Alok Tiwari is an experienced litigator who is very likely to have seen the best and worst of the worlds of private practise and law firms, their trials, tribulations and rewards. Before establishing his own Law Practise, he had been Partner with Cyril Amarchand Mangaldas and Dua Associates, two of India’s premier law firms.In his career, he has handled an enormous variety of matters and legal issues that cuts across industries and practise areas.After over a decade with these top Indian law firms, he moved on to establish his own law practise where he continues to work across a wide cross-section of practise areas.
He has been interviewed by EBC/SCC Online Ambassador, Shreya Agrawal, who is currently pursuing law from Vivekananda Institute of Professional Studies.
- Considering your experience as someone who started with independent practise, went on to be part of some of India’s top law firms before choosing to set up your own practise again, how do you see this journey, how would you describe the advantages and disadvantages of working with law firms and their overall contribution to your career.
To begin with, the circularity of the journey you describe reminds of Eliot’s Four Quartets, “Home is where one starts from…In my end is my beginning.” While every lawyer’s life has a logic of its own, but when these are examined under a microscope, one would discover that they almost invariably do not follow the rigorous logic of law itself.
The last decade and a half have been most exciting and fulfilling, professionally and personally. As were all the years before that. To sum up these extremely rich and eventful years in a few sentences is surely an impossible task, one that cannot abide by the solemn oath to tell “the whole truth”.
My independent practise at the start of my career was in the nature of a rite of passage, a ritual and tradition to which I was to return over a decade later. In the intervening period, came my association with two of India’s leading law firms that was predicated entirely on fortuity and happenstance. These were stations on my journey as a practising advocate. So is also the practise I have now set up. The change in geography has been only incidental and does not necessarily define or limit my journey as an advocate.
Working with law firms offered umpteen opportunities to me to experience a very wide and diverse array of work that would escape an individual practitioner’s office. With time, I realised that it was far from common, standard or routine to find opportunities within the law firm structure to be able to work first-hand on a diverse cross-section of practise areas. Fortunately, I did not allow myself to be pigeon-holed or sandboxed into some specific practise area, and I think that has made a difference, one that has grown exponentially over time. These are causal factors that can provide both critical mass and critical velocity to someone’s practise with time.
Overall, my work at these law firms was always full of exciting professional challenges and zero regret. And I would be amiss not to add that my experience with law firms was a necessary stepping stone for me into a universe where I would set up my own practise.
Having said this, one might also consider that the thing to remember with modern law firms is that they are not designed or run as charitable institutions. Nor are they creatures that might necessarily have any natural propensity,affinity or use for human fictions like honour, independence, justice, righteousness and such like. On the contrary, some of these attributes may indeed be regarded as intrinsically inimical to the growth, prosperity and success of law firms and can often be strongly discouraged in subtle ways or even severely penalised.
Much like the allegedly eccentric “organizational theorists”, many of those who have spent enough time with law firms quite often believe or acknowledge that by and large, law firms have their own rules that they must uphold and enforce unwaveringly, without brooking any manner of doubt or question, in order to keep their profit-driven engines chugging. Take a few generalisations of such “rules”(lets call them “laws”) that are claimed to have been encountered, in varying degrees, within law firm structures(these may actually be applicable to any firm structure in some measure): The law of inviolable hierarchies, the law of the zero-sum relationships, the law of pervasive control, the law of the brand, the law of the network, the law of the economic scale, the law of the self-serving bureaucracy, the law of the theatre, the law of window-dressing, the law of the alibi, the law of pollination of “culture”, the law of specialisation,the law of the template, the law of monetisation of perceptions, the law of constancy of pretension,the law of humanised greed, the law of the dehumanized individual,the law of blinding ego, the law of the insecure mind, the law of gross commodification, the law of invariant-homogenous parts, the law of regimented-mediocrity, the law of omniscient management, the law of abstruse billable hours,the law of commerce, profits, and distribution, the law of diminishing marginal returns. Law firms also have their own versions of the laws of gravitation, optics & optical illusions, dynamics, the law of productive chemistry, the law of general and special relativity etc.
Mind you, these staggering arrays of “laws” may have little to do with advocacy or advocacy skills at all. What these are is another discussion. Those who have worked with law firms will instantaneously recognize most of these laws in varying degrees and recollect enough corresponding episodes from their lives. For the moment, we might leave the deconstruction of these laws to the readers’ imagination, given that most are self-explanatorily descriptive.
Regardless, as far as I am concerned, experiencing these facets and dimensions has been invaluable to me while configuring the settings of my own practise and firm. Each experience and each lesson learnt catalysed something, seeded an idea, sparked a silent revolution, triggered some casual epiphany. As I said, for me, the most valuable take-away from my law firm experience, was the diversity and quality of work and opportunity that came my way.
- Could you tell us something about how the experience of working with a large law firm is different than running your own firm practise?
As far as the work and work ethic is concerned, there is almost no difference. Not much re-calibration has been needed. My focus had always been and still remains on those principles that, to my mind,constitute the heart and soul of an advocates’ practise. Any other way would have been a betrayal. Naturally, while going forward one retains what is needed and discards what isn’t.
But of course, setting up a practise means taking ownership; a responsibility that cannot be delegated, though it might be shared. Ownership brings additional responsibilities. Large Law firms operate like well-oiled machines that have dedicated personnel for a variety of tasks. Finance, billing, administrative, human resources and the likes are taken care of by others and these do not therefore, greatly impinge on ones’ valuable time. However, establishing a new practise from its roots upwards tends to bring one inescapably closer to these aspects. At least, till it settles down after its formative years.
