BLOGGER'S NOTE:
For some inexplicable reason, the following article posted in 2013 (on below URL of lawctopus.com) showed up on one of my LinkedIn entries. It was written by a highly respected lawyer teaching at the Calcutta University. I post it here, with some of my comments interspersed.
=====================================================================
=====================================================================
"Protik Da
-Most clients these days have become
smart. They do
not want to litigate, defend or even enter into transactions without obtaining
a written opinion from at least one lawyer if not more. Writing these
opinions represent a dialectic between two schools of thought:
One, which holds that the lawyer is supposed to give his
opinion, not the sources or precedents that he relies upon.
This
has the advantage, according to one school of thought, of not disclosing all
the cards to the client, because nine times out of ten, a client has his own
favourite lawyer, who may not be particularly bright, but comes to you for an
opinion because you are supposed to be an expert on the subject.
In
other words the client, even armed with your opinion, will not be able to go to
some other lawyer and get the drafting/ conveyancing/pleading done, because he
and presumably the other lawyer will not have the judgments, legal provisions
and authorities that you have relied upon.
The other school
of thought, to which I subscribe, is to make the opinion precise but exhaustive
in its scope.
Rather
like saying be not eternal, since being an opinion you must end, but be
infinite while you last! If the client chooses someone else and he is able to
do an adequate job based on your opinion and research, he would have learned
something new and the profession itself will be enriched.
Remember,
a profession is only as good as its least competent member and you are judged
not by the best of your kind, but the worst. More of this later, in some
future instalment."
[emphasis by Blogger]
---------------------------------------------------------------
BLOGGER'S NOTE: I suggest this would be true if the profession is fully conscionable and ethical, adhering strictly to clearly defined rules. My experience has shown the profession runs more like a business, with intrigue and manipulation applied in order to position to win.
--------------------------------------------------------------
"An opinion, as I see it, must set out the questions on which it is sought very clearly and unambiguously. If the Querist (which is what we call a person who seeks the opinion) is himself confused, his questions will be equally mindless.
[emphasis by Blogger]
---------------------------------------------------------------
BLOGGER'S NOTE: I suggest this would be true if the profession is fully conscionable and ethical, adhering strictly to clearly defined rules. My experience has shown the profession runs more like a business, with intrigue and manipulation applied in order to position to win.
--------------------------------------------------------------
"An opinion, as I see it, must set out the questions on which it is sought very clearly and unambiguously. If the Querist (which is what we call a person who seeks the opinion) is himself confused, his questions will be equally mindless.
It
is your duty as a lawyer to unravel his tangled skein of thought, identify the
issues that are material and on which the relief he wants depends, and then
frame them as questions.
Of
course, these must resemble the original questions, because otherwise the
Querist will feel that you have not answered him, however stupid his questions
might have been.
After that, state the facts in a manner which brings out the materials that will
become material for answering his questions, whether with an “yes” or a “no”.
This
narration must not employ any fact that has not been supplied (rather like the
facts in a moot) but it certainly ought to include any presumption or natural
inference you have made from the facts, for the purpose of the opinion.
You
must of course, state that this is your presumption or inference.
After
the facts are over, you may begin your analysis, on which the
opinion depends."
------------------------------------------------------------------
BLOGGER'S NOTE: Again, we are 'presuming,' I suppose, to be functioning on at least an equal ground within that profession. With respect to Mr. Protik Da, when the Querist is an SRL he can expect to receive a double whammy when meddling in the affairs of a closed profession. Not only will he be in-competent, he is not even a subscribed and legitimate member.
----------------------------------------------------------------------
"An easy way of analysing is to first set out the law and the provisions of the law (or laws) that are applicable. Then you go on to summarize the binding precedents (judgments of the Supreme Court and the High Court of the State exercising jurisdiction over the subject matter) with full citations.
------------------------------------------------------------------
BLOGGER'S NOTE: Again, we are 'presuming,' I suppose, to be functioning on at least an equal ground within that profession. With respect to Mr. Protik Da, when the Querist is an SRL he can expect to receive a double whammy when meddling in the affairs of a closed profession. Not only will he be in-competent, he is not even a subscribed and legitimate member.
----------------------------------------------------------------------
"An easy way of analysing is to first set out the law and the provisions of the law (or laws) that are applicable. Then you go on to summarize the binding precedents (judgments of the Supreme Court and the High Court of the State exercising jurisdiction over the subject matter) with full citations.
If
your choice of extracts is precise enough, your ultimate opinion will appear
from the extracts of the judgments that you have quoted.
In
the analysis you may also point out the conditions which have to exist for the answer
to the queries to be positive or negative which will advise the client as to
what steps he ought to have taken so that he can correct himself in the future
in similar matters."
------------------------------------------------------------------------
BLOGGER'S NOTE: Very likely the SRL Querist will have learned his lesson, having come to the realization that as a stranger in a strange land, his circumstances are such he well never be able to sit at the same table, treated as an equal, since he is NOT!
-----------------------------------------------------------------------------
"Then indicate in brief that according to the law applicable to the facts, where the Querist actually stands." [blogger's emphasis]
------------------------------------------------------------------------
BLOGGER'S NOTE: Very likely the SRL Querist will have learned his lesson, having come to the realization that as a stranger in a strange land, his circumstances are such he well never be able to sit at the same table, treated as an equal, since he is NOT!
