The services of an experienced advocate may be critical to making it through the Indian court system. But what should you know when choosing the best senior counsel to stand by your side?
Last year was a good one for litigation lawyers in the Mumbai and Delhi high courts. The Bombay court designated 15 senior advocates in September 2011, while in Delhi the court bestowed the same honour on nine lawyers in January 2011 and eight more in July – record highs for both courts.
But some observers don’t see this as a sign that greater numbers of advocates are achieving a superior standard.
“Earlier advocates who were ‘senior material’ were invited to apply, but now that’s hardly followed … one goes ahead and applies,” remarks Sumeet Kachwaha, a dispute resolution expert and managing partner at Kachwaha & Partners.
Amar Gupta, a Delhi-based partner at J Sagar Associates who chairs the firm’s dispute resolution practice, suggests that conventional values such as “competence, eminence and standing have taken a beating” in the process of some courts designating senior advocates.
Currently, Bombay High Court has over 100 senior advocates and Delhi High Court has 191.
Recognition of ability
While the Indian legal system does not differentiate between barristers and solicitors, the Advocates Act, 1961, distinguishes between “two classes of advocates”: senior advocates and other advocates.
Senior advocates are designated as such by a high court or the Supreme Court, in recognition of their superior ability and standing at the bar. Members of this “specialist class of arguing lawyers”, as one lawyer put it, have 20 years’ experience in the Supreme Court, 10 years in a high court, or specialist knowledge or experience of the law.
Bar Council of India rules prohibit senior advocates from accepting briefs directly from a client and as a result they deal only with lawyers who instruct them. In addition, the rules prohibit them from taking on any drafting or conveyancing work.
Sought when stakes are high
Despite concerns about the well-being of the system, senior advocates are often sought after by clients, particularly those who are caught up in litigation where the stakes are especially high.
“We recommend that we get the input of a senior advocate in high-stakes litigation as they can provide input on the merits of the matter and also assist and guide us on strategy,” says Ameet Datta, a partner at Luthra & Luthra.
Datta, whose area of expertise is intellectual property litigation, adds that the services of a senior advocate are invaluable, particularly “if the judge you are before has a certain proclivity for a certain line of thinking” and if the senior advocate in question does well in that court.
Vivek Vashi, a partner in the litigation practice at Bharucha & Partners, points out that senior advocates are afforded a certain “indulgence” by the court that becomes critical in high-stakes matters.
“No one wants to take a chance in high-stakes matters,” says Vashi.
Gupta at J Sagar Associates also comments on the presence that a senior counsel commands. “Some courts are more receptive and patient to senior advocates than to somebody who doesn’t have a face or a name,” he says.
Others stress the role of senior counsel in complex matters which require careful and persuasive argument.
“We need senior counsel … to persuade a court on a point of law which is not very settled or where there are conflicting judgments between different high courts,” says Chakrapani Misra, a litigation partner at Khaitan & Co.
The need for an advocate with superior persuasive powers is especially critical as written briefs carry little weight in the courts in India.
“Senior advocates have a special place in our system because of the emphasis on oral arguments,” says Kachwaha, who notes that India differs in this respect from several other jurisdictions, including the US, where written briefs are the norm. In addition, Indian judges routinely interject with questions for the advocates arguing the case.
On a more practical level, a high-profile senior advocate can help if a client needs to get past the large numbers of litigants that wait outside India’s crowded courts. As Datta at Luthra & Luthra says: “The reality is that sometimes a senior advocate can get hearings that other advocates may not be afforded by the judge.”
The decision to hire a senior advocate may also be part of a client’s strategy to avoid blame in case of an adverse ruling.
“Company executives answer eventually to their board of directors and they need to be able to say that they did everything in their power to obtain a favourable ruling,” says a seasoned litigator.
Making the right choice
Given the large numbers of senior advocates, and the range of their abilities, zeroing in on the right advocate can be a challenge.
