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Verbal Arguments As A Lawyer- What Lines You Should Not Cross

Introduction

The current number of litigation cases that the courts are presented with necessitates that advocates offer well-prepared arguments that can be rapidly digested and later confidently judged by the Court. It is increasingly vital to prepare written arguments that are complete, clear, and short so that a rising proportion of cases are resolved with the help of oral arguments in both trial and appellate courts.

What is the relevance of professionalism and ethics in the legal profession?

The basic purpose of ethics and professionalism in advocacy is to protect the integrity and dignity of the legal profession. Legal ethics ensure that the legal profession presents each case in the most formal way possible and serves society with honesty, therefore building confidence in the justice system. Effective advocates exhibit a core courtroom attitude that is marked by goodwill, which is characterised by pleasant attitude towards others. Above all, it signifies confidence and support for the system. This character expresses itself in interactions with judges, witnesses, and all other parties involved in judicial activities. It provides a feeling of mutual helpfulness to the whole proceedings. Thus, professionalism and ethics are at the core of the spirit of advocacy. 

The ethical limits that need to be observed during verbal disputes

1. Polite submission

These include court submissions, which need a certain kind of civility. These include customary pleasantries in the courtroom, such as beginning submissions with “May it please your Lordship” and pausing briefly, until the Honourable Judge says “Thank You,” and ending every other sentence with “My Lord.” Additionally, when the case is decided, a lawyer should say “Much obliged to your Lordship” or “Grateful to your Lordship” if the client wins, and “As your Lordship please” if it loses.

2. Etiquettes when arguments are presented

Sometimes, emotions in a court may get out of hand.  Even during such moments, court etiquette demands that an advocate never approach the opposing lawyer directly. It has to be routed via the Hon’ble Court.

An example would be when a consistently rude litigator is continually springing up to remark anytime an advocate halts to breathe. In such circumstances, things like “My learned friend ought to allow me to finish” or “I am sure my learned friend will have his turn” should be used.

The trick is to not be provoked. A calm head wins cases, and if you are easily agitated, the other advocate will take advantage of this.

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3. Reminding oneself, not the Court

Sometimes, a case might continue over many days, with a lot of time in between.  It is not always practical for the Hon’ble Judge hearing the matter to recall everything.  Yet the Court is believed to have “total recall”. In such a situation, one cannot start submissions by stating, “To remind your Lordship”, the customary remark is “Just to recapitulate for my own benefit”.

Very frequently, you will realise that the Hon’ble Court does not grasp a subject of law that you have been discussing for a long time. You cannot exhibit your annoyance or say anything that would indicate that it is the Court that does not grasp. You have to state, “I am afraid/I am sorry about that/Perhaps I could not make myself clear. It is my obligation. May I explain myself?”

4. How to state that the opposing lawyer is inaccurate

When a learned advocate states something that is not true, the general way is not to declare, “My Lord, he is lying”. The virtually institutionalised formula that is employed is “My Learned Friend is not properly instructed”, or if we want to be very censorious, “That submission by my learned friend is perhaps not borne out by the records”.

When the opposing counsel is presenting items that are not on record nor pleaded, we frequently remark,” But that is beyond my learned friend’s client’s pleadings and is not on record”.

5. Courtesy and Finesse

The reasons why we employ these euphemisms and courtly terms, rather than how they came into existence, are significantly simpler.  Since we are compelled to submit to the Court and seek an order from it, and since the causes we represent are not our own, we must display civility, detachment and subtlety in the way arguments are presented. These tiny things impress the Hon’ble Court, prevent hostility and passion play, and present our remarks with the greatest intensity. 

What can be done to maintain professionalism?

There are numerous essential admonitions of advocates’ and advocates’ general conduct that should be obeyed. Counsel must acknowledge the shifting times in which advocacy is currently performed. Therefore, during these times, it cannot be emphasised enough on how important it is to know the laws. However, several criteria should be kept in mind: 

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1. Counsel should utilise a clear grammatical style.

2. Avoid tedious, repeating debates.

3. Personal attacks against opposing counsel. Any reference to that should be predicated purely on the record. 

4. Beware of unique printing or typing styles, pompous terminology, slang, or needless shows of learning. 

6. Know the court rules governing oral argument. 

7. Maintain a conversational tone of speech with occasional intensity, without yelling. Never participate in unethical argumenting and maintain total respect for the Court.

8. Answer all questions from the Court. Never dodge inquiries or engage in aggressive disputes with the Court. Do not sidestep an inquiry by suggesting that you will answer it later. If you cannot answer a question, surrender it, but never try to fool the Court.

9. Speak to the Court only when spoken to. Read only when absolutely essential or to prevent an erroneous reference or quote. 

Conclusion

Law is a cornerstone of the structure of Government. Thus, a suitable code is essential in order to avoid domination of the legal system by cunning, greed or dishonourable motivations. Ethics is a mechanism by which an advocate owes a responsibility to the Bar and a judge to the Bench of Justice. It must be mentioned that litigants or clients that advocates represent don’t exactly owe the same level of ethics as an advocate or a judge in a Court. 

The obligation to prevent the client from resorting to unethical activities is equally shouldered by the Bar and the Bench. In the altering world of legal practice, a high level of ethics and professional behaviour is the only tool that can ensure a functioning justice system, and it would also restore the trust of people in it.

References

  1.  Laurie L. Levenson, Courtroom Demeanor: The Theater of the Courtroom, 92 MINN. L. REV. 573 (2008).
  2. Elizabeth A. LeVan, Nonverbal Communication in the Courtroom: Attorney Beware, 8 LAW & PSYCHOL. REV. 83 (1984).
  3. Maureen A. Howard, Revisiting Trial Basics Every Time: A Ritual for Courtroom Success, 34 AM. J. TRIAL ADVOC. 335 (2010).
  4. Archer E. Reilly, Courtroom Advocacy, 8 CAP. U. L. REV. 185 (1978).
  5. John M. Conley, William M. O’Barr & E. Allan Lind, The Power of Language: Presentational Style in the Courtroom, 1978 DUKE L.J. 1375 (1979).

 

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