Continuing from the First Part:
In this post we talk about a number of things, primarily about understanding the theme of a problem so as to be able to speak well; as to why every lawyer is a salesman, and lastly about a Lawyers moral responsibilities towards the Court.
We top it off with a small lesson in Court Room manners and with a Jessup video and exceptional interview of Mr. Harish N. Salve, in the Resource section.
1. Understanding the theme of a Problem: Every Problem has a central theme, and all other activities and occurrences within the problem happen in an around this theme and the problem is to be read in conjunction to this theme.
E.g. There are two countries A & B. A is an oil rich country while B is a super power who wants the oil for its energy requirements. A denies supplying the Oil to B, and B intervenes in A, such military intervention ultimately leading to the death of a number of civilians.
Further B places a complete trade embargo on B.
B goes to the ICJ, issues being wrongful Military intervention, resultant civilian deaths and a wrongful trade embargo.
Will you call this a International Humanitarian Law problem?
I would call it an International Trade problem, since it was the need for Oil which started the slew of events.
The point being: Once you have understood the theme, all your ideas, and arguments should be formed keeping in mind the same, or circling around the same. No one wants to hear a number of disassociated pieces of Legal information and arguments with a handful of judgements and authorities from here and there. What Judges want is a story; and they want to see how this story pans out, your clients role in the same, and how the assertions made by you seem to correctly fill in the missing pieces in the story.
E.g. Keeping in mind the above mentioned Problem there can be the following arguments:
(i) Military Intervention is prohibited by International Law and how Country B intervened in A to claim its oil and as a result killed civilians.
(ii) Nations have sovereignty over their natural resources.
(iii) Trade Restrictions are forbidden under certain circumstances.
All arguments are directed towards a central theme: Oil.
Notice how there is a connection between all the assertions that are made. Unless and until there is a theme running through the entire series of arguments, it will not make sense to the Judges, and neither will it portray the big picture.
For those of you who have studied mathematics, think of the problem in its entirety as a Set and all occurrences within it as Sub-Sets.
It is this story that you have to sell; the idea. And the best Lawyers are always the best salesmen. (keep reading to know why!)
2. Why say agreed: (Read the previous post to understand the difference between obliged and agreed) My father is the best salesman I have known till date. He once told me something that I hold true to this day.
“The customer is never wrong”, he said.
Salesmen sell physical products. Advocates sell ideas.
At a fundamental level, every Advocate is selling an idea. The difference between a Salesman and a Lawyer is that a Lawyers idea has to be in consonance with the governing Law, and it is helpful if such idea is acceptable to both parties in the dispute.
This assertion is something I personally keep in mind when trying to convince a Judge.
The Judge may be making the most outrageous assertion, but yet, they cannot be wrong.
In case you are “bold” enough to point out on their face that they are wrong either on Law or fact and the Judge takes the same as contempt (which seven out of ten times he /she will) there would be no way to curb the irreparable damage you would have done in terms of your scoring in that round ( A more real world example being: not getting a favorable judgement for your client).
Remember, a Judge, even in real life circumstances, can be proven wrong or over-ruled, but only at a at later stage. They cannot be wrong at that particular moment. And by the time they are proven wrong, your client has lost something very essential, which is his / her valuable time and you have lost something more essential – Your Round.
So it is always in your interest to make the Judge align his or her views with you, and never to go into a face off.
How to disagree while agreeing: As the readers will remember from the last post, I had mentioned that you never overtly state that you disagree with the Court. You agree most respectfully, and then say, “Agreed your Lordship, however the Counsel would like to point out that………” and state the solution that you find to be more preferable.
A good salesman never disagrees with his/her client. If the client says that Kashmir is a desert you are supposed to agree most vehemently with them, and then sell them mineral water saying that you would need the same in a desert.
“You cannot say ‘no’ to the people…..That’s the secret. And then when you do, it has to sound like a ‘yes’…….
The Godfather, Mario Puzo
Use the Godfather theory. Say no; just that it should sound like a yes. Say you agree, just push the Judge to your point through while they think you are in agreement with theirs.
