific studies/documentary evidence to prove 'truth' and 'public good' and
Totally ignores the settled jurisprudence on the law of defamation.
Ex-parte injunctions are not and should not be granted in such cases.
Whether the alleged speech is defamatory or justifiable is, more often than not, a question of fact that is to be determined at trial.
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The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.
George Bernard Shaw
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Just read about the NCRB 'principal offence rule' where it picks the most serious offence in an FIR and reckons the case as such. For instance, a sexual assault & murder case would be characterised as a murder case only & not as a sexual assault case for the purpose of statistics
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An unjust law is itself a species of violence. Arrest for its breach is more so......Mahatma Gandhi
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Working on a project relating to the Working of the Trial Courts and how Tech can help streamline working/improve efficiency/accessibility. Ideas?
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Some thoughts on 313 of the CrPC:
1. Explain each incriminating evidence specifically and clearly.
2. Ensure that your narrative in S.313 is consistent with your defence in the case (as discernible from bail applications, cross examination of PWs, discharge application, etc).
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Part III of the Constitution does not part company
with the prisoner at the gates......Krishna Iyer, J.
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“The majestic equality of the laws prohibits the rich and the poor alike from sleeping under bridges, begging in the streets and stealing bread.”
...Anatole France
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Some good things about the New Criminal Law reforms:
1. Some more recognition of ‘victim’ as a stakeholder and increased participation at some stage. (Though the law doesn’t go as far as the judgments of SC have gone)
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I'd written a poem a few years back.
It was called 'The Tea Seller and the Judge', and confronted the moral dilemma of a young judge who is trying to reconcile Law and Justice and make them coincide.
This was a tough case (by any standards) and the idea was to do justice to
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“Let the jury consider their verdict,” the King said.
“No, no!” said the Queen. “Sentence first—verdict afterwards”
Alice objects.
'Hold your tongue!' said the Queen
'I won't!' said Alice.
"Off with her head!" the Queen shouted.
(Alice in Wonderland, or is it?)
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My top 8 reads of 2021:
1. Erik Larson’s Splendid and the Vile
2. The Plot - Koelitz
3. Codebreaker - Isaacson
4. Klara and the Sun - Ishiguro
5. The Silent Coup -Josy Joseph
6. Consolations by David Whyte
7. The Old Man and the Sea by Hemingway
8. Piranesi - Susanna Clarke
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"Nobody has the right to not be offended. That right doesn't exist in any declaration I have ever read.
If you are offended it is your problem, and frankly lots of things offend lots of people."
@SalmanRushdie
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Absolutely!
Law must not only react to social change but also INITIATE progressive social change and reform.
For if folks were such angels, we wouldn't need The Law in the first place.
On the demand for marriage equality, it would be a mistake to say society must first change, and then the law will follow.
If the law refuses recognition, what hope can there be from society.
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There is nothing to writing. All you do is sit down at a typewriter and bleed.
Ernest Hemingway
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#NewCriminalLaws
Take a look at proposed S.224 below:
Would a peaceful hunger-strike be an offence under this section?
If yes, at what point would a hunger-strike become an 'attempt to commit suicide'?
The 1st day or the 6th day, or whenever the authorities decide it does
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LITIGANT, n. A person about to give up his skin for the hope of retaining his bones. (from THE DEVIL'S DICTIONARYby Ambrose Bierce)
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“If we do not transform our pain, we will most assuredly transmit it” Richard Rohr
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International Law : Vanishing point of Jurisprudence (Holland)
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A satisfied litigator is, more often than not, a soft litigator. It's the creative, the passionate, the perfectionists, the hungry, the relentlessly-curious, (and - sometimes - the wounded) amongst us who are the most lethal & the best craftsmen. That's the nature of the beast
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A criminal justice system without 'justice' is a 'criminal system'. Urgently needed: better law and enforcement against custodial violence.
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Fans of arbitration say :"arbitrations slice a further two years off the appeals process...because there are so few grounds to appeal. So the pro-arbitration argument here is akin to : a dietician commending amputation as an efficient means of weight loss" ....Bruce Cannon Gibney
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Some thoughts on Advocacy:
1. You can persuade a Court successfully only & only if you are able to spell-out what you're asking for - clearly, precisely and politely.
2. The next task is convincing the Court that it is not only within Court's jurisdiction to do (what you're
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In d Merchant of Venice, Portia argued dt, since d contract provided only 4 a "pound of flesh", in specific performance, only flesh ought 2 be taken & not even 'a drop of blood' should b shed, which, of course, was impossible. A rare instance where strict legalism led to justice.
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Some of my favourite lines from Khalil Gibran’s The Prophet.
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