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Setting expectations, Managing your advocate, handling communication

Set realistic expectations from lawyer

Following are sample of unrealistic expectations:

1. Lawyer can speed up my case. If you just read the newspaper you will find there are cases running for decades altogether in India. Only fast track cases can finish within 2-3 years, and that's for criminal cases. There are no fast track courts for civil cases.

2. Thinking of lawyer as a solution provider or advisor: Think of advocate more as a helper and at best a partner. How professionally a lawyer will work in your case may depend entirely on your own preparedness, clear directions, and communication with him/her. I gave example earlier how a person got 4 different answers from 4 different lawyer to a relatively simple question about legal procedure. In general, the advocate community gives the impression that they cannot be trusted fully and client should be watchful about what they are doing for him.

Approach to take with lawyer

You can decide to be the car driver, and let him/her be the navigator. People do the opposite letting lawyer doing the driving and then they wonder why he doesn't do what they tell him to do! If the lawyer didn't advise us on who to marry and how to run our married life, why the hell he should he/she be advising us on what to do if our married life has run into problems? Whether you should file RCR, divorce (both not recommended in most cases), or just wait and watch; should be your choice, not based on advocate's advice. They can execute on what you want them to do, but don't let them take control of the steering wheel.

Many people won't be able to digest the above. Let me give another example. If I am an insurance salesman, then it is in my interest if you buy insurance from me, then would you expect me to give you advice against buying insurance? When even doctors are found prescribing unnecessary tests which serve no value to patient, why do you expect an advocate to prescribe just the right things and nothing more than the right things?

Young lawyer or old?

Some people say that if you hire an older lawyer, he/she may have the experience, but he/she may disappear from the scene after initial few hearings, and his juniors will take over. They will be taking adjournments while you want the case to run faster. He won't be available for your case since he has so many other things to handle. On the other hand, he has juniors available for managing routine work and routine hearings, so you won't have to guess whether your lawyer will skip today or when is he/she going to come back from his/her other court hearing.

Younger lawyers have the advantage that they are more available and don't have a vast practice or other junior advocates to manage. He/she will himself be available for discussing things himself for important things like drafting an IA (interim application). But they may lack experience and that maybe an important factor if you think your case is complex. Hint: if you don't know whether your case is complex, most likely it's not.

My own thinking is that very young lawyers nearer to 25 years of age maybe a risk unless they give some confidence that they have handled matrimonial and maintenance cases. Someone above 40-45 maybe unavailable if he has other lawyers to manage. So depending on your own needs and preferences, choose between various available options.

Setting fees

Fees varies from city to city. In a relatively high-income city like Bangalore where people have more income but less time, legal fees will be more than say in Nagpur.

One Bangalore person informed me that his lawyer was charging Rs 1,000 per hearing in DV case. He also said that his lawyer knew about his relatively high income.

Another person recently said that his lawyer told him that he expects to get Rs 3-4,000 per hearing. This person has relatively simpler family court case.

I mention the above cases only to suggest what not to fall into. Here are my thoughts on the issue of fees:

1. The best point about legal fees was something I read in Advocates Act. It said that a lawyer is supposed to charge a fees which is commensurate with his experience level in his practice, and other lawyers at same standing. If you read the Advocates Act and bar council rules etc, it would seem that practice of law is a highly noble, and selfless profession the aim of which is service to clients, and not expect rewards, and definitely not act in a greedy manner. Also, lawyers are supposed to be part of a brotherhood, about which point I couldn't agree more. They all join together in breaking things and violent protests on the street when the need arises!

2. In general, I think that paying anything more than 5-10K at a stretch to a lawyer should probably only be done AFTER one has some confidence in that lawyer having engaged him for a while. The confidence can be both ways too. I know of cases where lawyer took some money initially and didn't take anything until the cases were closed, at which time the full settlement was done.

3. The fees should be based on progress of case from one stage to another, for example from written statement to evidence, from evidence to cross-exam and so on. That will remove the problem of paying fees per hearing if the hearing is simply resulting in adjournment for no fault of yours. If you have more than one case with same lawyer, then the fees will increase. If 2 cases are running together in the same court, then the fees may increase but not necessarily be double since both cases get heard on same dates.

Best practices of engaging with lawyer

Draft your own petitions, your own objections, your own IAs. All of these can be done by advocate and in fact most laymen hire lawyers to do mainly these things, since they think of petitions and applications to be of special nature needing professional expertise. It is simply not so. Barring the legal header and footer/signature, the matter of any petition or application is basically statements of facts as you know them, followed by your prayer to court asking for specific reliefs. I have done it in all my cases and in consumer court cases too, with good results. Also, any advocate never knows the facts and evidences as well as you know them yourselves, so you will be at advantage if you write them yourselves, and use lawyer's help to review and polish them if required. I am amazed when I read copy-paste petitions made by wives' lawyers, with no grammar and no flow of thoughts, haphazard sequence of events, and probably it's intentional because their lawyers also know the case doesn't have merits, so why spend time putting polish on an ugly case. Basically the wives' lawyers are taking them for a ride, the wives just don't know it yet. They are all hoping that filing petition, combined with mediation, and a dose of women empowerment will save the day for them! It's not that simple.

I always prepare my own drafts and expect lawyer only to correct/review and take a print and submit in court. Sending the drafts by email is quite productive so one doesn't have to travel to advocate's office just for that purpose. For that reason, I think it's better not to engage with a lawyer who doesn't use email much. I know of one person who engaged with an advocate who still used to make him run around with him in the court complex trying to find a typist to type the petition, and such things. In today's age, almost everyone can afford a computer, and if they haven't yet learnt how to use it, then probably you can find some other lawyer who can even if he/she is younger. The productivity gain of using computer to draft petition/IA, email to lawyer for review etc are just too high to ignore. So there is no need to settle for old fashioned way of doing things.

Meet the lawyer at office before important events like submitting something in court, discussing evidence, how to cross-exam wife, and such things.

While in court during cross-exam, stand next to advocate with a list of written points to remind him to ask wife, in case he forgets. You may also keep some evidence/documents ready with you to ask wife during cross-exam.

Communicating with lawyer

1. Phone is preferred mode of communication for most lawyers, only problem is that they may choose not to pick up when they don't want to! And they will never tell you the reason behind it, that's how the lawyers work, so we have to learn our own ways on how to deal with it.

2. The backup mechanism I use is that if my advocate doesn't pick up the phone, I assume he is busy rather than in any conspiracy theory, and send him an SMS about whatever matter I wanted to convey. Sending SMS also keeps a documentary trail in the phone, and one can use SMS backup software to keep the whole history of SMS safe for later use if required. Sending SMS also relieves me of my responsibility in conveying the information to him at the appropriate time.

3. A few days before next hearing, call the advocate if necessary and discuss. For routine hearings, it may not even be necessary if it is understood that both of you will be present there.

4. Combining phone, SMS, and email, one can have a reasonable trail of communication. The email and SMS especially can be useful to prove later that you supplied the information and instructions at appropriate times, in case the advocate didn't take action on them.

Changing lawyer

If one has done all of the above ground work, managing a lawyer is not difficult, and even changing a lawyer won't be a problem. But changing of lawyers should be done only after having a defined trail of communication. If you are changing advocate every year, then probably it's your own expectations that are unrealistic.

There is a kind of fear in many people's minds that their lawyer will not give them NOC (No objection certificate) if they want to change him/her. I find this humorous, since if you read the Advocates Act, it's the lawyers who should be afraid of client taking action against them, in theory at least. A lawyer can have no objection to client switching to another lawyer barring if his agreed fees has not been paid.

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