In an insightful and engrossing session, Akhil Sibal, Senior Advocate of Supreme Court, discussed his approach towards dealing with case briefs and structuring arguments in court.
He was talking at a webinar organized by R&R Law Chambers on the topic 'Mastering Briefs & Structuring Arguments'. The session lasting for almost one and half hours was moderated by Rohan Batra and Reena Choudhary, Partners at R&R Law Chambers.
Key takeaways from the session :
While clarifying that he has no straight-jacket formula when it comes to structuring arguments, he said that he followed a general pattern with respect to structuring arguments in court.
If there are preliminary objections, they would be raised at the beginning itself. As regards merits, the attempt would be to put across the best points as quickly as possible, and avoid detailed narration of facts.
"My starting point is not to start with the facts. I don't want the judge to get impatient wondering what the argument is. The sooner the judge knows what the argument is, the sooner she can start thinking about it. Then the facts as you place them will have a context. De hors the argument, the judge cannot appreciate why you are focusing on certain facts and not others. So I try to make the point at the outset and the detailing should come after", he said about his approach in higher courts..
This approach, he said, makes the arguments more cohesive.
Make the point, show the relevant facts, and support it with the relevant law - he described his pattern.
Think in terms of propositions of fact and law
He said that it was important to think in terms of "propositions of facts and law".
"Fact is a statement of what happened. Proposition of fact is a factual inference that you wish to derive from the fact; it is the point you wish to make with respect to a fact. It is a fact bundled with an argument", he explained.
Stating propositions of facts is more effective in getting the point across, than mere narration of facts.
He said that his preferred style was to get the judge thinking immediately. Start with points that will grab the judge's interest.
"You will have to pique interest. You need a big picture beginning. A trailer to captivate the attention of the judge. Remember, the judge might have also read the brief and might have come with pre-conceived notions. So, you need to think of something that will appeal to the judicial mind and judicial conscience. For that, you need to think from the shoes of the judge", he said.
He added that it was not his personal style to make an overly dramatic beginning, but a focused and pointed one.
"Some lawyers are theatrical. That can also yield results. It is a matter of personal style", he said.
Need to know opposite side's argument.
It is important to know the opposite side's argument. One should try to build their argument to the hilt and demolish it.
One must also think out of the box with respect to the opposite side's arguments, without getting confined by what is stated in their brief or pleadings. This will avoid situations of you being caught unawares by an out of box argument raised by them in court..
"You must test the strength of your argument based on your independent thought, having built up the opposite side's case as if you have accepted their case", he said.
Sibal also explained that he factors in who the opposing counsel is while readying his arguments in court.
"I will be conscious about who are appearing at the opposite side. Over time, you will understand the lawyers, what tricks they have up their sleeves, what style they follow, how well prepared are they with their briefs etc. You play to your strength and their weaknesses", he said.
The idea is to make your experience in court as predictable as possible.
Don't combine good arguments with bad arguments
If you combine good arguments with bad arguments, it can reduce the overall credibility of your case.
The way the mind works, and the way the judge absorbs the case, is based on the overall impact of the arguments. If you sneak in terrible arguments with good arguments, the judge starts to doubt your better points which you argued with greater conviction.
Focus on winnable arguments, be selective, as time is limited.
He added that if the case is generally weak on merits, and the strongest point is also not that appealing, he might use a combination of weaker arguments, hoping any of it might strike.
He also highlighted the importance of knowing the court room personality of the judge. Certain aspects matter more before certain judges. Some judges have certain intellectual and policy leanings. You can't have a one size fix all approach before everyone.
Need to be flexible also
If the argument which you thought was convincing is not working with the judge, don't flog it beyond a point.
As a counsel you need to have flexibility, and you need to think quickly on your feet, to dial back and course correct and abandon that argument, instead of just drilling at it.
Otherwise, you will end up derailing the case and getting nowhere, he cautioned.
At times like that, you have to re-calibrate, and shift gears, and fall back on another argument, which you may have thought as weak.
Mastering the brief
Sibal also extensively spoke about his methodical and clinical approach towards studying the briefs.
He said that he never goes to the court without thoroughly reading the briefs himself.
"To go to court, merely on the basis of a note that your junior has prepared overnight, telling you what the case is about, without having read some part of the pleadings is a very risky proposition. I would not recommend it , even if it means waking up in the wee hours to read parts of it", he said.