Setting up one’s own practise also requires a greater commitment to the self, a greater confidence in ones’ abilities, and the courage to confront the existential abyss. In large law firm settings, these elements can be rendered redundant and fall into disuse for a variety of reasons. And not infrequently, the measure of one’s ambition within some of the law firms may well turn out to be no greater than the height of the ceiling under which they sit.
Setting up one’s practise means that one is finally accountable to none but oneself in so far as his or her firm is concerned. Mercifully, it also means that I am no more to be responsible for the acts of omission or commission of others when they are fundamentally wrong to my mind.
My attempt, within the new set-up, has been to foster an environment where members can express themselves, articulate their views, discuss them, debate them. One can discuss law, but also anything else that piques their curiosity- philosophy, physics, religion, international affairs. As far as work is concerned,there is no pigeon-holing of any member, no segregation.The driving idea is to keep everyone intellectually stimulated, thinking, engaged. To have every member practise application of mind each day and engage in dialogue, in some form or another. To develop in them a sense of professional growth and confidence.
Given the ongoing Pandemic situation, members are left to choose where they want to work from. They are allowed to set their work schedules etc, so long as they are taking complete responsibility for the work they are tasked with. Clients have been given complete access to my time and attention.
- What are the challenges that you faced and are being faced by you after starting your own law firm?
The journey from the moment of germination of intention of setting up ones’ practise to actually setting it up, complete with bells and whistles, can take a long time, painful second-guesses, endless hours of feverish planning, battling the spectre of failure, fits of paralytic anxiety and such like. Fortunately, for myself, like much else in my life, the decision to do so was quick and easy, and the journey from this point to the actual setting up of the practise was without fear or anxiety.
And when I eventually did so, I did it with a sense of inevitability, commingled with destiny.
One might feel that the intervention of the pandemic and the ensuing lockdown could not have made things easier. But these are risks one invariably assumes when one sets up any practise or venture. And it’s all a part of the curve that the practise must trace in its lifetime to build its own character and endurance.
For the moment, despite the challenges confronting a new practise, the focus and priority is on work.With experience once learns that there are many kinds of challenges that resolve themselves, given sufficient time. And I am hopeful that may of the current ones will gradually dissipate with time.
- How are you building a work culture in your firm? And what are your future plans regarding to firm/ where do you see your firm in 5 years (in reference to expansion in other domains, acquiring partners, strategizing)
Culture that has its origins in “cultivate”is an anthropological, social construct when applied to Man and his society.To my mind, culture is not supposed to be a contrived system to be superficially imposed top-down like an emperor’s whimsy or diktat. It is something that develops organically. It defines its self over time.At best, one can try setting some ground-rules in place, akin to planting some seeds, and hope that the natural algorithms of individual commitment and inter-personal relationships would develop them with the arrow of time. Intelligent, educated, civilized, honest people do not need to be indoctrinated with someone’s warped sense of culture to run a practise. Indeed, it might be bordering on the preposterous to define culture on a piece of paper and then claim to build or enforce it – that indeed would be the opposite of culture,that might indeed be closer to regimentation.
The focus for my practise is, as it always has been, on advocacy, on doing quality work, on maintaining an excellence of standards in what it is a part of. When people are committed to work, and possess the right attributes and attitudes, one doesn’t need to spend too much time fretting over the definitions of culture.
The firm was fortunate to be born with the competence and ability to do a wide variety of work. It presently has two offices in Delhi-NCR. While it is likely that the firm will set up offices in other regions over the next few years, scale is quite often a function of time,for the moment, the idea is to grow the practise, gain roots, build stamina, and acquire heft.
It must be said that the once decisive role of geography in a lawyers’ practise has been greatly diminished over the last couple of decades. The Pandemic has only accelerated the obsolescence of geographical constraints in legal practise.
I strongly suspect that we may be on the cusp of some great paradigm shifts in various spheres. And five years may be all it takes for this shift to unravel in our lifetimes.
Currently, there is no haste to conjure up some blueprint or roadmap for the practise. No 5-year plans. No predictions or wagers. No anxiety to look beyond the horizons or desperation to steal a peek into the future.The idea is to simply take things as they come, a day at a time. It’s a lesson that litigation teaches us each day.
- What advice would you recommend a law graduate who wants to start his own law firm? And what is the kind of preparation he must make before venturing to establish one.
While analysing law practises or firms, most often forget that it is the “intellect” available and functioning within the practise or firm that is the real capital and value; not money, not infrastructure, not external ornamentation. Anyone with some money can claim to set up a law firm, but all such a person can succeed in doing is to set up an office. Unless there is sound intellectual capital available within the practise or firm to fuel its development, the office will work no better or worse than a commercial establishment can, but it may never be regarded as a law practise by those who understand it.
I’d think that every lawyer is, patently or latently, inherently an entrepreneur. However, at the initial stage, a young lawyer should ideally focus on observing and absorbing the practise, on working hard, gaining experience, learning, cultivating various aspects of advocacy. Format, settings or geography may not be very material- substance over form! Everyone wants to go to heaven; but no one wants do die. There is no short-cut to success, no fail-safe, no golden-key (at least, not for the vast majority).
While I am certainly no authority on how to set up a law firm (though I can certainly say something about the practise of law itself), I would say that setting up a practise for a young practitioner is likely to be really fruitful only when one has become a reasonably sound advocate. One simply should not experiment with clients’ briefs or hope to learn as one goes. That’s almost as dangerous as an untrained doctor performing surgery, and of course, entirely unethical.
Of the good choices I made in my life, keeping safe distance from the contagion of greed, sloth, envy, covetousness and their usual associates and affiliates, has played a prominent role in defining my sense of self and my practise. I never kept their company. Once they seep in, they invariably spread like cancer to destroy every part of one’s life and personality.
