Postcards From A Lawyer...

(Revisit for newer posts.)

Value Of Old Textbooks

A beautiful definition of a structure comes from a very old book: J. S. C. Browne's "Basic Theory of Structures" (Pic 1). In the first sentence, a structures is explained with a key characteristic: it resists loads without deforming itself. In the second, a comparison with a mechanism helps to explain the difference of stability vs. mobility. This old book reminds me of a personal story.

While taking the US patent bar exam, I ran into a hurdle. For parity, USPTO was taking its own time to evaluate my Indian computer science degree. They said, I can take the US' National Council of Examiners for Engineering and Surveying's (NCEES), Professional Engineer examination's Part I (PE-1) if I don't want to wait for degree evaluation. I said fine. They approved my degree as equvivalent later, but it was too late; I had already taken the NCEES exam.

I had not done any math after I switched to law in 1992. Suddenly, after 10 years I was asked to do math of differential equations. Everyone knows, P.E.-I is 50% math of which 90% is calculus. Let's say calculus had a stormy relationship with my grades over the years. It was tempting to rebuild basics using the beautiful book Finney & Thomas' Calculus And Analytic Geometry. But it's a tome! With a full-time job, building pyramids part-time wasn't exactly practical.

How to fix a calculus size problem in a month of study time? An old hobby helped me. I collect textbooks of older generations. Why? Because, a classic is timeless. For example, everyone knows the value of S. L. Loney's Plane Trigonometry. That classic has never gone out of fashion. So I had to find a very old book on calculus.

I found an older generation textbook - a true gem. "Calculus made easy" by Silvanus P. Thomson. This is a cult book of 1910 vintage. The book shows that symbolic manipulation of dy/dx stuff is very easy to solve for exam style problems. The book shuns beautiful theory of analysis and sticks to solving problems. Anyone with a little interest can learn calculus from this book in a few weeks. The opening line on the cover itself makes everything seem easy "What one fool can do, another can". It's the best motivational line I have read; If someone can master something, you too can.

If calculus is easy, rest all is very easy - "What one fool can do, another can".

Links:

1. Thompson's Calculus Made Easy is here: https://lnkd.in/dYCtMkHN

2. Browne's Basic Theory of Structure book is here: https://lnkd.in/dZyNrcwR

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Making A Modern Lawyer

A law student asked me where can I intern to maximise my productivity. This was a different question from the standard one: How to sneak into top firms using "connections" (easily answered with a canned non-answer). Having worked with a variety of colleagues from law, consulting, engineering, and business over the decades in different roles across geographies, I paused for a moment to think about the question with some RAM and ROM scans.

The question was interesting enough to mentally rewind my career and recall the great colleagues I admired working with. Until I had not worked with them, I thought Mihaly Csikszentmihalyi's book "Flow - The Psychology of Optimal Experience" is a work of fiction (sorry, Mr. Csikszentmihalyi).

Samurai (non-historical use of term) of the work world are not the fictional Bigfoot. I have seen such folks at work. It won't be proper to name them without offending other superstars I was lucky to work with. They are all nothing less than artists in their own field. Beyond productivity and getting the job done, these work Samurais inspire others to work far beyond their imaginary strengths (and weaknesses).

While I don't underestimate those who can pull through seasonal productivity spikes in any role, they are not my heroes. I do have some (highly biased) recommendations. Undoubtedly, the answer at the top of the pile is consulting. Work in consulting (e.g., McKinsey) to get a feel of what it means to be "productive". That experience will cover the service economy. Next, work with hardcore manufacturing folks (e.g., ex-GE managers trained in the "six sigma / neutron Jack" culture). Further, work with very sharp lawyers - in firms or individual practices - who can process a large amount of complex data in ultra-short deadlines - a valuable skill for the information age. And in all instances, do some work with someone doing physical labour - on the factory shop-floor, driving tippers on construction sites, near the furnaces and tuning the boiler valves.

There are four common factors among all work Samurais: (1) they are good human beings, (2) they work ethically, (3) they cut-through any argument and situation like a laser (any BS, bluffing, half-baked ideas and love for complexity meant icy "You are fired" feeling), and (4) they love what they do without expecting any validation.

The idea is not to glamorise "hard work" or "toxic work" culture. Far from those idiocies, the idea is to work early in life with those who are fantastic at what they do. There is a world outside law with wonderful people doing wonderful work. I was lucky to work with many such Samurais who taught me life's big lessons. I hope my young friends get to meet their heroes too.

P.S. There is no need to order the Samurai "horo" uniform from Amazon, even if it is available at 90% discount. Don't take the Samurai analogy seriously!

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Slighting

Thinking on your feet is a good skill to have. It comes naturally to trial lawyers.

