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Understanding Power In Legal Profession (For Young Lawyers)

Goutham Shivshankar
23 Aug 2020 9:09 AM GMT
Understanding Power In Legal Profession (For Young Lawyers)
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A basic requirement of all strategies to counter abuses of power is to cultivate one's own strength.

This is a piece about power in the legal profession and its abuse. Law students are taught about power as a concept. We are taught that the rule of law civilizes power and that public law, in particular, civilizes power exercised by public authorities through a variety of devices, such as separation of powers, fundamental rights and judicial review. We graduate from law school thinking, not incorrectly, that our profession has special meaning because we can use the law to check abuses of power. We become good at recognizing some forms of power and their abuse. Unfortunately, we also emerge woefully ill-equipped to identify and navigate forms of power which immediately impact our lives as young lawyers entering the profession.

Young lawyers may possess talent, capability, enthusiasm, intelligence and a whole host of other excellent qualities. However, very few are likely to possess power in a way that is relevant in the profession. Some may benefit from forms of privilege that may insulate or cushion them from abuses of power. Normally, however, young lawyers are routinely exposed to situations with severely imbalanced power equations, where they are the ones without power. The first few brushes with power and its abuse can potentially be devastating for one's career and self-esteem. It is therefore absolutely important that we have the right guidance and counsel to help us cope at these early stages. I am fortunate to have had such help for the past several years. Many, too many, unfortunately, do not. It destroys their lives and careers. This is a step aimed at remedying that situation.

It appears to be the way of the world that only a few wield real power, though many covet it and some bluff about having it (fake it till you make it, as the saying goes). Irrespective of whether we may eventually wield power or covet it, most of us must encounter power and live our lives in close proximity to those who possess it. To live well and do well professionally, we must at least equip ourselves to navigate power well, when we encounter it. To properly navigate power, we must first understand what it does to those who wield it. To me, nothing exemplifies the effect of power better than two signboards that adorn the walls in the Lawyers Canteen in the Delhi High Court. Due to the canteen's restricted seating capacity, these signs are put up to discourage use of the canteen by persons who are not lawyers. One of the signboards requests law students (interns) to refrain from using the canteen. Another sign directs clerks to not use the canteen. Clerks, of course, are an older, but poorer, demographic group than interns. They are more powerless than even interns, since they are unlikely to be the children of powerful people: hence, they can be directed. Interns are requested because they have the privilege of a better education, the likelihood of affluence and the prospect of a more rewarding future. Even the Indian tradition of respecting our elders, does not protect our clerks from this demonstration of power. This is one of the most easy-to-spot markers of power: people who wield power often act as if they do not require to be civil towards those who do not.

As a young lawyer, you will encounter this precise lack of civility in many different ways. At its worst, you will face abusive, indecent or intemperate language used by some senior lawyers, judges, clients and bureaucratic staff who have power over you. I have heard of one senior advocate, a supposedly liberal, human rights hero today, physically hitting his junior in a fit of apoplectic rage. I have seen junior lawyers being growled at menacingly for stepping out of courtroom for a minute to take an important personal call. Incidents like these are a dime-a-dozen. My friends at law firms assure me that the situation is no different there. These forms of abuse of power are brazen and gross and therefore easy to spot. When you encounter such behaviour, you need to remember only this: nothing, absolutely nothing, excuses such behaviour. In such situations, look for the quickest exit, if you can find one. If you have no choice in enduring such abuse, do so in the firm knowledge that you are in the right and dismiss the incident from your mind forthwith. Do not let anybody tell you otherwise. One of the other markers of power, is that its abuse makes people who don't have it question themselves, even when they have done nothing wrong.

Other forms of abuse of power are subtler and harder to recognize. Therefore, they are more dangerous. These forms of abuse may again be perpetrated by various actors like senior lawyers, partners at law firms, clients, registry staff, etc. Some of these persons have likely become very skilled at abusing power. So skilled, in fact, that we may not even recognize the abuse for what it is until it is too late. We must hence train ourselves to anticipate such situations, or at least to recognize them quickly once we encounter them.