In practise, this is easier said than done.I have witnessed many fall prey to these vices; even those who may have spent decades in this profession- albeit some might become good at camouflaging defects of their character.There are too many toxic and corrupting influences threatening to invade a young professional’s life, too many imposters or predators circling the surrounds, and resistance is not easy.It is important for young lawyers to use “viveka”, the ability to discriminate, discernment, in the early years of their practise, and apply it to people, places, events and things. The value of this should not be underestimated. This also helps one walk away, without the slightest hitch or hesitation, from anything or anyone that can cast grim shadows on one’s life.
A lawyer’s reputation, built over time, is his or her sole currency but one is not allowed to actively trade or barter it for work. Ones’ reputation is how one is perceived in the estimation of others;it is not the way one would like to advertise or market one’s self. A good reputation works like a magnet whose field of influence grows with time and energy, and translates into a commensurate tendency to attract both client and work.
It is only when one considers that an advocate cannot solicit work or advertise,(regardless of what one might witness around), that one truly begins to appreciate the importance of reputation.This restriction is unlike anything in any other business or trade in modern times. Many might find this greatly incongruous in the modern world that is driven by media and suffers an incessant bombardment of brazen self-promotion, self-aggrandizing displays and endlessly streaming advertisements. But these ethical restrictions in our profession are based on sound policy reasons that are perhaps more relevant today than ever before (though I understand that the Supreme Court has issued notice on a petition that seeks approval for advocates to advertise their practises during lockdowns etc). Unfortunately, one might find (but only if one looks) many law firms and law offices work with different genes that were reared in the corridors of commerce that,by promoting almost a single-minded focus on “business”,“business-development”, billing& recovery,tend to inculcate “cultures” that are actively opposed to such ethical considerations that bind advocates. In sporting parlance, that’s foul play of the gravest kind and warrants an immediate red card.
A young lawyer should try not being too swayed by these practises nor be overwhelmed by a misguided or ill-advised ambition to make a quick buck, by hook or by crook. That’s almost a certified dead-end for advocacy.
While on this issue, it must be said that the Pandemic has brought to the fore, two pitiable shows that, to many minds, would be a sad reflection on the state of things in the profession. Firstly, young lawyers queuing up endlessly to receive alms and doles for sustenance, metaphorically trading their honour for money and reducing the noblest aspect of the practise to a display of destitution or indigence.To me, this event was symbolic of the general diminution of the place and role of honour in our common lives. Secondly, the failure of the system itself to protect the honour and self-respect of these young practitioners.In addition to all of that, scores of petitions were filed on behalf of lawyers seeking all manner of grace, exemptions and reliefs for themselves during lockdown. These events, to one’s mind, tend to show the detestable hold that materialism and money may have come to have over our profession and how a sense of desperation may have insidiously replaced our commitment to honour in our collective public life. Should this continue unabated, the soul of this profession may well be lost in time.
Any young lawyer setting out to build up his or her own practise must have the courage and self-belief to not kneel to the vagaries of work or commerce (for the literary-minded, Dante’s “abandon all hope, all ye enter here” may provide some guidance). Must not do what destroys his honour and self-respect. Must not operate like a petty tradesman (with due respect) or mercenary. Must maintain and protect his or her integrity, honesty, sincerity and independence at all cost. Must not be or act servile or subservient. Each young lawyer has the ability to take control of his destiny.This is not idealistic rhetoric. Even if it were, one should remember that it is only our unique notions of and commitment to such principles that separates us from beasts. If not for these attributes defining their character, world-view and practise, lawyers would run the risk of being seen as mere traders that trade on or profit from the difficulties of others, becoming willing accomplices in the gravest sin being committed against this profession in the modern times.
In a world living in an age of instant gratification,it would take great courage to walk away from people, places, events and things that hold the lure of money or promise of some gain or advantage. It is also a question of memory as it takes a very persistent memory to always remember what the profession is really about and to keep true to an unwavering commitment to uphold its values. That is where force and will of character come in.
When one has these, one is more likely than not to succeed in setting up a robust practise, one that will endure the tests of time.
Once one has decided to take the plunge, one should not shy away from starting small. Or,even from taking up pro bono briefs. These matters may not bring in money, but they will bring in something far more valuable- experience, reputation, confidence, fulfilment. These latter are the prime movers in this profession, and money eventually chases these attributes.
Even after setting up practise, one must remain steadfast, bold, patient and perseverant. Not everyone who may have promised work may come.Not every person who had held himself out as a friend may remain friendly. Not everyone who gets work done may pay.Your best work may go unnoticed or unappreciated.Your hard work may not be recognized or may come to receive unwarranted criticism. There will be those who may wish to see you fall and drown,and every once in a while, you may hear whispers of false denigration. With strength of character and force of will, one must be prepared to overcome these. And to outlive them. Adversities have a way of dying with time, so long as one can hold on. Or, as the Greek tragedist advised: suffering is the sole origin of consciousness.
To make the point, I must share that a young practitioner associated with my practise has also been able to successfully set up her own practise that focuses on IPR and Media. How she manages all the work between the two practises giving a hundred per cent to both is a mathematical mystery, but she does it every day and it is a matter of pride and joy that she can do so.
- You worked for some time as an independent practitioner before joining Dua Associates. And then you moved on from Dua Associates and Cyril Amarchand even when you were Partner in these firms, to set up your own practise. Can you tell us about your journey from counsel practise to law firm and then back to chambers?
I have the most wonderful memories of work at both these firms. Both these firms have had at their helm, individuals who have tremendous personalities, drive and vision.