Slighting is always subtle in the elite circles of high society. At a recent private reception for a few foreign dignitaries, one senior partner of a firm remarked:

"Oh, am glad they are inviting people like you too these days".

"Yes M'am, they are now inviting people like me, ones with intelligence".

P.S.

Don't mess with a trial lawyer, particularly one who is a P. G. Woodhouse fan.

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The Mysterious Footnote

The case of a mysterious footnote:

Section 103 of the Indian Evidence Act, 1872 has a curious footnote. As the footnote to S.103 solemnly explains, the illustration (b) to the section is not present in the original gazette when the Act was published in 1872! How did it make it to the published Act? Perhaps nobody knows after 150 years of the law being on the statute book!?

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Who Let The Liquidated Damages Out?

As I am finishing an article on liquidated damages for an upcoming construction law conference, I cannot help but admire the grand compromise that liquidated damages are as a legal principle. The compromise is such: while the freedom of contract doctrine is largely a theory with a thousand holes, reluctantly the law allows parties this freedom to pre-estimate the damages that will follow upon a breach; but, this very freedom is opposed to the court's province to decide what should be the reasonable quantum of compensatory damages upon a contract's breach and proven consequential losses.

Behind most rules of contract law, there are public policy reasons backed by the learned experience of many centuries. What could be those reasons behind the compromise that is the principle of liquidated damages??

Pollock and Mulla's 1st edition (1905) of "Indian Contract Act" has given twin public policy reasons underlying the liquidated damages principle.?

They are:?

1. Equitable relief against forfeiture?

2. Fundamental unfairness that a large sum is payable for a breach of an obligation to pay a smaller sum.?

Indian courts have, perhaps, battled the first prong more than the second one, equitable relief against forfeiture (usually of earnest money or some deposit or some advance paid in an agreement to sell land). Kailash Nath v. DDA, (2015) 4 SCC 136 also is a case of such forfeiture of earnest money.?

Illustrations (d) to (g) were added to S.74 by the 1899 amendment and illustrate the problem of penalty in liquidated damages that is underpinned by the second public policy reason discussed above. Illustrations (d), (e) and (g) to the S.74 illustrate this principle where a large sum as a liquidated penalty is payable when breach should have usually led to a smaller payable sum. But illustration (f) where upon a default of a loan repayment instalment, the whole sum is payable is not a penalty since the original promise was to repay the whole sum of loan. But contrast this with the slightly different contractual arrangement of illustration (g) where the accelerated payment upon default is a penalty because a large sum is payable compared to the original obligation.?

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The Shortest Legal Opinion

'Legal Opinions' can be tricky. Most are based on a present legal position but several may risk forecasting a legal position. This is a professional hazard with only disclaimers as the author's defence.

Today, I discovered a celebrated legal opinion by a legendary English lawyer F.E.Smith (1872-1930). Background facts are a heady mix of anti-trust and defamation:?

"In 1907 he was asked to give an opinion on a proposed?libel?action by the?Lever Brothers?against newspapers owned by?Lord Northcliffe?concerning the latter's allegations of a conspiracy to raise the price of soap by means of a 'soap trust'.?

He checked into the?Savoy?and, after working all night reading a pile of papers nearly four feet thick and consuming a bottle of champagne and two dozen oysters, Smith wrote a one-sentence opinion: "There is no?answer?to this action in libel, and the damages must be enormous".?

The newspapers subsequently paid Lever ￡50,000, more than four times the previous record for a defamation action or out-of-court published settlement in the country."?

(spacing supplied; Source: Wikipedia on F.E.Smith)

Credits: Inset image credit: By Leslie Ward - Vanity Fair, 16 January 1907 (Wikimedia, public domain) Wikipedia cites udgment in?Cox v. MGN Ltd?[2006] EWHC 1235, §?32 (Eady J) for the quote. It's available here:?https://lnkd.in/drHC5AFC?

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Catharsis

CATHARSIS IN ARBITRATION & LITIGATION?(November 2022)

Disputes generate angst, but inability to assert legal rights generates despair. Litigation and arbitration are hardly considerd modes of catharsis. But having rights and then being unable to assert them generates deep insecurities in life.?

In practice, when litigants or parties in arbitration have had a full, fair and timely opportunity to assert their rights, they experience a vindication of rights. They feel a deep, wholesome catharsis - even when they don't win fully. If rights are important in civilised life, ability to assert the rights through a court or arbitration is life affirmative.?

Litigation and arbitration may have many (perhaps too many) faults, but their ability to vindicate rights, a very marker of civilised existence, is unparalleled. All other compromise mechanisms are also effective, particularly when the bargaining power of parties is about equal. Until legal rights are the centre of civilised life, litigation and arbitration will be primary modes of dispute resolution across the world.?

