Recognising and seizing opportunities in a timely way is integral to litigation strategy, write Sneha Jaisingh and Shreya Gupta
Litigation is like making hamburger mince, its messy and its bloody. The plaintiff asserting his/her rights and the defendant resisting the claim each feel the pain, both emotional and financial. The primary responsibility of the litigating attorney is to devise a strategy that will achieve the optimal result for the client while causing the least pain. There can be no universal strategy since each case is unique, but there are pointers for a good litigator to follow.
The foremost is to understand the clients and their needs. In commercial litigation one seldom comes across an individual client, but the important thing to remember is that a corporate entity is represented by and speaks through individuals.
The litigator must understand the individuals with whom he/she interfaces, what drives those individuals, what end game is sought to be achieved, what resources are available to achieve the end game, and, most importantly, what are the weaknesses and strengths of the individuals involved. A seemingly strong case may be lost because of weak witnesses, but a seemingly weak case can be won if the evidence is strong. The litigator must be capable enough to get into the mind of his/her client and work with that mind.
Strategy often precedes the actual commencement of litigation. Strategy must be preventive and aimed to avoid litigation. If litigation is inevitable, then the strategy must be tailored to reduce the risks. It is, therefore, essential to identify the potential pain points of the client and the opponent as early as possible. Once identified, the efforts must be to shield the client’s pain points and strike strongly where the opponent will hurt the most.
Timeliness is of the essence. However well-crafted the strategy, it will fail unless there is a conscious and continuing effort to keep the opponent off balance. This is equally applicable whether the client be the plaintiff or the defendant, subject to one exception. It does happen sometimes that the defendant is unprepared for the onslaught, and is besieged. In that situation the litigator (for the defendant) must be prepared to hunker down and conserve resources until the time is right. While this is logical, it is capable of annoying the client who wants to lash back. At that point of time the litigator must fight on two fronts – primarily the opponent, and secondarily the client by explaining the need to lie low.
Recognising and seizing opportunities in a timely way is also an integral part of litigation strategy. A litigation need not always be fought till the bitter end. Often enough, a window of opportunity may open to settle. That may require nimble footwork, but the strategy must adapt to make the most of the opportunity.
While doing so, the litigator must remain conscious that protracted settlement negotiations take away pressures from the opponent and that in itself may shut the window of opportunity. In practice, it is not unusual for teams to split; while one team is negotiating, the other team is continuing the litigation unless of course a standstill has been agreed.
Equally, a well thought out strategy cannot remain constant or immutable. There are invariably a number of moving paths, and litigation evolves over time as facts and nuances, including finer points of law, emerge or become clearer. Strategy must evolve as litigation is never a set-piece battle.
Strategy involves putting the best foot forward. That, in turn, comprises presenting facts in the best possible light, building up credibility for the client and the witnesses, and gaining the sympathy of the court. This is not to suggest that courts decide on sympathy and not according to law. The fact, however, is that the judge is human, and sympathy plays a large part in being human. If the litigator gains the court’s sympathy, the odds in favour of his client may improve. The judge will not bend the law out of sympathy, but a judge may be persuaded out of sympathy to construe facts in a more favourable light or exercise powers based on equitable considerations within the constraints of law.
In this context, it is important to “know” the judge. Is the judge pedantic? Is he/she a stickler for the letter of the law, or does he/she have a robust understanding of the law and applies that to a given fact situation? Has he/she ruled on a similar point earlier, and if so, how?
It is always more helpful and persuasive to cite before the judge his/her own ruling on a given point, rather than rulings of other judges. If the judge has ruled on a point of law and his/her views have found favour with a superior court, that is also helpful. If the judge has ruled earlier on a similar, but not identical, point, how can the earlier ruling be distinguished? Is the judge prone to making up his/her mind at an early stage, and reluctant to change that initial view? If so, how can he/she be persuaded to change that initial view? Knowing the court is as important as knowing one’s client.
The human element equally applies to the opposing counsel. All counsel are officers of the court and should, but do not always, look for the truth. Counsel are of varying shades; some are exemplary of their honourable profession, and some are not. Even the most exemplary counsel has human susceptibilities. A bit of flattery, or some hard blows that bruise the ego of the opposing counsel may help your client’s end game. These are not tactical matters. They are essential to legal strategy. Know your opposing counsel, earn his/her trust and respect. However hard fought a litigation, it pays to earn the respect of your opposing counsel so that unwritten rules or understanding are reached, reducing the resulting pain to the two sets of clients.
Every counsel attorney has his own style – some thrive on details buried under a pile of paperwork, whereas others may look at the broader picture. Some are loquacious, others are terse. Some are highly focused; some may tend to get distracted. The best prepared counsel may lose sight of things if sufficiently distracted. It is therefore important to choose the right arguing counsel to advocate your client’s case. For instance, in document heavy cases, arguing counsel who pays attention to detail and is able to dedicate the time required is essential. Similarly, in a witness action, cross-examination skills, which are not as readily available as is commonly believed, are crucial.
In India litigation is long drawn out and often enough winds its way to the Supreme Court. Therefore, it is important to have the end game in sight, and litigation strategies in place, to succeed in a timely, cost-effective way. While no straightjacket formula exists, there are certain common considerations that litigators must keep in mind.
First, it is important to decide which forum to approach. The choice of forum, subject to agreement, would lie between where the cause of action accrued and where the defendant ordinarily resides. It is generally advantageous for the plaintiff to litigate on his home turf rather than on the defendant’s. Whether there is a remedy other than a civil suit is also a relevant consideration. In corporate/shareholder’s disputes an approach to the National Company Law Tribunal may be preferable if the issue can be brought within the tribunal’s jurisdiction. In cases of professional negligence, the fora under the Consumer Protection Act may be quicker and more cost-effective than civil courts.
Jurisdiction is equally important for the defendant. Would a plea of forum non conveniens (a discretionary power that allows courts to dismiss a case when another court is much better suited to hear the case) be effective? If it’s a plausible plea, then even if it does not finally succeed, it can slow down the process and bring the plaintiff to the negotiating table. A plea of limitation or inchoate cause of action may also be worth consideration in a given fact situation.
Since the final outcome would ordinarily be distant, is it possible for the plaintiff to apply for some interim relief? If it is, then more often than not, interim relief may prove to be as effective as the final outcome, and bring closure to the disputes.
The Code of Civil Procedure, 1908, also contains a number of effective tools, if meaningfully used. Well thought out applications for particulars would refine issues and reduce evidence. Similarly, interrogatories may secure admissions and reduce the evidentiary burden. Notice to admit facts may also reduce the evidentiary burden. An application for disclosure may flush out relevant documents that the opponent may have attempted to keep away. Unfortunately, these effective tools are often neglected in practice.
The norm now is to take evidence of witnesses on affidavit, not orally. While affidavit evidence reduces time, it instils a sense of false confidence. Cross-examination is therefore all the more important. Witnesses need to be prepared, always within the bounds of professional ethics, to withstand cross-examination.
All of the above are helpful guides. Properly used and with a bit of luck, right will prevail.
Sneha Jaisingh and Shreya Gupta are managing associates at Bharucha & Partners.