-----------------------------------------------------------------------------
"Then indicate in brief that according to the law applicable to the facts, where the Querist actually stands." [blogger's emphasis]
-------------------------------------------------------------------------------
BLOGGER'S NOTE: Aye, there is the rub! "according to the law applicable to the facts"
This is Justice adhered to and presumed applicable in the 'Just' world, not in the theatre as practiced in the real world. Is there then some rhetoric naivety of purity at play here?
------------------------------------------------------------------------------------------------
"Numbering the paragraphs help, because in your opinion or as part of the analysis you may have to refer to what has been written before and by referring to the paragraph-number you obviate the need of repeating the whole thing.
BLOGGER'S NOTE: Aye, there is the rub! "according to the law applicable to the facts"
This is Justice adhered to and presumed applicable in the 'Just' world, not in the theatre as practiced in the real world. Is there then some rhetoric naivety of purity at play here?
------------------------------------------------------------------------------------------------
"Numbering the paragraphs help, because in your opinion or as part of the analysis you may have to refer to what has been written before and by referring to the paragraph-number you obviate the need of repeating the whole thing.
-Now
you are ready to answer the Queries, that is, the opinion proper,
as it is called. Try to answer with a monosyllabic “yes” or “no”,
referring to the paragraph number of the analysis and facts sections of the
opinion.
Where
that is impossible, keep your answers as short as possible. An example
may help.
Where
the Querist has asked “Is the transaction a valid mortgage”, you can answer
“Yes” or “No”, and then add “in view of what has been said in paragraphs such
and such of the Facts and paragraphs such and such of the Analysis”.
However,
where the Querist asks “Why is this not a valid mortgage” you cannot answer
with ‘yes’ or ‘no’ but must explain, though with reference to what has been
written by you in the Facts and Analysis sections.
Remember
to use the usual disclaimers, that the opinion is based on the law
as it stands on the date when you are signing it, and is based on the facts and
documents that were supplied to you by the Querist.
It
helps if you list the documents supplied and also that which you have
consulted. Remember to add that it is according to the best of your
ability.
If
you are practising as an advocate on record, this will go a long way in saving
you from being found guilty of professional misconduct and also negligent in
any proceeding before the Bar Council or for damages for malpractice, in case
your opinion was wrong."
-------------------------------------------------------------------------------
BLOGGER'S NOTE: AH! Rather than accepting the Courts are not about Justice, but about a Party's positioning and gaining the upper hand through rhetoric of argument, the above assumes the system is actually on its toes, on the look out for any possible deviation.
-------------------------------------------------------------------------
-------------------------------------------------------------------------------
BLOGGER'S NOTE: AH! Rather than accepting the Courts are not about Justice, but about a Party's positioning and gaining the upper hand through rhetoric of argument, the above assumes the system is actually on its toes, on the look out for any possible deviation.
-------------------------------------------------------------------------
Mr. Protik Prokash Banerji, popularly called Protik da by law
students, juniors and friends is an advocate at the Kolkata High Court.
Interning at his chambers is an experience of a life time. People who learn
drafting and oratory skills from him swear by the excellent teacher he is. He
talks about movies and literature as authoritatively as he talks on law and
wrote on such diverse subjects for the Economic Times in 1994-1995.
======================================================================
FROM AN INTERVIEW (see below URL)
Remember, litigation means appearing before an
adjudicator. He is only human. It is the Mentor, with his vast
experience, who can guide you and teach you how adjudicators can be lawfully
persuaded and what are the ways in which you can train yourself to do it
instinctively.
These are the reasons why a Mentor is still indispensable in
the world of litigation.
(<…>)
Being an advocate is a very
heavy responsibility. As you grow older you will appreciate it does not
consist only of wearing a black coat and bands and doing “Judge Saab” like
Sunny Deol in a Bollywood blockbuster or rushing to the police station with a
bulging brief case to bail out your gangster client. It requires a dedication to the rule of law, the
ineffable yet ineradicable principles of justice and a commitment to the
dignity of the most impartial wing of government, the last bastion of liberty
and democracy in an age of increasing commercialism, capitalism and
authoritarianism – to the judiciary which is
forever a sentinel on the que vive.
-----------------------------------------------------------------------------------
BLOGGER'S NOTE: "It requires a dedication to the rule of law,..."
This SRL has NO idea WHAT purist Nirvana world is being identified here. Show me any Jurisdiction that still functions thusly, and I may go visit it and observe with mine own eyes.
Otherwise, we may indeed be speaking Make-Believe in Bollywood!
---------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
BLOGGER'S NOTE: "It requires a dedication to the rule of law,..."
This SRL has NO idea WHAT purist Nirvana world is being identified here. Show me any Jurisdiction that still functions thusly, and I may go visit it and observe with mine own eyes.
Otherwise, we may indeed be speaking Make-Believe in Bollywood!
---------------------------------------------------------------------------------------
http://www.lawctopus.com/category/career-advice-3/protik-da/
No comments:
Post a Comment
Post a Comment