My move from private practise to law firm was a pure creature of accident, born out of my decision to re-locate to New Delhi. Like most good things in my life, I stumbled onto a plan that was not of my making. But once there, I embraced it (I was familiar with the Greek dramatist’s advisory: fate leads the willing; the unwilling it drags).
I cannot regard my move from counsel practise to firm set up and back to chambers as indicative of any kind of break from litigation at all since it wasn’t. Nor a measure of relinquishment, abandonment or even dilution of my sense of being “independent”. I pretty much remained both “independent” and “practitioner” even when I was with law firms, as rare as that might have become.
I began this part of my journey in law firm settings in unfamiliar territory, without counsel or guidance and but with a simple resolve to stick to a rigorous discipline, a silent promise to strive for excellence in what I did, and an endeavour to live an examined professional life. Fortunately, having observed my grandfather in practise at Calcutta during my formative years and grown up secretly aspiring to emulate him, I did not crave for nor hanker after the blessings of any mentor, god-father, protector or guardian.This was a great blessing, for as I was to realise in hindsight, there were none around in my immediate vicinity, in fact, far from it. Over time, one might conclude that it better not to have any mentor at all rather than an undeserving one.
But this also meant that I had to navigate the maze and solve the riddles of professional life in an alien land all on my own. My having been pretty much on my own even before I had stepped out of my teens was an experience that served me well during the initial years and had provided an invaluable anchor. And this period turned out to be perhaps one of the most exciting in my life.
Invariably, my average day for most of the first decade and a half of my practise was enormously long. Weekends were much the same. But there was never any sense of exhaustion. Each day was exciting. There was no shame in sticking to a “first one in and last one out” routine all those years regardless of how often I was advised, without solicitation, of getting a life or finding a balance.
My routine has not changed much over the years despite the change in landscapes or circumstances. Nor has my faith in the principles that I mention.
- What would your advice be to law students who are wish to choose their practise areas in this profession?
We live in an age that has blighted every mind with a surfeit of information and opinion on every manner of issue and subject. Excess information can be devastatingly counter-productive and can clog the ordinary brain unless one learns the sober way to break it down and process it. Of course, absence of any is equally fatal. Unfortunately, this is not a part of law school syllabi. The consequence can be severely distressing for law students.
What this means that it has also become positively dangerous to offer any manner of unsolicited advice to anyone; the best I can hope to do in response to a question that invites me to do so is to attempt to share some of my experiences with those who may be interested to hear, without intending it as some kind of advisory.
So to those that are students of law (I remain one myself), I would say that not everything about one’s life or professional practice can or should be planned. Fortuity and spontaneity can work wonders where the best plans may fail. With time, every student of law transitioning into professional life will find his or her own level, discover the right fit and orbit, and when the time is ripe and her constitution ready, will find himself or herself capable of changing all of these at will.
In my limited experience, it is often best to ignore this question during the formative years of one’s professional life. If nothing, reject it as premature. It simply may not be the right question to be asked by a student of law at all. There is much to be lost by narrowing the zone of consideration in this profession from the outset, and little to be gained. Over time, such questions will either find their answers or become wholly irrelevant to one’s life.
Consider this about experts:If an expert is someone who knows more and more about less and less, I must say that a lawyer, on the other hand, should be someone who knows more and more about more and more. Anyone who says otherwise has not practised litigation at all. I have found from my experience that one should try to avoid confinement of practise to a particular subject or field, at least in the initial years. It is my belief that such pigeon-holing of practise is a great disservice not only to the profession but also to the limitless potential that young lawyers may have when they start. A litigation lawyer should be able to survey the entire field of law like a lion, boldly, fearlessly and without inhibitions. There will be enough time to develop or cultivate a niche.
While court craft and oral advocacy may take years to cultivate, one should begin with striving for excellence in drafting from day zero in practise. And good drafting is based on control and mastery over language. But language, pitiably, is probably the most neglected aspect of a young lawyers training.(The study of Jurisprudence is also vastly neglected as “bogus” theory). Most simply do not read or write enough to be able to master language in any measure, even after a life-time in the profession. And I am not merely referring to reading law books. I have in mind, all manner of literature on all kinds of subjects- science, history,geography, philosophy, political science, psychology and name what you will. They add richness to life, perspective, imagination, creativity, vocabulary; they can even add courage, endurance, perseverance if one allowed these to take hold. These aspects are not useless appendages to our profession. On the contrary, it is these that have a decisive bearing upon ones’ success in practise.
Given that all law is and must be expressed in language, one’s ability to control and deploy language at will ought to have been regarded as paramount in this profession. The fact that it is not, discloses but a staggering defect in legal education and training, but one that is developed over years. A practitioner who is negligent or reckless with language very often invites a plague into his professional life, one that will gradually infest and corrode every aspect of his practise and leave him a withered shadow of the self s/he could have been.
- How was your experience of your initial years in practise? How easy or difficult were these years to navigate ?
I actually pursued a 2-years Masters’ in Business & Corporate Laws after graduating law. But that was in theory. For all practical purposes, I had started practise immediately after graduating law. During my academic years, I was not very bothered with attending classes. Instead, I preferred to spend my time attending court, reading up on law, making my own notes, trying to fathom and speak to the heart of law.And I read up on everything that piqued my curiosity, a habit that I had picked up even before I had finished primary schooling- and a habit that has stayed with me for all these years.
In the initial years of my practise, I was fortunate to have been happily oblivious of law firms and their “culture”. I had never made a resume, never subscribed to any internship. This wasn’t a fad that affected me in any measure. If it was part of my academic syllabi, I must have lost some marks, because I simply did not do these.