Lawyers agree that the most valuable senior advocates to have on your side are those who have been senior advocates for at least 20 years. Those with five to 15 years experience as can be just as useful, while senior advocates with less than five years have less of a fan-following.
But, as Vashi at Bharucha & Partners says, the harsh reality is that clients may want “top-rung seniors for every matter but may not be able to afford their fees”. Senior advocates at this level may charge anything from ₹300,000 (US$5,400) for a single appearance in court.
As litigation in India can be long drawn out, if a client’s ability to bear costs over a long period is in question, it may be best to begin by engaging a newly designated senior advocate.
Kachwaha points out that in arbitrations, “one does not need a senior at all”. He believes that using the services of a senior advocate “may be justified where discretionary relief is involved but in regular hearings they do not generally have a role and for budgetary reasons it may be impractical to have them”.
In addition as Indian courts suffer from poor case management Kachwaha says that “it may be futile to land up with an expensive senior advocate every time, as you do not know when your case will come up or when it is taken up in right earnest”.
Going it alone
Kachwaha is of the opinion that clients are better served if law firms and lawyers argue a majority of their cases and so develop their own in-house expertise.
Complex patent litigation appears to be an area where lawyers could benefit from arguing their own cases.
Rajeshwari of Rajeshwari & Associates, a Gurgaon-based intellectual property firm, believes that it is particularly difficult to bring a senior advocate up to speed on the specifics of a patent case “that you have been soaking yourself in”.
“There is an inevitable loss of data while the matter is being transmitted in the course of a one or two-hour briefing meeting,” says Rajeshwari, who recently argued her own case to obtain India’s first compulsory licence for a pharmaceutical manufacturer. The party she was opposing had used the services of a senior advocate.
However, Rajeshwari also believes that senior advocates bring a lot of experience and are “very helpful” if a case is complicated or in high-stakes litigation.
Other Indian lawyers are similarly ambivalent about the value added by a senior advocate.
Gupta at J Sagar Associates says that “25% of senior advocates do add value and do bring tremendous advantages with them”. But he adds: “Based on my experience, there are three serious issues that one faces while briefing senior counsel: erratic fee structure, lack of commitment, and intellectual arrogance.”
Gupta explains that it is not often that “one comes across a senior counsel who is open to imbibing new concepts and perspectives, and is also sensitive to business realities and concerns … as professionals we must recognize that we live in a very complex world, and learning is a continuous process”.
A common problem is that senior advocates are overstretched and may not give a case adequate attention.
“Sometimes a senior advocate may have taken up so many matters that he may not be able to be physically present for the matter,” says Misra at Khaitan & Co, who points out this “creates a very awkward situation for both the client and the counsel”.
As a result, using the services of a senior counsel effectively can be a challenge. As Gupta says, “in some cases, working with senior advocates can be a demanding process and requires a lot of patience and perseverance”.
While the answer may be for more lawyers to argue their own cases, Vashi at Bharucha & Partners believes that “a senior advocate provides ‘extra icing’, which is very useful and one cannot take away from that”.
Market for advice
The demand for these more seasoned and experienced advocates may be clear but will clients with deep pockets continue to keep them in business? While some like Soli Sorabjee, who was designated a senior advocate in 1971, remain indignant about the fees charged, others believe that high fees are here to stay as long as the outcome of a case in a given court depends on who is arguing it.
Speaking to India Today, Sorabjee said: “To charge ₹30 to 40 lakh [US$54,000-72,000] per day is nothing short of extortion. It is no excuse to say that the client can afford it. Lawyers are professionals, not tradesmen in a market place.”
In 2004, the rules of Delhi High Court were amended to introduce a minimum-income criterion – net professional income of not less than ₹600,000 a year – that had to be met by advocates seeking elevation to a senior advocate.
This was struck down in 2008 as it was seen to be in conflict with provisions of the Advocates Act. But some think it was a sign that lawyers and tradesmen may not be so dissimilar.
Delhi High Court is currently said to be mulling the introduction of a more suitable criterion for applying to be a senior advocate: a record of having argued a certain number of cases before the court.