Backlogs can be cleared, procedures, laws and rules amended, judges appointed, and adjournments refused; but a lack of training and a failure to show that it is the little things that matter — these are irremediable failures
As a rule, Courts are not much given to strongly worded chastisements in their written orders, possibly on the understanding that it takes all types. Except for its language, there was, therefore, nothing very remarkable about the recent order of a Delhi tribunal fining a law firm for what is perhaps best described only as a series of procedural missteps.
This is not the first time an egregious mistake has been made in a court, and it will not be the last. Instead of pillorying the firm, we should address ourselves to what I believe is a much larger and more significant failure, and that is in the way we train and develop a next generation of lawyers.
Law and medicine share at least this: after an initial period of instructions, both professions do their training on real people. This is daunting, dangerous and really, really scary. In his first book, Complications, the surgeon and writer Atul Gawande tells of his own early-career horror when forced by circumstances to attempt an emergency tracheotomy. This is the kind of thing that has an immediate resonance in law; every lawyer knows of that awful near-death experience when you’re suddenly abandoned and left to face a court on your own. There’s no place more desolate, or more terrifying. And it doesn’t help that the world seems to have chosen that particular day to come to court and is only there to watch you fail. It’s about this time you discover religion and start longing for the quiet, air-conditioned refuge of your firm’s non-lit department; boring perhaps, but safe. It’s too late for that now, and panic is a first response, usually evidenced by talking much too fast and much too loud. It only gets easier with time and experience and the realization that in a century and a half no judge has thought it necessary to climb down and slap a lawyer (even though some admit that the temptation is often overwhelming). But while mistakes in medicine can be catastrophic, rescue is usually easier in a court and help is seldom very far away. At the level of an inexperienced rookie, a mistake is just par for the course. But when it happens repeatedly — sloppy filings, inadequate preparation, increasingly irritable judges — we should start taking notice that something is very wrong. There are consequences to bungled lawyering, usually in terms of costs, and it is simply no answer to carry on regardless because these costs are borne by that hapless soul at the bottom of the litigation pyramid, the litigant.
Some are given to blaming an entire generation. They accuse it of distorted priorities, laziness, incompetence, too much television and all manner of other things. This isn’t true. Of course there are those who fit these descriptions. There always have been, and always will be. But equally, there are many who are exceptional.
The trouble lies elsewhere. Part of it has to do with our training methods and educational systems. In law, with the introduction of high-end national law schools, education is much improved but it is still confined to that narrow elite band hasn’t spread across the entire legal education system. Large numbers of inexperienced, under-trained and poorly taught students enter the law each year. To expect them to suddenly up their game is unjust.
We’re chasing ghosts. We’re chasing numbers. Specifically: money, which has now become the only indicator of both success and quality. No one says that young graduates shouldn’t be paid well or that they should have to scrape together a living. But that high seven-figure annual salary (plus bonuses plus commissions) doesn’t necessarily imply ability or skill. Raw graduates claim to be able to “take evidence”. Really? No statute — certainly not the Evidence Act or any procedure code — teaches you what to do when you first face a witness or even the essentials of how to take a direct examination. Nowadays we take examinations in chief on affidavit, and every single affidavit is an abomination: the least offensive ones are mere reproductions of a plaint. Others are the handiwork of youngsters with more ambition than knowledge: full of arguments and inadmissible hearsay material. In a non-lit practice, a twenty-something who can’t be trusted to correctly draft legal correspondence demands to be allowed to ‘close’ the next multi-crore transaction. What has happened here? There is a hubris here and it has nothing to do with having a degree or graduating from a prestigious law school. It is the arrogance of money, and it drives out the humility of learning.
