How Lawyers Argue a Court Case: The

Phrases of The Complete Lawyer

april 28, 2013

By Protik Da
[retrieved article; some formatting errors might have crept it]
One of the most important weapons in a lawyers arsenal is argument.
The word argument engenders visions of debate, the heat and fury of
positions attacked and defended strongly, though with words.

That may happen of course, in todays litigation, but generally the

arguments which win cases are not replete with drama, sound or fury. That
is because mature reflection goes into a judgment, not a momentary lapse
of reason or a sudden storm of emotions.

Peculiarly polite
We prefer to call them submissions before the Court since it is
consistent with our peculiarly polite way of putting things.

We start submitting before the Court saying May it please your

Lordship and then pause a moment, as if unless the Honble Judge
says Thank You (as they ought to and as at least one Honble Judge
in my experience used to say) we would simply stop talking, and
punctuate every second sentence with a My Lord and after the
case is decided, if it goes in our clients favour Much obliged to your
Lordship or Grateful to your Lordship and if it goes against us,
As your Lordship please or So be it, My Lord.
How these things were formulated has many answers, but the most
commonly accepted one is that these hark back to the courtly culture of a
High Court of the King, where unless the King was pleased to suffer you
speak, you had to keep quiet. What you say must please him. A bit like
Her Majestys Loyal Opposition.

A method to madness: Our Learned Friend

We argue before the Honble Court on the basis of facts we have pleaded
in our pleadings, and to elucidate the points of law. However there is a
method to our madness.
We are not supposed to use such language as is un-parliamentary or would
show discourtesy to the Honble Court or the opponent. That is why we
always refer to the counsel on the other side as Our Learned Friend.

Previously there used to be a distinction in the manner that we addressed

learned advocates on record and the learned counsel, but after 1961 and
our Advocates Act, there is no such differentia in address.

Even if you have known the opposing counsel as a family friend, even if he
is old enough to be your father, even if he knows nothing of the law, he is
still your Learned Friend.

How to say that the learned friend is wrong

When a learned advocate says that which is not true and he is supposed to
know that it is not, the usual formula is not to say My Lord he is lying.
That would be a worse solecism than the untruth itself.

The almost institutionalized formula we use is My Learned Friend is not

properly instructed, or if we want to be really censorious, That
submission by my learned Friend is perhaps not borne out by the
records.

When the opposing counsel is submitting things that are not on record, nor
pleaded, we usually say but that is beyond my learned friends clients
pleadings and is not on records.

Fraud is never committed by my learned Friend, but only by my learned

friends client. My learned Friend can never interrupt, but he ought to
allow me to finish.

Etiquettes in passion
Sometimes passions run high. Even during those times, court etiquette
requires that you never address your opposing counsel directly. You have
to route it through the Honble Court.
An example would be when a persistently rude lawyer is always jumping
up to comment whenever you pause to breath. You dont ask him to allow
you to finish. You keep on looking at the Honble Judge and say things
like My learned friend ought to allow me to finish or I am sure my
Learned Friend will have his turn.

The trick is not to be provoked. A case is won by a cool head, and if you
are prone to losing your temper, then the opposing counsel will certainly
exploit it by sledging, in this context meaning to keep on makingsotto
voce comments that you can hear, but may not reach the Court or may
reach the Court and you but can be passed off as a comment to the
opposing counsels own juniors.
The moment you pause to reply to such off the cuff remarks, you lose the
thread of your thoughts and the skein of your submissions.

Reminding oneself, not the court

Sometimes, a case can spread over several days, with a lot of time in
between. It is not always possible for the Honble Judge hearing the case
to remember everything. Yet the Honble Court is presumed to have total
recall. You cannot be honest and start submissions by saying To
remind your Lordship:. The usual phrase is Just to recapitulate for my
own benefit.

Very often you will find that the Honble Court does not understand a
point of law that you have been arguing for a long time.

You cannot show your irritation or say anything that would imply that it is
the Court that does not understand. You have to say I am afraid/I am
sorry that/Perhaps I could not make myself clear. It is my fault. May I
rephrase myself.

Much-talking Judge is like an ill-tuned cymbal

Even though quite a long time back Francis Bacon, then Lord Chancellor,
commented about garrulous Judges that a much-talking Judge is like an ill-
tuned cymbal, in real life they are the norm.
Many a Judge will not let you formulate a point of law, finish a thought or
a statement without asking a hundred questions. It is neither proper nor
profitable to brush the question aside.
If you are senior enough, you get away with I will come back to that or
My Lord I will answer that directly or I will satisfy your Lordship
and then go on with what you were saying; mostly though, you will have to
answer the Court.

At those times, you must add a rider. I must answer your Lordships
query, but your Lordship will grant me the indulgence to come back to my
principal submissions thereafter.

Courtesy, detachment and finesse

The reasons why we use these euphemisms and courtly phrases, rather than
how they came into being are far simpler. Since we are required to submit
to the Court and seek an order from it, and since the causes we represent
are not our own, we must show courtesy, detachment and finesse.

These small things impress the Honble Court, avoid enmity and passion
play, and make our points with the greatest emphasis. We shall revisit
these precepts in the next part when we discuss the basic structure of an
argument in law.

Questions for Protik Da? Please leave them as comments below. Well
request him to answer them when he finds the time.
Mr. Protik Prokash Banerji, popularly called Protik da by law students
is an advocate at the Kolkata HC. 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 subjects
for the Economic Times in 1994-1995. Presently Protik Da is the Junior
Standing Counsel, Govt of West Bengal, HC at Calcutta.