During my first year as an independent professional, there was immense toil, but not even a pittance for pay. As fate would have it, even though I had held some briefs for medical colleges and hospitals and had managed to get some work during my initial years in practise, not even a single invoice that I had raised was cleared. Even the money that I had spent from my pocket to get the filings done was not reimbursed. One reason was that I could never chase up clients for my fee. It felt disgraceful and embarrassing and inconsistent with my notion of honour in this profession. It still does.[Consequently, over the course of my practise, I gathered quite a collection of people who owe me money and it remains their debt to pay. Fortunately, precisely for this reason, I have remained a hundred percent debt-free in my life, and I refer to moral debt too and every other kind of metaphorical debt]. I would prefer being “cheated”rather than cheat myself.
To complete the story, in an unforgettable irony of life, it was only once I had settled in my practise at Delhi having left my old practise behind, that one day, all my time-barred invoices came to be paid. This, despite my having completely abandoned them as a bygones.
Interestingly, during this initial period, my fledgling resolve was tested quite a few times when I happened to receive a number of lucrative offers to join some multi-national corporations. However, taking up “employment” was never acceptable to me and it took less than a couple of seconds to walk off from those.I was happy to remain practically penniless (calling in familial assistance was not an option that ever crossed my mind, and if it ever did, I would have rejected it as shameful) than to serve the whims of some master in a corporate establishment.These occurrences kept frequenting my professional life and over time, I happened to receive extremely lucrative offers to head legal teams in multi-national corporations or litigation practise at some of India’s fastest growing law firms. My choice has remained the same. The lawyer in me could never tolerate even the notion of subjugation, serfdom or servitude, even symbolically, and called by any name or clothed in any form.My reference to some of these episodes is only for the benefit of those who may be faced with similar choices and are about to take the easy road that offers money in a Faustian bargain unknowing that there is no professional glory down that path. To them, I would remind them of the great phrase from Paradise Lost: Better to rein in Hell, than to serve in Heaven. Take your pick according to your palate.
My first year in practise was spent familiarising myself with the profession, observing and absorbing everything like a sponge, but retaining what was relevant to my notion of my self and my practise. In some sense, I had forged a platform of sorts from which I could take the next step onwards.
- You started your career almost a decade and a half ago. Tell us about how the field has transformed over the years and what, according to you, might the future hold for new generation lawyers?
Each step that we take towards our future traces an inexorable movement that we refer to as “change”. With change,we must inevitably burn the bridges that can lead us back to the past. Only memories of what once was are retained.Many things about the practise seem to have changed over the last two decades, at least superficially, not all for the better nor all for the worse, and certainly not all of it by design.
Since I was blessed to be able to closely observe how my grandfather and my father practised law during my formative years, my mind invariably traces a longer arc when considering the evolution and development of the practise.
The kinds of libraries that my grandfather and father had assiduously cultivated in their professional lives have all but disappeared from most law offices of the 21st century. The Corpus Juris Secundums, the Halsbury’s Laws, the All England Reports, PTC and such like are rare sights. This means lower impression and imprint time for the mind that reads off a characterless screen and loss of the three-dimensional interface that had appealed, over millions of years of human evolution, to our touch and vision but also, at the same time, a greater access to reported decisions for anyone who has a basic internet-enabled phone. The clumsy unforgiving typewriters were replaced by savvy laptops. But this means quicker processing of drafts. Tedious telegrams were replaced by emails that travel at the speed of light. Everything seems to have been ported into the virtual world. Everything, except our body and mind.
The once familiar world of voracious readers, creative writers and intellectual giants has largely receded into the deeps of time, only faint traces remain, and these we must revere. The concepts of dharma or Rtá have exited the legal discourse. Instead, we have millions of posts, blogs, and videos vying for attention or engagement without pause or rest on a daily basis. Little care is bestowed upon quality of thought or writing. This has also meant that large cross-sections of populations including young lawyers may have simply lost the ability and patience to engage in serious thought. Deep thinking or dense writing might irk them. In general, many struggle to absorb, process and comprehend anything serious. That may verily be the price to be paid for over-subscribing to the world of media, one that is all surface, no depth.For such and like reasons, the last few decades may well have buried the Age of Romanticism in litigation under New Technology for ever. The Age of Dinosaurs may be upon us.
The dawn of the LPG era (Liberalisation – Privatisation – Globalisation) in the early 1990’s was a sea change from the stifling and crippling LIQ raj (License – Inspector – Quota) that had haunted India till the 1980’s. The 1990’s saw global players descend upon India, first dishing out tonnes of general corporate, transaction and advisory work to law offices that were lucky to be living during that decade. Then they doled out complex high-stake litigations over the decade to follow.
Over the last two or three decades, new laws have been legislated, opening altogether new practise areas. New tribunals have been established, giving rise to new avenues for litigation work.From a handful of law firms that were around in the late 1980’s and 1990’s, they have now sprouted like mushrooms over rotting timber in a dense rainforest.
In the meanwhile, Indian law firms picked up on global law firm practises and very quickly the new age of hourly billing was upon us. Senior counsels graduated from charging a few thousand rupees till as late as the first few years of this millennium to charging lakhs, then crores,for their appearances or by way of retainerships.
Indian populace has become increasingly litigious over the last few decades. Resultantly, the Supreme Court and the High Courts across India have continued to be hounded by growing cause-lists and all manner of matters during this same period in which they have seen but a handful of judges adding to their bench strength. Too many contests, too few umpires and adjudicators.