Combine this with the laziness that computers and word processors encourage — that pestilential global search-and-replace — and you have all the makings of a disaster. In another time and age, you had to research the law by actually reading books, not googling search results; one thread took you to another and then a third, and you were forced to read them all. Handwriting a draft forced you to think and avoid going on and on, and then you had to correct the typed copy, correct that, then get it typed again, forcing a process of revision that we seem now to have altogether lost. The consequences are no less uncomfortable because of their familiarity: unproofed documents without page numbers, emails with no subject lines and terse one-word body text (“attached”); the list is endless. Certainly precedents have their use. But to use them to develop a plug-and-play approach to law is something else entirely. Sometimes the effects are hilarious: a draft contract between two parties in India, for instance, subjects all disputes to the jurisdiction of courts in California and no one can explain why or how this contract jumped seven time zones. “Working up” a brief is limited to reading just the first two documents and not even attempting an understanding of either. It’s not often that I find myself rendered utterly speechless, but this one did it: “Should I also read the plaint?” No, my young and unlearned friend. Read the tea leaves instead. To every question like this, I have only one response: I refuse to answer, on the ground that I might incinerate myself.
The fault, I think, lies not so much in those who come hot off the law school presses as in our failure to develop any kind of structured, formal induction and training in-house, and, across the profession as a whole, in making no space for compulsory continuing legal education. Some firms attempt the former with lectures and seminars. But these isolated nuggets are seldom soldered into a cohesive objective, and most focus on arcane theory. Lectures and talks don’t tell you how to manage a litigation, for instance. Many good cases are utterly botched simply because the supporting logistics were messed up. This requires a special kind of training and not all of it is necessarily intuitive. How, as a junior, do you keep papers ready for use in court? How many copies of anything should you have? And there are those little secrets that you need to be told early on in the game: that in any litigation, you need to be on a BFF basis with the single most influential person in the litigation department, and that’s not the managing partner’s BMW-driving brat. It’s the firm’s court clerk. He’s the guy who knows all the procedures, what’s to be filed where and with whom and when. Cross him at your peril: he can do you more long-term damage than any amount of being bawled out by a partner.
This isn’t limited to India. A November 2011 article in the New York Times saw much the same thing in the American legal services sector:
What [law firm associates] did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”
…
“The fundamental issue is that law schools are producing people who are not capable of being counselors,” says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil drilling equipment. “They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.”
Many judges bemoan the falling quality of lawyering. This isn’t about there being some who are good and many not so much; it’s about a general trend and implicit in this is the sense that as a profession we have lost of what matters: attention to detail. We ignore the very serious implications of sloppy work because we can get away with it. We forget that badly presented, unproofed, unpaged, inaccurate and incorrect documents at any stage of the process are, above all, a discourtesy. They show an unacceptable disrespect for the reader, whoever it may be — the partner or senior, the client and, worst of all, to the court. All it needs to get it right is a little more time, effort and focus, and far less anxiety about turning over volumes. It should be about quality, not quantity. Why isn’t it? Somewhere along the way we lost that.
Everyone, even lawyers, constantly castigates the judicial system with arguments that are now hackneyed and just plain boring: “endemic delays”; “backlogs”; “antiquated procedures and laws”; “constant adjournments”; “vacancies in appointment of judges”. These are symptoms, not causes. But when a young lawyer stands up before a court without having read his papers, or perhaps tries to put one over the court by saying the “matter is covered by a Supreme Court judgement” and yet has at hand neither the name, the reference or a copy of the law report, it has nothing to do with any of those vacuities. At times like this, it is easy to slip into a sense of outrage and move from there to contempt, and our anger blinds us to what’s missing and who should be held responsible. Without a system of mentoring, and without a sense that supervised mentoring is, after a certain number of years, a primary obligation of every practitioner, these situations are only going to get worse. Backlogs can be cleared, procedures, laws and rules amended, judges appointed, and adjournments refused; but a lack of training and a failure to show that it is the little things that matter — these are irremediable failures. And they are ours, not our students.
Lawyers are passionate about maxims and mottos in Latin. Perhaps we should adopt this one as an industry standard: in minimus Deus est. God is in the details.
As a rule, Courts are not much given to strongly worded chastisements in their written orders, possibly on the understanding that it takes all types. Except for its language, there was, therefore, nothing very remarkable about the recent order of a Delhi tribunal fining a law firm for what is perhaps best described only as a series of procedural missteps.