A word of clarification is perhaps important here. Social, institutional and professional arrangements inevitably structure themselves in ways that give some people power over the other. Not all those who wield power necessarily abuse it. Not all exercise of power is bad. What we need to watch out for, are abuses of power. Here are some markers of abuse of power that I have learnt to spot in the profession, and these may help one get an idea of what I am talking about. These are typical "power-plays' that you are likely to encounter as a young lawyer:

  • Persons who abuse power will often make you wait for no good reason. Simply because they can, and they would like you to know this. This is the most fascinating thing about power. People who abuse power act as if they are exempt from the basic courtesy of punctuality and valuing another's time. They would like you to believe that their time is more important than yours.
  • Persons who abuse power will also often hurry you, needlessly, in professional conversation. They will cut you off mid-sentence, speak over you and refuse you usual points-of-entry into conversation. They will raise their voice but take offence if you do too. They will be first aggressor for no good reason and will not find a need to apologize for it.
  • Persons who abuse power will try to limit information flows to and from you and exclude you from channels of professional communication. Again, simply because they can. In some cases, this exclusion from professional communication channels could have serious impacts on one's reputation, because one has not taken necessary action on account of lack of adequate knowledge.
  • In a profession that values seniority greatly, one of the most cliched power-plays is someone pointing out to you the number of years of experience they have. If you face this in a hostile conversation, recognize it for what it is: a power-play.
  • Persons who abuse power will deride your work in the presence of others but rely upon it in private.

Every person who wields power is bound to be surrounded by two groups of people: those who are craven to them and those who are enamoured of them. The craven lot quake in the face of power, seek to appease the powerful and submit to abuse, in the hope that their proximity to those in power will vicariously give them lesser power of their own, over others. The craven, then, are impolitely known as the kiss-up-kick-down variety. The enamoured lot, on the other hand, have genuine admiration for those who wield power and therefore look the other way or provide excuses for any abuses of power. For instance, I have heard of abusive senior lawyers being described with adjectives such as mercurial, flamboyant, genius etc. These flowery words dress up abusive traits that are plain for the unenamoured to see.

To be sure, being craven is a tried and tested way of navigating power. However, this comes at the great cost of loss of personal autonomy, liberty and self-esteem. For me and for most people, this is too great a cost to pay. So, we must look for other ways of navigating power that do not have such costs associated with them.

But before we do this, it is important to know what immediate effect a power-play can have on us. Being subjected to an abuse of power is likely to leave us disoriented, anxious, weakened and prone to act in ill-thought out ways. If the abuse of power is severe, it may leave us depressed and demoralized. The immediate challenge in such a situation is to find a way to exit it, with minimal possible damage done to oneself. Any retaliatory strategy must be conceived of and executed from a place of relative safety and at an opportune time. The key word here is "strategy". To successfully neutralize abuses of power, one needs to act strategically. To be able to act strategically, one must first be able to think clearly and calmly. So, the first thing we need to do, is buy time and space to gather oneself together.

Once we have managed to exit the site of abuse and calm ourselves, we must gather what information we can manage that could be of use to us to counter such abuse. This could be information on the abuser (Has he done this to others before? Is he always like this? What is he scared of? What can I use against him to get him to back off?), it could be information about available institutional support structures (Can I speak to someone who can help me deal with this?) or it could be other forms of useful information.

These first two stages of flight from immediate risk and information gathering are often crucial. They could make all the difference in designing a winning strategy. Now, a quick look at some possible strategies.

One way to deal with persons who abuse power is to acquire power over them. Fighting fire with fire, so to speak. Sometimes this is necessary but is often best kept as a last resort. Simply because a person starts off more powerful than you, he need not remain so forever. Each one of us can acquire our own power over time, through a variety of different strategies. One way of cultivating your own power as a junior lawyer, is to make allies who have power. You make allies by standing up for others when they need your help. If you want people in your corner for a fight, you need be in theirs. The point here though, is not that you should get into a fight. It is simply knowing that if you get into a fight, you have someone in your corner. Merely that knowledge will give you a sense of confidence in dealing with situations of imbalance in power well.

