GIST OF TALK DELIVERED ON 23rd SEPTEMBER 2000
AT SEMINAR OF AIFTP (WZ) JOINTLY WITH BCAS

by Shri Y.P.Trivedi, Senior Advocate

The topic assigned to me for discussion is very interesting i.e., art of better representation before the Income Tax Appellate Tribunal. I do not know whether there is any difference between representation before Tribunal or before any other judicial authority. I think the title should have been the art of representation before any Court, why only Tribunal, it may be, High Court, it may be Supreme Court. The methodology is more or less the same. There are no separate approaches in the representation before the Tribunal or any other forum. I would go to the extent of saying that the art of representation is not confined only to the Court, but anywhere in life, in any discussion forum. Wherever you are, it is the same quality, it is the same approach, which can bring you success. So as I said, it may be before any discussion forum, except probably Parliament where different considerations could prevail.

The second intriguing thing about the title is 'better representation'. What is better representation? As I was discussing with my friend, it should be a proper representation. Better is always the enemy of good and if you are using the word 'better', why not say the best representation. The other point is whether it is an art? Whether representation is an art or is it a science? If it is an art, then you cannot transplant or inject the same. If it is a science, then you can explain the principles. I think it is both. It is an art as well as a science and I would like to give you some hints about how you can put your case properly, not only before the Tribunal, or before High Court or before judicial body or before Chitragupta in heaven or hell.

The first advice, which I would give you, is to work hard on your brief. There is no substitute for hard work. As I have read somewhere, if an eight hour labour does not bring you success, make it eighteen hours.

The stakes involved in tax disputes are normally very large and in many cases, very intricate facts are involved. One must master the facts and read the law on the subject, which is also now very abundant and for reading and mastering these hard work is imperative. Very often, people say that there is always room at the top. I believe people work hard to reach the top, but after reaching the top, they quite often hardly work and as a result, they fall off from the top and the room is created. When I joined the High Court, it was a very popular story that if one wants to succeed at the Bar, one should spend out all the monies of his father, then marry a rich man's daughter and spend out her money also. At this stage, one is so hard-pressed with money that one will work extremely hard and make himself a success.

I have seen many juniors who while arguing do not narrate the facts first, but straightaway jump to law to show their legal acumen. This is a mistake, because the importance of facts in the case can never be underestimated. Facts are like arguments of God and your entire edifice is built on the facts of your case. Therefore, one must study the facts and narrate them chronologically before the Court in the first instance. For narrating the facts, you may take the assistance of the Paper Book, which is filed before the Tribunal. You should see to it that the Paper Books are not unusually lengthy. There is a tendency to put unnecessary and irrelevant papers in the Paper Book; sometimes to impress the clients, but if it is unusually large, then its impact is lost, because the Court may not read it. After the facts are narrated with the help of the Paper Book, one should proceed to state the submissions and thereafter support the same with the relevant and coherent case law.

Another thing, which I have noticed in Court, is that many juniors who are very enthusiastic, proceed in the Court at jet speed. It does not serve the purpose, because unless the Judge is listening to you carefully and following your arguments, the fast pace only satisfies yourself, but does not take you anywhere. There is a story about a young enthusiastic lawyer who was going very fast and when the Judge remarked that because of the speed what goes in from one ear immediately comes out from the other ear. The witty lawyer tried a little humour by saying "Is there nothing in between the two ears to stop the speed?", but such remarks can never help one in the Court.

Again, one must never lose the temper in the Court. If one becomes angry, then the case is half lost. Some Judge likes to interrupt time and again and may not permit a lawyer to put his submissions in his own way. This maybe highly unfair on the part of the Judge, but it does not help the case, because if one gets angry, one becomes insulting or sarcastic in the Court. Anger is always a precursor of assured defeat in all intellectual conflicts. There is a story of an overbearing Judge who tried to belittle an Advocate who was short in stature by telling him that "I can put you in my pocket". The Advocate replied "My Lord then there will be more law in your pocket than in your mind". This is good as a story, but not very beneficial in Court.

Again, when the Judge is making a point, it is always advisable to listen carefully without interrupting, because if you interrupt the Judge repeatedly, his ego is hurt and the most important thing in the Court is to understand the psychology of the Judge. It is not advisable to rub the Judge's psychology. There is no purpose in throwing googly in the Court, because Court room is not a cricket ground. One has to be fair to the Judge, one must try to understand the Judge's viewpoint and to meet his doubts. It is important that one has to be fair to the Court and the other side as well. Winning the case may be important, because very often for juniors winning the case is winning the fees, but in the long run, the reputation of a lawyer will depend largely upon his behaviour in Court which should be impeccable. One must remember that primarily one is in the Court to assist the Court.

