Virtues of Lawyers to win in trials

Two virtues are indispensable for a Lawyer to win in trial. (1) Good court administration and (2) Case Management. But what are they?


Good court administration has been defined and described in many different ways. In simple terms it may be described to imply-

(a)    Good record-keeping and systematic filing of the cases.

(b)   Subject wise classification of the cases.

(c)    Good monitoring so as to classify the cases on the basis of the stages they have reached.

(d)   To identify and to rid the docket of 'dead' or moot matters in order to prevent them from clogging the schedules.

(e)    Monitoring and case-flow tracking in such a way as to know the status of each case, to know its procedural position, to locate documents and records more easily and to reflect everything in transparency plate.

Good court administration is necessary for ready references and control over exodus of cases that are in the docket, and is to be ensured by judicial administrators to help the court instantly with any information it needs for effective case management. Efficient court staff equipped with modern technological facilities like computerization would be necessary for good court administration.

Case Management on the other hand, means detailed scheduling of the life and history of a case, after written statement has been submitted, drawn by an early judicial intervention i.e. sitting judge's order, enforcing active participation of the parties and strict observance of the schedule under court's supervision. In other words, it is procedural calendar of a particular civil suit (sort of an academic calendar in a university) where the parties have to follow procedural stream-lining worked out by the court, and which also includes initiation and coordination of consensual processes aimed at the resolution of the case other than through a court trial.

Parties are required to submit separate case management statement within a stipulated time identifying and narrowing down the factual and legal issues of the case. Then they are asked to submit a joint case management statement, further concretising the issues. In case they fail to do so, a joint case management statement would be prepared with judge's active participation at a special hearing. After the main issues have been identified and agreed upon, the trial judge in consultation with the parties will send the case to one of the forms or mechanisms of the available ADR (Alternative Dispute Resolution). Institutional arrangement for the availability of the system of ADR devices (conciliation, mediation, early neutral evaluation, arbitration or even judicial settlement by a non-trial judge) with proper training for the persons to provide ADR, is to be made by the judiciary in advance. While recourse to ADR would be mandatory, there would be nothing like binding decision of the ADR forum. But when the consensual decision by the parties is reached, court will issue necessary order for its execution. In case ADR efforts fail, the case shall go for trial.

Application of case management techniques by the trial judge envisages active participation and joint communication among the parties and their lawyers throughout the case. It requires each side to answer the requisitions, if any, made by opposing parties and additionally, imposes sanctions for non-compliance. It requires the opposing parties to identify the real controversies in the case and seek early responses from each side on question of fact and law. Thus, case management leads to a clear identification and narrowing of the legal and factual issues to be decided. To quote one authority, "The objectives of cases management are to establish judicial responsibility for the otherwise substantially party-controlled, adversarial preparations of civil cases for trial. Specifically, case management is designed to reduce dilatory, frivolous, inefficient, and protracted litigation practices and to replace party controlled litigation processes with judge-controlled, sequential steps in the life of a civil proceeding" [in a definite time-frame] ("Indian Civil Justice System Reform: Limitation and Preservation of the Adversarial Process", New York University Journal of International Law and Politics, Vol. 30, Nos. 1 & 2, 1997-98, p. 62).

Realisation by the parties that ADR is more cost-effective and time-effective is a pre-condition for its launching. Environment under which ADR (Alternative Dispute Resolution) takes place and specified legal and factual positions of the parties are vitally important for the success of any ADR effort. Case management techniques by ensuring contacts between the parties and identifying the real controversies seek to meet exactly these requirements - right environment and understanding of the issues. Needless to say that success of any ADR programme will require goodwill and cooperation of the litigants, lawyers and judge accompanied by necessary motivational work to be conducted amongst them.

It has been argued that mandatory recourse to ADR at the pre-trial stage by judicial intervention would not be a welcoming development for the lawyers, for their income could fall by any success of ADR programme. It's true that any success of ADR could lead to short-term fall in lawyers' income. But the long-term outcome would be completely different. Any success of the judiciary sponsored ADR would enhance the prestige and reliability of the judiciary drawing more litigants to it. Total number of cases of even much lower percentage of enhanced flow of cases going for trial would be quite formidable. Lawyers' fees for the cases going to trial naturally would be relatively high. Moreover, lawyers would be remunerated during ADR stage. In fact, an efficient judiciary with successful ADR programme and effective and timely adjudication is more likely to raise lawyers' income than to reduce it. This has been proved by American experience.

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