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Day in Court

Francis L. Wellman's book "Art of Cross Examination" published first in 1919 is the standard book on the topic. Nothing else has matched its popularity. Interestingly, he has written another book called, "Day In Court" with an alternative title "The Subtle Arts of Great Advocates", which has his insights and observations of lawyers he knew or saw at work. It's a slim volume.?

Being published in 1910, it's out of copyright jail and available on Archive . org. It's from a time when transactional lawyering was coming up as an alternative to courtroom practice in United States. In both his books, he laments the decline of trial skills with the rise of "business lawyer" who is never seen in courts.?

(Access from Desktop computer - link may not show properly on mobile)

Day In Court link: https://lnkd.in/djEFzqJB?

(For those looking for Art of Cross Examination's link: https://lnkd.in/dEexr6tQ)

P.S. Everyone has a story about how they discovered Wellman's "Art of Cross Examination". Mine is such. I discovered this book in circa 1999 just out of law school in a Christian theological bookshop called "The Examiner Press" (now shut, in Dalal Street, Fort, Mumbai). They didn't stock any law books being a religious book's store. But this one must be there in their stock since it was about "cross"! But for their apparent error, I would not have discovered it back then. What serendipity! I still have that 1999 copy with me, but the pages are all deep yellow after ~24 years.?

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The Six Great Advocates

?Lord Birkett's "Six Great Advocates". I bought this slim little book in my 2nd year of law school (1997) from a used book seller in the Fountain area of Mumbai. Lord Birkett describes in brief lives of six great advocates, all six being great trial lawyers. It has remained a trusted companion for now over 20+ years on my bookshelf.?These six greats trial lawyers being:

1. Sir Edward Marshall Hall, KC

2. Sir Patrick Hastings, KC

3. Sir Edward Clarke, KC?

4. Sir Ruffus Issacs, KC?

5. Sir Charles Russel, QC?

6. Thomas Erskine?

And it has an essay "The Art of Advocacy" by Lord Birkett himself.

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A Strawmen Argument

A 'Straw Man argument' is a logical fallacy. The Straw Man argument essentially distorts the position of the other side and then seeks to reply to that distorted position. The Bombay High Court judgment in AJAY KUMAR GARG v. AVYAAY ANIRUDH (Bom. HC 2022, 2 JJ) recently flagged a 'Straw Man' argument in the context of inheritance of ancestral property and partitioned share of property (see picture below). The defendant here reframed the plaintiff's claims in the plaint to seek its return under O.7,r.11 of the CPC.?

There are interesting examples of Straw Man arguments. One of them on a website Your Dictionary is about teenagers:?

"Teenagers are experts at straw man arguments. As they learn the ins and outs of adult conversation, teenagers experiment with controlling the direction of a discussion. For example:

Parent: Your curfew is at 10 pm tonight.

Teenager: But the party doesn't even start until 9:00.

Parent: It's a school night, so you need to be home by 10:00.

Teenager: You just want me to be unpopular! You don't care about my happiness!

Anything that gets an adult off of the main discussion would be considered a win for the typical teenager. If the parent's next comment is defensive, such as "I do care about your happiness," the teenager has successfully turned the conversation away from the undesirable curfew time. With any luck (and some rhetorical skill), they may be able to guilt their parent ?into an even longer curfew."

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Chinks In The Expert Witness' Armour?

Finding a few chinks in the armour of an expert's knowledge is a sweet pleasure for a cross-examiner. And no expert is expert enough to not have *any* chinks in their armour is the hope a cross-examiner lives by.?

Since last time when I had cross-examined a Chartered Accountant in a construction dispute, I have felt that I should know more about how the regulatory and conventional practices cover construction accounting. The reason being that usually the financial systems are more robust due to audits than construction document management systems unless run by someone really experienced.?

Another unique feature of financial records is that they are already quantified in monetary terms! It's a goldmine to prove damages. But their context is limited to tracing routing of money under the common heads of assets, equity, liability and capital. It needs some work via pleadings and evidence affidavits to link this quantified flow of money to the contracts, performance, causal links and losses / profits.?

There is one story of a project in correspondence, contracts and site reports, there is an entirely parallel but at times different story of the project in the financial records. Being audited by a respected member of a licensed profession like CA and having inbuilt, systemic correctional systems, audited accounting records always have a high rational probative value in the mind of the judge or an arbitrator. Any wonder that so many CA certificates and valuations keep floating around us!?

In discovery-a-day section, I learned that there is a separate accounting standard for construction contracts - Ind AS 7 from MCA's website -?https://www.mca.gov.in/Ministry/notification/pdf/AS_7.pdf

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Ages of Law

Image Credit: Blake Weyland?on Unsplash.

In 20s:

One needs to have people skills to engage with older people to learn from their knowledge, experience and wisdom.?