It might surprise you if I were to tell you that one of the important ingredients for success in Court is to have a good sense of humour. We spend about 1/3rd of our active life in Court and a little smile can always make your stay in Court more enjoyable. Humour can be the spice of life. Hence, one should be humorous in Court, but only to certain extent. One should not persist on making jokes, but a little wit here and there can enliven the Court and make the boring proceedings lively. One should remember the famous lines of Mr .C. K. Daftary. While arguing the famous prohibition case in Bombay High Court he had said "We are now a Republic and what is a Republic without a pub?, it is only a relic". That was an excellent display of sense of humour and wit.

When I joined the Bar, I was told about the three important criteria for winning a case in Court and they were listed as "Tact the first, Tact the second and Tact the third". When you are in Court, you are arguing before a human being and not before a robot. You must know how the Judge reacts to your argument. You are just not entering a debating combat and you are not trying to impress the audience outside, but you have to win over the mind of the Judge. If you shout, you may please your client temporarily, but you may lose the case, which will certainly not please your client ultimately. There are some lawyers who unnecessarily try to be sarcastic with Judge, which attitude does not help them.

We heard about busy lawyers, rushing to Court at the last moment and there is a story about a very important lawyer who rushed to the Court and started arguing for the opponent. After about half an hour when his Junior told him that he was arguing with a wrong brief, he immediately turned around and said this is the case of the opponent at its best and I will now proceed to demolish it. This shows the degree of tact and quick wittedness, which he had.

Once again, you should never be unfair to the opponent. One should always be transparent. There is a difference between business and profession. In business, you can make much more money, but in profession, you earn far greater respect. One has to be fair to the other side and one has to be fair also to the Court, because once your credibility is lost in Court, it might affect you in many other cases. Primarily, you are in the Court to do justice according to law and not engage yourself only in sabre rattling.

One may find on some of the occasions that some Judges try to go out of their way to run down lawyers. One may feel disgruntled, but one should not lose one's cool. One should be polite to the Court, but also firm in your expression. If you feel like passing remarks, preserve them when you retire to the Bar Room. It is a trite saying that even though the Judge gives his judgment everyday, the final judgement on him is passed at the time of his retirement. But it is only half-truth. Everyday when the lawyers assemble in the Bar Room, judgements are passed on the quality and behaviour of the Judge. One should not get over-ruffled if one loses a case, because advocacy ultimately is the art of possible. You cannot win all the cases and one should not get over identified with the client or the case. One should be little philosophical on this issue and after all, if one loses a case in large number of instances, there is always an appeal provided.

One should bear in mind the famous words of Justice Holmes. When Justice Holmes went to take his oath of office in Supreme Court, his driver told him "Sir do justice". Justice Holmes turned around and told him "My dear fellow, I am not here to do justice, I am here to administer law". There is some difference between justice according to law and abstract justice. In the Court, justice has to be administered as per law. Hence, one need not get bewildered if sometimes justice as anticipated by one is not done. One should not behave like a young enthusiastic lawyer who when he received a judgement against him shouted in the Court "I am shocked to see this judgement". The Judge threatened him with contempt proceedings. It was at that stage that a senior lawyer came to his rescue by apologising for the young lawyer by saying that he is inexperienced and if he had been practising for a longer period in the Court, then he would not have been half as shocked as he was.

While arguing, one should not try to be everlasting. It does not pay to be repetitive when a point is properly cleared. Very often, over-pitching one's case, one may lose the sympathy of the Court. The moment you find that you have been able to persuade the Judge reasonably well, one should encash on that atmosphere in the Court without overemphasising and ridiculing the opponent's case. Never repeat when the Judge is already with you and says so openly in the Court. Just as it is very important how to open your case, it is also very important to know when to stop. Of course, forensic eloquence is important in Court, but one should not insist on displaying one's oratorical skill or the flood of knowledge, which would not be relevant for the Court.

Another important thing to remember and that is a mistake which many beginners make is to ignore one of the Judges in a Division Bench. If out of the two or three Judges, one feels slighted, he might become hostile to him. Hence, never ignore any sitting Judge on the Bench even if the other Judge is very much in your favour. You must remember that every man has his ego and when one is sitting on the judicial chair, the ego becomes still more important and that has to be respected. Many juniors sometimes address the Court by looking only at one Judge without trying to make any eye contact with the other Judge, but it can be fatal.

Lastly, one should not forget the psychological aspect. Judge can at times become very difficult. As Edward Carson mentioned " A much talking Judge can become like an ill-tuned cymbal. Even in those circumstances, one should use one's utmost skill, use simple language without being bombastic and slowly try to put one's viewpoints.

Does all this knowledge of advocacy make the representation look like an art or science? Ultimately, you have to comprehend, but arguing a heavy matter, not only the client, but also many a lawyers fold their hands before Almighty.