B.Sc., FCS.,FICWA.,LL.B.,
Practising Company Secretary
kpcrao.india@gmail.com
"Never be afraid to raise your voice for honesty and truth and compassion against injustice and lying and greed. If people all over the world...would do this, it would change the earth. "
— William Faulkner
Advocacy is pleading in support of case. Advocacy is not a craft but a calling. Advocacy by an individual or by an advocacy group normally aim to influence public-policy and resource allocation decisions within political, economic, and social systems and institutions; it may be motivated from moral, ethical or faith principles or simply to protect an asset of interest. Advocacy can include many activities that a person or organization undertakes including media campaigns, public speaking, commissioning and publishing research or poll or the 'filing of friend of the court briefs'. Lobbying is a form of advocacy where a direct approach is made to legislators on an issue which plays a significant role in modern politics.
Elements of Advocacy
a) Accept brief in the Court
An advocate is a person who argues in favour of his clients in courts of justice. An advocate is bound to accept any brief in the Courts or Tribunals or before any other authority in or before which he professes to practice at a fee consistent which his standing at the bar and the nature of the case.
b) Filing the case
In civil cases a suit is required to be instituted by presenting a plaint to the court. The statement of a plaint regarding his claim is taken as a plaint. The plaintiff presents his case along with cause of action etc. through the plaint. The plaint is also called the written statement. Every pleading is required to contain a statement in a concise form of the material facts on which the party filing the plaint relies for his claim or defence.
c) Pleading
The fundamental principles of pleading are four:
1) Every pleading must state fact and no law;
2) It must state all the material facts;
3) It must state only the facts on which the party pleading relies, and not the evidence; and
4) It must state facts concisely but with precision and certainty.
The object of the pleading is to make both the parties aware of their cases and allegations made against each other. Every pleading shall be signed by the party and his pleader. Order VI of the Civil Procedure Code deals with pleadings. It contains several rules relating to pleading. An advocate shall follow those Rules in his Pleading. Suit is commenced by presentation of the plaint.
d) Examination-in-Chief
Examination-in-chief is the way in which advocates present almost all of the evidence through witnesses, whether as counsel for plaintiff or defendant. Examination of expert witnesses and the admission of expert opinions are also vital part of advocacy for which special skill is to be achieved according to the expert evidence.
e) Cross-examination
The examination of a witness by the adverse party shall be called his cross examination. Witnesses shall be first examined-in-chief then cross-examined, later re-examined. The witness may be cross-examined to show his bias or prejudice, to show an interest in the outcome of the case. Cross-examination should be carefully done and to the extent when there is a reasonable chance that it will advance their client’s theory of the case, or undermine some elements of the opponent’s case or defence. Good cross-examination in an art and it is learnt from experience and from observing senior advocates while cross-examining witnesses as well.
In cross-examination every question is required to be asked with an object. By cross examination discrepancies in the evidence of the opponent may be created. Cross examination of witnesses is a procedural matter. It should be done according to the provisions of the Indian Evidence Act, Civil Procedure Code, Criminal Procedure Code and other provisions of the law. While cross-examining, an advocate must not offend the personal feelings on the opposite party.
Cross-examination must relate to the relevant facts. An advocate has no right to disgrace and bully a witness by putting offensive questions. The witness may be cross-examined on the same point and if there is a contradiction in relation to the transaction, the same can be brought to the notice of the court during arguments. Cross-examination should not be misused by an examination which is unnecessarily too long, ambiguous, improper, aimless and uncertain. An advocate should not ask ‘leading’ questions. Cross-examination is an art and the advocate should use it without losing temper. Questions, which affect the credibility of a witness by attacking his character should not be asked. It is to be remembered that cross examination should be carefully done and to the extent when there is a reasonable chance that it will advance their client’s theory of the case, or undermine some elements of the opponent’s case or defence. The opponent advocate should not interrupt the cross-examining advocate. Cross-examination is a right of the advocate; but it should not be misused.
f) Re-examination
The examination of a witness subsequent to the cross-examination by the party who called him is called re-examination. The main object of the re-examination is to explain the points arising out of the cross-examination. The re-examination is required to be directed to the explanation of the matter referred to in cross-examination. In the re-examination an attempt is to be made to restore the credit of the witness attacked during the cross-examination. In re-examination leading questions must not be asked. If new matter is, by permission of the Court, introduced in re-examination, the adverse party has the right to cross-examine upon that matter.
g) Arguments
In arguing a case strongest points should be emphasised and the weak points should not be raised as far as possible. Arguments on each issue should be written out. The names of witnesses and the documents in support of the issue should be early noted. An advocate should study the record of the case with the object to discover the weak points and also the strong points in the opponent’s case. An advocate should prepare the argument in such a way as to meet them and prove them as insignificant. If the advocate finds that a point of the opponent is very strong and cannot be met, then it is better to concede it. The weak points in the opponent case should be emphasized much so as to prove that the weakness is of such a nature that in spite of everything else cannot be sustained.
h) Appeals
Arguing of appeals in a Court of Law is also of considerable importance. In the judgment, the Judge will have some reasonable ground. A careful study of the case is required to find the points which were not noticed by the Court.
Seven Lamps of Advocacy
Advocacy is an honourable profession. Advocates are part and parcel of Court. Their efforts solve the conflicts in the society. Advocates defend the rights and liabilities. They hold unique place in the society. Advocacy is not a craft but a calling; a profession wherein devotion to duty constitutes the hallmark.