Read impugned judgment first in the appellate side
He said that he followed the pattern of reading the pleadings when it comes to cases in the original side. That will help one understand the foundation of the case.
When it comes to appellate side cases, he reads the impugned judgment first.
"In an appeal you cannot avoid reading the impugned judgment line by line", he said.
"I will go straight to impugned judgment and will try to remain as unencumbered as possible from the brief. I will try to formulate my own thoughts, without the weight of how the appellant has cast the appeal. With a critical eye, I think for myself, how convincing does this logic (of the judgment) sound. I look for any logical missteps, lacuna..
Based on that, I go to the materials that the judgment relies on, to see if my first instincts about the weaknesses about the judgment are good, and i will refine my thoughts accordingly.
Then i go to the grounds of appeal, and formulate my final and most refined version of arguments, which remains a work in progress", he explained the process.
Read the brief cover to cover, especially during the early days of profession.
He stressed on the importance of developing the habit of reading the briefs thoroughly, cover to cover, during the early days of the profession.
"In the early years, I would make it a point to read the brief line to line, cover to cover. It requires a lot of hard work and commitment, but I would recommend doing that. If you have read everything, you are ahead of the game. Then it is possible for you to spot less obvious points, obscure points, which may have skipped others notice, and which may turn out to be critical.
This can make you come up with new, original points.
In the course of hearing, there will be factual questions from court. The other sides may also make factual reference. It is not possible for you to anticipate all these. If you have foundation of readings, as and when unanticipated questions arise, you can answer in a manner no body else can. If you are prepared with a truncated version of the file, with a note prepared by somebody else, you will be guided by someone else's thinking, and you may get caught on the wrong footing,
This may not be always practical and feasible all times as your workload increases and you progress in your career. You may have to be selective and prioritize. But by the time you will also have become better in what to look for and able to skim", he said.
This ability to spot the relevant facts through skimmed reading is developed only by continuous reading of briefs thoroughly, he stressed.
"If you start skimming and skipping at the very beginning of your career, then you develop the bad habit and you are not able to sift and differentiate between what's important and what's not important."
He also made a pertinent comment about Indian style of pleadings :
"Our Indian style of pleading in repetitive. We don't favour lean, precise, focused pleadings. So, unfortunately, we are burdened with very very lengthy and unwieldy pleadings. But over time you do figure out what the different moving parts are and you can go starightaway to those ..and absorb them quicker. "
Read the briefs actively, with a critical eye
Sibal also discussed the technique of "active reading".
Drawing a comparison with watching a movie, to explain this "abstract concept", he said that while watching a movie, we are passive, in the sense we have completely surrendered ourselves to the movie, and are absorbed in its emotions and happenings. You start 'actively' watching the movie, when you reflect about it afterwards, analyzing its characters and themes, and discussing it with others.
He said that a similar 'active' approach was necessary while reading briefs.
"When you read the brief, you must not be passive. You must be thinking as you go along. You should think what all legal issues may arise as you read the brief.
You must develop a critical angle, a prism. This will train your brain to ask precisely the right question, and become lazor sharp and have an eagle's eye to spot the crucial aspects.
Facts and issues will jump out at you and settle in your mind when your are reading the brief with a critical angle. It will become a memory trigger for recalling the relevant fact.
It teaches you to be fiercely independent.
If you are passive in reading, your brain will feel more resistance to think independently, and you feel encumbered with someone else's perspective".
He said that when you are looking at the document, you should be actually looking for something.
"You should be looking for something in the documents, something in your favour or something against you. tt will allow you to absorb and recognize the relevant fact. You must have an active engagement with what you are reading.
"Best way to think independently is to re-consider the case yourself from the beginning, uninfluenced by the brief. The more you do it more you will be able to think out of box.
Train your mind to act instinctively to think independently", he said.
Parting advice to youngsters
Sibal said that during his initial years, he used to spend a lot of time studying briefs and observing court proceedings.
"There is no substitute for hard work. You need courage, you need perseverance. There will be many disappointments. But there is a lot of meaningful and fulfilling work you can do if you stay the course", he said.
He also advised that one should not be overly dependent on other's views and advises, even though they are said with the best intentions in mind.
"You need to take charge and think independently.
You need to ask yourself whether it sounds right, and go with your gut and trust your instict. You might get it wrong. But gradually you will develop the right instict.If you simply follow other's advises, you will never learn for yourselves", he said.
Also, one should be careful about one's reputation and credibility with the court.
Watch the entire session here :