There are other ways to navigate power successfully which do not require a street fight. One way is to simply avoid confrontation, if this can be done with no substantial disadvantage. As the saying goes, discretion is the better part of valour. Another strategy could be to stand one's ground, but doing so after an initial strategic retreat that allows us to assess whether this is the best course of action to take. With experience, one will learn that there are a whole host of other strategies that one can adopt too neutralize abuses of power.

As advocates, one arena where we must navigate power very carefully is communication. In any conversation, there are several markers of power. Who speaks without permission? Who waits for permission to speak? Who speaks first? Who speaks loudest? Who speaks firmly? Who feels the need to apologise for speaking? Pay attention to these markers, learn your way around them and understand what communication strategies you are most comfortable with. For instance, some of us prefer to communicate in writing. If you are someone like that, play to your strength and push for written communication where you can manage it. Think about how one can retain power and cede it in communication. This is important.

A special mention here on abuse of power by judges. We look up to judges for guidance and inspiration. However, they are human, and all humans invested with power could potentially get swayed by the power they hold. When faced with a judge who is acting unreasonably or treating us with derision because we are junior lawyer, we must try not to lose our cool and instead work towards disarming the judge. Even the most hostile judge cannot for long ignore a smiling face, a soothing demeanour and pleasant words. We may sometimes lose the day, but we will likely often win the war, with consistent, gentle, polite advocacy. Humour, if used appropriately at a tense moment, could potentially work wonders.

A basic requirement of all strategies to counter abuses of power is to cultivate one's own strength. We often use the term "power" and "strength" interchangeably, but they are not the same thing. It is entirely possible for weak people to be invested with power and for strong people to have none. For instance, we may speak of a weak Prime Minister who has power but lacks strength. Or we may speak of persons with strong character who command respect, despite holding no formal power. To withstand and neutralize abuses of power, one needs to cultivate strength. Of course, each specific form of abuse of power would likely require some specific strengths to neutralize it, but a generic underlying strength of character can come to our aid in a variety of situations.

One source of strength is our allies, which I have discussed above. But there are several other sources we can draw strength from. These include family, close friends and senior mentors in the profession. For me, an immense source of strength has been my reading habit. In books, I have found both sanctuary and inspiration. I will end with three quotes from books, that have given me tools and courage to fight abuses of power.

The first is by science fiction author Neil Gaiman who tells us about the importance of retreat into sanctuary when faced with difficult situations:

"If you were trapped in an impossible situation, in an unpleasant place, with people who meant you ill, and someone offered you a temporary escape, why wouldn't you take it? And escapist fiction is just that: fiction that opens a door, shows the sunlight outside, gives you a place to go where you are in control, are with people you want to be with (and books are real places, make no mistake about that); and more importantly, during your escape, books can also give you knowledge about the world and your predicament, give you weapons, give you armour: real things you can take back into your prison. Skills and knowledge and tools you can use to escape for real. As J. R. R. Tolkien reminded us, the only people who inveigh against escape are jailers."

The second, is by Edwin Markham, who tells us of the importance of preparation and of striking back at the most opportune moment:

"For all your days be prepared
And meet them ever alike.
When you are the anvil, bear -
When you are the hammer, strike!"

The last is by the inimitable Nelson Mandela, who tells us this:

"I learned that courage was not the absence of fear, but the triumph over it. The brave man is not he who does not feel afraid, but he who conquers that fear."

So the next time someone tries to bully you because you are young lawyer, I hope you feel that you are not powerless in fighting back.

(Goutham Shivshankar is an Advocate on Record at the Supreme Court. He may be reached at [email protected] He tweets @gousgame).

Also from the same author :

Finding Mentorship In The Legal Profession

Learning Advocacy : Things Learnt After 11 Years At Bar





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