But the greatest change might have come for the young practitioner. This class might feel the force of economic(almost always closely connected with social)disparity the most, particularly, those on the wrong side of the disparity. While most young lawyers started practise with much toil and little pay then as they still do now, today young lawyers also have to contend with the multi-million pay packages that Tier I and Tier II Law Firms start off their associates with. What this disparity does is another discussion, and a very grave and urgent one. But consider this frightening thought that prior to the last pay revision of judges in 2018, associates of Tier I or even Tier II law firms would have easily been earning more in their first year in practise than the Chief Justice of India was allowed after four decades of service in the judiciary.
Law firms justify these pay packages as an incentive to attract talent (simply measured against the rank one held in the merit list). But one wonders, what law firms do with such talent, why does such talent so often leave the stage without a trace (I may be excused for discounting for the self-promoting marketing exercises that enjoy generous budgets at law firms), or worse, why it fails to recognize and realise its own potential, more often than not. A large number of these talented associates serve their time with these law firms for a few years without becoming even remotely equipped to stand up on their feet when the churn and the grind of firms tosses them out into the deep. And along the way, they manage to lose what little courage, motivation and drive they were once fortunate to have had when they started practise, wild-eyed and in love with the idea of law.
- Could you please share your views on COVID-19 and its impact on businesses and what will be the ramifications on legal transactions and proceedings?
Make no mistake, the Pandemic counts as a major event. By now we should be able to see that. The Lockdowns across the globe added to its effect. To the privileged few, it might feel like a force majeure event on a global scale, but it’s actually closer to a catastrophe, given its human and economic cost. If not for the information, technology, infrastructure and other relevant means at our service, a pandemic such as the one we are dealing with surely holds the potential of escalating into a near extinction-level event.
Like every major event in human history, the Pandemic is likely to have a far-reaching and lasting impact on various aspects of lives, livelihoods, professions, relationships. Both at the micro- and the macro-level.
While the Pandemic banished Man from his world and forced his withdrawal from his immediate surroundings with months of lockdown, it has also greatly accelerated the use of technology. Virtual conferences, e-hearings, paperless filings, e-contracts, digital signatures, have become the order of the day. These will only get more sophisticated with the advent of 5G into our lives.
Use of technology in a country like India will, at the initial stage, naturally exacerbate disparity and discrimination based on access, connectivity, resources and the like, but its use is inevitable over time.It’s simply a more efficient way of doing things.Of course, many issues related to technology will need to be sorted out along the way. Migration, storage and integrity of data, security of access and usage, privacy, systemic checks, wider-dispersion of access to technology, internet connectivity and bandwidth, resistance to tampering, eavesdropping, hacking etc.are some issues that would have to be sufficiently addressed.
One might also feel that if there might ever have been a time for India to have been Pandemic-ready in some sense, it is now. Consider what might have happened to the nation if these lockdowns had occurred a couple of decades or so back. Most of the technologies we know today were non-existent. Almost everything was manual and physical back then. Absent human contact and interface, little work could get done.In hindsight, it would appear that the deep technological changes that have been sweeping the nation, and indeed the globe, over the last two decades, were necessary preparation in survival mode for times like the present.
It’s a blessing that a great variety of transactions can be conducted online today. Income tax filings, GST filings, internet banking, mobile wallets, e-commerce, online interface for requisition of a multitude of essential or utility goods or services etc were, in some sense, agents of change working in the background in the life of the common man.
But despite the optimism, given our deep dependence on internet-enabled technology,one must wonder if the next big calamity would not be the world-wide disruption of the internet itself.
Businesses will also have to evolve and innovate to ensure that they do not suffer such and like disruption from causes beyond their control, at least to the extent possible. But this isn’t anything new. Businesses have always been fraught with risks. Over thousands of years. The yearning for stability and peace is almost utopian in the modern day and age that is rife with change and churn. Shelf-lives of businesses have been diminishing over time, though causes may vary.
The human species, with all the ingenuity, inventiveness, imagination and determination at its command, has endured over vast millennia and will almost certainly do so again. There is simply no option as the price for failure may well be extinction.
- Do you think ADR mechanism in these times will emerge as a saviour in tackling backlog of cases?
It is almost a cliché to hear it said in the recent years that ADR, in all its forms,is an idea whose time has come.This may not be entirely true, at least from an Indian perspective.That in some sense ADR was functional in India even thousands of years ago, rooted deep in the Indian tradition and consciousness. This may seem a tad disconcerting to many who, for example, cannot trace its origin or evolution, at its farthest point, beyond the Greeks (like almost everything else in the western world). But for anyone who is familiar with Ancient Indian History and literature, it would seem trite that ADR existed in India from the earliest epoch of the Vedic Age. The Rig Veda attests to the existence of the notion of Panchayats in Ancient India. And those who know anything about the Panchayat system of Ancient India would know that this institution was the perfect mix of arbitration, mediation, conciliation, litigation, adversarial and inquisitorial- all rolled into one. Bearing in mind some of the recent works on Ancient Indian History that push the early Vedic Age by thousands of years into time (a writer has analysed hydrological, geological and internal evidence in the Vedas to suggest that the earliest Rig Vedic books may have been composed well over 20,000 years ago), it might seem incredible that India is not credited with the conceptualisation of this institution.Had the institution of Panchayats not been systematically dismantled and destroyed over hundreds of years,many within or without India may have not regarded ADR as something of a novelty given to us as a blessing from the West or otherwise, thrown themselves into a fit of uninformed excitement believing themselves to have discovered something previously unknown to India.
Anyway, coming back to our current understanding and working of ADR. Despite some of its problems, it does make life simpler for the parties looking to work their way through their disputes with an eye to resolving them.The informality of the process and the control of parties certainly adds strength and merit to ADR’s claim as a viable dispute resolution mechanism during times such as these when court hearings have run into limitations of technology. But it is for the same reasons that ADR requires a certain degree of maturity and good faith on part of all the stakeholders to truly succeed.