Secondly, always think like a salesman. Keep in mind (i) What would sound appealing to the Judge (ii) What would be a solution that would not / cannot be directly rejected by the Opposition (iii) How would you reach the golden mean where you can have your needs fulfilled, while the Opposition remains unscathed.
Remember, it is not your job to annihilate the Opposition. It is your job to get for your client whatever you have asked for in the Prayer.
3. The Moral Code: The strict Moral Code which every Mooter should follow while appearing before a Court includes:
(i) Treat a Mock Trial as if it were a real Trial. Respect the Judge as if he/she were a real Judge (even if they are your peers).
(ii) Never state the wrong Law knowingly.
(iii) Never hide from the Court any substantive Law regarding a particular point in dispute: Always formulate your arguments keeping in mind the Law in its entirety. Just because a certain Law point goes against you, does not mean that it is non-existent or that the Court would be unaware about it. This is how rounds are lost. By providing half baked solutions. Your arguments should fulfill all conditions as have been laid down by the current Law in force, at least it should be able to satisfy the queries that you yourself have raised as opposition. Never draft or argue thinking that the opposition can be undermined. Maybe the Opposition will not be aware of that one rare argument that is enough to raze your case to the ground; yet nine out of ten times, the Bench will be.
(iv) Never mislead the Court: Your Commercial obligations lie first and foremost to your clients, however you professional ones lie in guiding the Court in the correct direction.
A lot of people think of the above as an obligation to state the morally correct version of the truth. The fourth golden mean that I follow is
(iv) Your client is not guilty, however horrific the charges on him / her might be: If you decide in your head that your client is guilty, you are becoming the Judge and the Jury.
Always believe in your clients case. Unless You, the primary counsel, do not have faith in the accused, no one else will.
So remember, before the Court has reached judgement, everything, every fact, and every Law is open too debate and dispute. If you are in the Supreme Court, hell the Law itself might be in dispute. What is Law, other than a few socially acceptable norms. What if the society is wrong and your client is correct ! So every time you fight a case, think of it as a landmark.
4. Being calm and composed: Out of the certain things which are not advisable to be done in a Moot Court, one is to directly attack either the Court or your Opposition.
I think I have explained enough as to why the first one is not advisable: They are sitting in Judgement over you, and not the other way round. The second one entails not bursting out on your Opposition personally.
Rather make a personal attempt on their Clients, the previous activities of the clients of the Opposition and try to portray before the Court how giving a Judgement in their favor would be the end of the world as we know it.
On theatrics: Some amount of theatrics is allowed in Indian Moots, even appreciated or is necessary. In Foreign Moots Speakers are completely unemotional, and that approach adds more poise to their speaking and adds grace to their knowledge of Law.
Sometimes foreign Judges do like passion; but it has to be a vary calculated risk, and it better be after you know the Law very very well. Otherwise it will be termed hysteria.
Watch the video below from the Philip C. Jessup Cup – World Rounds, 2011 and note how composed and dispassionate the Speaker is.
It is not like he does not believe in his clients case; he does, and it is evident, But he wont burst out or even be aggressive because he has a case, or because of his opponents lack of a case.
He will be calm and let the cold sterile Law do the job for him.
The best marker of his calmness are his hands. While Indian Mooter’s do a complex pattern of dance with their hands, you will never find the hands of Foreign Speakers raised beyond their chest.
Hands can be used beautifully while making an argument. Statesmen use it to add gravity, poise and solidarity. They can be used to signify a break in arguments; to stress on particular points and to signify a departure from a particular, point, issue or approach.
This much for this week. The two posts should give a fairly good idea about speaking in moots to any Mooter. We will return to this topic again, while next week we delve on the topic “Working for a Moot”.
Resource: A brilliant interview of Mr. Harish Salve by mylaw.net where Mr. Salve talks about the qualities of Nani Palhiwala, the greatest of Indian Advocates.
The points that Mr. Salve mentions about Palkhiwala are quite remarkable and should be noted as the ideal while preparing for any form of advocacy, They are (i) Capacity of analysis of an advocate (ii) Forensic skills (iii) the power of expression (iv) the power of rhetoric. Any advocate who is a master of the above is a master of the Art.
The Great Indian Mooting Blog 