Legal profession is regarded to be a noble one. A good advocate should possess some essential qualities and equipment. Judge Abbot parry in his book “The Seven Lamps of Advocacy” called these important characteristics of advocacy as “seven lamps of advocacy” and listed them as honesty, courage, industry, wit, eloquence, judgment and fellowship.
1) Honesty
Honesty means the quality of straightforwardness; freedom from deceit, cheating or stealing and not telling lies. The best advocates of all generations have been devotees of honesty. Example for honest character is Abraham Lincoln, who founded his fame and success on what some called ‘preserve honesty’. The nobleness of legal profession lies in honesty itself. An advocate should not do illegal practices. He should not do any act which will lead to professional misconduct. He should disclose the real facts and legal profession to his clients frankly. Honesty, integrity and character are inseparable. These there virtues together are essential for the success of an advocate. The great sages of law had sucked the law from the breasts of knowledge, honesty, gravity and integrity.
2) Courage
Courage is the quality that enables a person to control fear in the face of danger, pain, misfortune, etc.; an advocate must possess courage. He should face the pressures from outside with courage. Sometimes he has to fight against State. He should not fear about the executive and politicians. He must perform his duty to safeguard the interests of his client. Advocacy is a form of combat, where courage in times of danger is half won battle. Courage is as good a weapon in the forum as in the war camp, According to Charles Hutton’s. ‘He hath in perfection the three chief qualifications of an advocate; Boldness, -- Boldness and Boldness’.
3) Industry
Advocacy is needed a life of industry. An advocate must study his brief in the same way that an actor studies his part. Success in advocacy is not arrived at by intuition but through industry. Industry is the quality of being hard-working; being always employed usefully. Lord Eldon Says, “An advocate must live like a hermit and work like a horse”. Advocacy is an intellectual profession. Intelligence and knowledge will be sharpened with hard-work and strenuous efforts. Advocacy is the profession which requires ‘Study’ and ‘Study’ throughout the career. An advocate must know about every trade. He must acquire the knowledge of every field. He must learn about all professions. Industry brings a good fame and name to an advocate. Law changes day-to-day. To acquire up to date knowledge an advocate must refer international and national journals, reference books of his library and the bar library. He has to work hard like a spider to the benefit of his client.
4) Wit
Wit means clever and humorous expression of ideas; liveliness of spirit. Wit flows from intelligence; understanding and quickness of mind. Wit lessens the work load of an advocate. It relaxes his mental strain. Often the wit of an advocate will turn a Judge
from an unwise course, where Judgment, or rhetoric would certainly fail. The lamp of wit is needed to lighten the darkness of advocacy.
5) Eloquence
The success of an advocate depends upon his eloquence. Eloquence means fluent speaking and skilful use of language to persuade or to appeal to the feelings of others. Fluent speaking impresses the listener. As advocate must be fluent, skilful in using appropriate words to impress the Court. Eloquence attracts the attention of the listener. Eloquence is related to the art of oratory. ‘Eloquence of manner is real eloquence’ and there is a physical as well as psychological side to advocacy.
6) Judgment
Judgment is an intellectual capacity, ‘the inspiration which enables a man to translate good sense into right action’. In judgment one has to estimate, consider and form an opinion about the issues with good sense and ability. An advocate could be in a position to judge the merits and demerits of the case on hearing the brief and seeing the document. He should inform his client the legal position openly after judging the issues. Here judgment is not ‘giving the decision of the case by the Judge in the Court’. Judgment means the study of the case in deep by considering all shades of the consequences. In nothing does the lawyer more openly exhibit want of Judgment than
in prolixity. Judge Abbot Parry has referred to judgment as one of the seven lamps; but he refers to it essentially as an intellectual capacity, ‘the inspiration’ which enables a mean to translate good sense into right action e.g. ‘seeing the right point of his case’ and the like.
7) Fellowship
Fellowship means the membership in friendly association or companionship. Fellowship is exactly like great public schools, the boys of which have grown older, and have exchanged boyish for manly objects. Though the advocates are opponent parties before the bench but not enemies with each other. Their conflict ends as they come out of the door steps of the Court. Daniel Webster says, “Lawyers on opposite sides of a case are like the two parts of shears, they cut what comes between them, but not each other”. There is no discrimination of age, ability, experience and riches etc. between the advocates. All are equal. Courts give them all equal respect. Among advocates, there is just the same rough familiarly, the general ardour of character, the same kind of public opinion expressed in exactly the same blunt, unmistakable manner. By keeping the lump of fellowship burning, advocates encourage each other by sharing the knowledge to walk in the light of the seven lamps of advocacy.
(7+1) Tact K.V.Krishnaswamy Aiyer, in his book “Professional Conduct and Advocacy” adds one more lamp i.e. tact. Tact means handling people and situations skilfully and without causing offence. An advocate must be in a position to tackle and win his client, opponent party, opponent advocate in a smoother way. Many people of unequal ability have failed for want of tack. An advocate should not quarrel with Court or loose temper over trifle things in the Court and outside. Men of unquestioned ability have suffered for quarrelling with the tribunal or for standing on their dignity over trifles, for getting their clients, or for losing their tempers; they are men of parts but more properly refers to the human side of putting into action the result of one’s judgment.
____________________________________________________