Unfortunately, the backlog of cases is not something that ADR can address on immediate basis. To begin with, there is no obligation for parties to resort to ADR once their disputes have reached courts. This is where maturity comes in. Although it might be said that there is nothing to prevent parties from spontaneously agreeing to explore dispute resolution through the ADR mechanism either. While recourse to arbitration in cases where litigation is pending would attract the doctrine of election, these technical restrictions would not arise in so far as conciliation, mediation or other forms of settlement are concerned. The question then would be solely if the parties are willing to be bound by their settlements.Adversarial system offers the charm of conclusiveness and finality of adjudication after a rigorous contest.Litigation may not always leave the parties satisfied, but it would certainly leave them exhausted- enough to lay down arms. ADR is a different paradigm and requires a slightly different mindset to succeed.
- What is your mindset while tackling problems and how have you overcome challenges in the past?
Our intellectual evolution actually violates the universal law of entropy, at least for a vast majority for the vast majority of their lives. A lawyers’ work is perpetually exciting and stimulating. Every piece and part of work in litigation can be viewed as challenging in some sense. One challenge is to solve real-life problems, another is to persuade other human agents involved in the process to your point of view, yet another is to consistently maintain high standards at all times. Additionally, many might be confronted with challenges that are not often addressed or even articulated- how to be authentic and truthful to the profession in an age of extreme commerce; how to develop and grow despite all manner of adverse forces raging in the surroundings. Each of these present different kinds of challenges.
A good lawyer will nurture curiosity, will always ask questions (at least of one’s self), will always evaluate or revise or improve interpretations, will always second-guess all manner of counter-arguments on any given issue, will look for other perspectives. All of this while cultivating his own intellect, knowledge, intuition. But the highest excitement is reserved only for those who are bold enough to venture into the very deeps of law, and for those who have the courage to run against the wind and the tide.
While litigation is always exciting, some of the most memorable work, litigation or otherwise, to me has been work concerning aviation, oil and gas, satellite and satellite space, infrastructure, disinvestment.
There is no question of abandoning an assignment or project or matter only because of some great challenge that it poses. On the contrary, these are precisely the kind of challenges that a lawyer will look forward to.
My approach to any legal problem is to pass it through multiple screens and filters, to subject it to multiple revisions and distillations along the way. Each individual develops his own unique style and there is no one size fits all approach. The more challenging an issue is, the more intensively and extensively it needs to be approached.
A challenge that arises most frequently perhaps is to simply define the problem correctly. And then to remember:If a solution cannot be discovered, it must be invented.
Which is why, a lawyer must be possessed of tremendous imagination and creative force; these are as important to a lawyer’s approach as his intellect. As a matter of fact, these faculties are integral to the optimal play of a powerful intellect.If I may put it thus, much like the great Lord Shiva in our mythological cosmology, a good lawyer will be invariably possessed with the almost superhuman abilities of creation and destruction. But it is only the ceaseless training of the mind that can get one there.
- Please share with the readers what has been the toughest research project/case you have worked on that made you give up, but you did it anyway.
Some of the toughest challenges have been to resist prevailing prejudices, and to arrive at and stand by conclusions that are inconsistent with or plainly contrary to the prevailing view or wisdom. And subsequently, when the world-view on the issue has changed, to be required by a client to find ways and means to shatter them. That is to say, to find ways to get around the very conclusions that I had so painstakingly arrived at. Naturally, this has also been the most exciting part of my practise. And generally, all those occasions when I was able to eke out a favourable outcome despite all opinion or prediction to the contrary or was able to revive and revitalise matters that had been declared dead on arrival by all and sundry were instructive.
Of course, there is nothing exceptional about these instances, as these are fairly common occurrences in a litigation lawyer’s life. To me, they serve to exemplify the adventure that litigation is. There are always ways of looking at the same thing, always a compelling argument to be discovered or invented. These instances also demonstrate how it may not always be possible to fathom the complexity of litigation, nor the turning of fortunes that is possible at every step. These experiences during the formative years of my professional life had opened up a deep secret of litigation to me: there is always a case to be built and won.So long as one is able and willing to pay the price: endless hours of running down arguments and digging into an inexhaustible mine of intellectual energy and imagination.
But once one discovers or realizes that all man-made instruments, law and court decisions included, are fallible, that they are not the word of God, that quite often they are not even the final word on what they purport to affect, one ceases to be daunted. One then begins to really understand,respect and enjoy the adventure that this profession offers.
Quite often during my practise, a voluminous brief in some complex matter was flung at me at the eleventh hour preceding an important cross-examination or hearing, with instructions to proceed.The “trick” in such cases is not to be overwhelmed.This requires preparation, practise, and courage, but it is very achievable for those who set their heart to the task. I have always been grateful to fortune for tossing such opportunities my way.These are likely to come in a lawyers’ life,many instances when someone else’s crisis of self-confidence in the face of an impending hearing or trial,can become one’s opportunity and adventure to undertake. These are the charms of litigation that most litigation lawyers are familiar with: briefs can arrive without notice and theirs not to make reply, theirs not to reason why, theirs but to do and die.
Every litigator knows that this profession does not brook intellectual sloth, insincerity or exhaustion. The profession may grant a long rope to imposters and pretenders, but quite often, only to hang them with in open court and in full public view. And the beauty of it all is: once you are in the profession, intellect is all that counts.Young and old alike can partake of the magic that the profession unlocks.
- How do you rest and unwind ?
This is an extremely important question, considering the storms and stresses that bear down upon the mind and body and that can quickly wear it down. Everyone should be able to call time out on work.
To me, reading, writing, and when time is available, simply driving out to the mountains or my farmhouse with my Black Lab offer great rest and respite. Chess,is also a great way to take mind off things even while keeping it engaged.
But, to each, his own.
- What message would you like to convey to the Readers?
Every act of reading is equally an act of writing; and is potentially just as creative. Any lawyer would know. The modern reader is extremely intelligent. And equally well-informed.Or, at least, one must presume that that is so.In the final analysis,everyone is a creature of his or her own personal experience and every one experiences life differently and with unique admixtures of free-will and fate. Therefore, there can be very little to be said to any one that they don’t already know or haven’t heard before.
A couple of thoughts about law perhaps may be in order.
The practise of law is as rich as it is noble and we must collectively endeavour that it remains so. But it requires a resolute, unwavering, almost fierce commitment to independence of the spirit and the intellect. A sense of justice and righteousness is paramount. Intellectual integrity and honesty are indispensable. Every actor in the legal system is a protagonist, and every protagonist, by definition, has the innate ability to make a difference in this profession.
The all too corrupting influence of mindless commerce threatens to wipe from our consciousness,memories of what is most divine, ancient and endearing in this profession.Too many forget that money isn’t the measure of man, or his ability or success in this profession.
I have had thousands of law-students undertake their internship with me over the last 15 odd years. Almost invariably, I have found that most law-students tend to spend their academic years in fear and anxiety imagining all kinds of impediments and failures. They spend the most time over what law firm will take them, how much will they get paid, what if they don’t get recruited. These are distressing developments in the profession. It would seem that the atrophy of a sense of independence, resilience, confidence begins first in formative years but carries on at law schools where students receive sub-conscious indoctrination about the glories of succeeding in recruitment drives and day zero’s and pay packages, and any who happens to be left behind when the dust settles must be deemed a failure or, at best, considered a second class citizen in the fraternity.
Students of law should have been told and taught that the practise of law is a profession, not a trade, not employment, not a job, not business, not sales or marketing, not commerce, not even a networking event. They should have been taught that advocates are not meant to be workers in factory settings, or a set of invisible anonymous hands ploughing through papers or keeping logs on a desktop in some industrial complex, by whatever name called.They should be taught the glorious part that lawyers played in modern Indian history, of the great personal sacrifices they made and how they carried this nation on their giant shoulders to freedom and when the colonial powers left it in tatters.
To my mind, both academic institutions and firms owe a fiduciary duty to their students and associates respectively. Theirs’ cannot be regarded as simply economic relationships. Not when they hold the power to mould the future of the individual and this nation.Many might disagree but it would appear that Law schools and Law firms do not and perhaps, cannot each values that are the life-blood and soul of the legal practise. There is usually no helping hand, no “hand of God”, except where one has found one by other means.
Much like Man, his institutions are also far from perfect. Both can often shape up like a bundle of contradictions and paradoxes.The academic curriculum taught in sanitised laboratory settings has almost no place or use for the great values that hold up our magnificent profession. Law firms are much too focussed on billing and presentation. The problem can only be aggravated when those who are successful in sales and marketing are put on an escalator and fast-tracked to the top while those who may be tremendous advocates are stonewalled in the organizational hierarchy.One may find that these institutions may not really be invested in the personal growth of the student or the associate, as the case may be. While they might produce obedient students or pliant employees,they cannot motivate or inspire the qualities that are rest at the heart of legal practise. It seems that the more we evolve, the more primitive we become. The law firms of today might remind many of what they have read about the Victorian era English factories. Marx’s description of every man being a “hand” or a cog in the industrial machine may come to mind. But that’s not how lawyers are supposed to be. Quite often, one finds that good advocates have become good despite their circumstances and settings rather than by virtue of these settings.
For those who still honour traditions, this is a profession that is supposed to produce intellectual giants; a breed of lions that are to fearlessly fight for the rights and interest of their clients or serve the public cause with their toil.Too much regimentation has changed many a lion into performer.Nor are advocates supposed to live their professional lives as genetically altered Frankenstein’s who can market themselves or their firms by a series of subtle (mis)representations or aggressive branding strategies.Unfortunately, the system, as it ordinarily operates in the formative years of a law student and a lawyer, does not focus on strengthening the fibre, fabric, nerve and sinew of the minds that it is supposed to train. Once these have been left unattended or otherwise weakened or corrupted, one will, at some time, discover that all the knowledge that one can acquire is futile, if the vessel in which it is to be stored and processed is fragile or weak.
Some of these problems are systemic and the individual or institutional stakeholder may have contributed much to its aggravation; sometimes, by simply looking the other way. But this is another subject of discussion for another day.
Young lawyers should consider this: with their advantages of scale, law firms can grow to become institutions. In the very least, they will be able to operate as “commercial establishments”. While more often than not, institutions will dwarf individuals, private practise affords every lawyer the scope of growing so far and high and deep so as to,some day, dwarf entire institutions.
This is not intended as a criticism of any institution including law firms (they operate under their own stresses, compulsions and justifications), nor to undermine the role any of them may play in the system.Rather, this is to remind many young lawyers, particularly, those who wish to pursue a litigation practise, of the vast oceans of potential that they hold within. To them, it must be said that securing a cushy job or employment could perhaps be the worst thing that can happen to their professional prospects if they actually crave to rise as an Advocate.
That being said, one must keep in mind Alexander Pope’s immortal adage: A little learning is a dangerous thing, drink deep or taste not the Pierian spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again.
Finally, it must be said that if anything deserves to be done at all, it deserves to be done excellently.
And I cannot conclude without thanking you, Shreya, firstly for the wonderful questions and for being an equally terrific host. Not the least, for taking me back to those parts of my life that have brought me here. It has been wonderful speaking with you.