In 30s:

One needs to have people skills to engage with equally intelligent or more smarter colleagues and also older people to learn from their knowledge, experience and wisdom. Lay a foundation for mental flexibility to engage with newer ideas and methods.?

In 40s:?

One needs to have people skills to engage with older intelligent folks AND younger intelligent folks. From older folks one can learn from their knowledge, experience and wisdom. But from younger intelligent folks, one can learn a new way of looking at the world, newer interpretation of older ideas and completely novel ideas. Start developing humility to learn and work with younger folks smarter than you. And it is quite hard to do the right stuff in 40s, because inertia is already worshipping the God of status-quo!?

In 50s:?

What to do in 40s should continue but with far more younger people to learn from than older people. By now, one is 50+ and has a lot of knowledge, experience and wisdom to pass-on to younger folks in a gentle way. Again, lot of humility and patience needed for those 50+ to work with a large pool of younger colleagues.?

In 60s:

Take a backseat to admire something you helped to create in people, organisations, values, capital or ideas. There will be mostly younger colleagues to engage with in one's 60s. One will need a lot of persuasion skills and patience to communicate ideas across properly. Rigidity will only accelerate the enviable end.?

And from there on when you stop enjoying what you are doing,?

please retire!?

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Challenge of Updated Statute Texts

There is a problem with non-updated statute texts in India after amendments done via notifications. Not even Indiacode takes responsibility for the accuracy of online statute texts, nor any private publisher - you are using their statute texts at your own risk! The problem is chronic when a constitutional court strikes down a section of a law, the Govt. keeps printing the statute text without deleting the struck down section.?

This problem became famous by the judgment in Shreya Singhal v. Union of India, (2015) 5 SCC 1, that struck down Information Technology Act, 2000's Section 66A ( Punishment for sending offensive messages through communication service, etc.). Yet, the section continues to be on text of the law available on Indiacode and in print. Even arrests continued under this section long after the Supreme Court struck it down.?

Here is an another example. Maharashtra amended Indian Partnership Act, 1932 by an amending act: Amended by Mah. Act. 29 of 1984 (w.e.f. 1-1-1985). A key amendment in that amending act was to S.69 regarding suits by or against unregistered firms. A S.69(2A) added by the 1984 amending act barred a suit for dissolution of an unregistered firm or to realise property of an unregistered firm.?

The S.69(2A) was struck down as unconstitutional by the Supreme Court's judgment in V. Subramaniam v. Rajesh Raghuvandra Rao, (2009) 5 SCC 608. But even Maharashtra Govt.'s official online copy of the Indian Partnership Act, 1932 with Maharashtra amendments updated on 26 November 2014 includes the S.69(2A) that was held unconstitutional way back in 2009. I haven't been able to locate any online official text of that Act published after 2014. Maharashtra's Registrar of Firms under the Partnership Act, 1932 has a 2006 scanned copy on its website!?

See:

V. Subramaniam v. Rajesh Raghuvandra Rao, (2009) 5 SCC 608 at page 616:

"31.?Since in our opinion sub-section (2-A) of Section 69 as introduced by the Maharashtra Legislature clearly violates Articles 14, 19(1)(g) and 300-A of the Constitution, it is in our opinion ultra vires and is hence declared unconstitutional. Consequently this appeal is allowed and the impugned judgment of the Bombay High Court is set aside. The suit can now proceed ignoring sub-section (2-A) which we have declared invalid. No costs."

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My First Dictionary

One always remembers the first things in life. They are like tectonic events in the personal history. This small dictionary was the first dictionary I had ever used in my life.?

The ‘Progressive English Dictionary’ was published by the English Language Book Society. This was published in 1961 as the ninth impression of the original in 1952. The price was Rupees 1.40. I think my father had purchased it.

The benefit of starting off with a small set of core knowledge was the great gift of this dictionary. I learnt almost every word defined in this dictionary. This gave me a core set of vocabulary to build upon later in my life. But most importantly this dictionary taught me how to learn new things in life.

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Learning To Write

Image credit: Wikipedia. Rolls-Royce Phantom IV (1950–1956).

A car can be a utility or a luxury. A car journey can be a pleasure or chore. Writing is quite similar.?

A basic car can transport you from Town A to Town B. Similarly, ordinary writing can do the job of transporting ideas. A luxury car journey from Town A to Town B with the finest experiences enroute, beautiful company and smoothest ride make a memorable journey. Great writing is like that luxury journey, which makes ideas and emotions behind those written words, a cherished pleasure to remember for a long time.?

It’s worth learning how to write well.

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Pleasures Of Studying Law

Many pleasures of studying law are in the endless discoveries one makes on the journey. Last week at a bookshop, I was flipping a book titled, "The Law of Judicial Precedent". Bryan Garner and a host of contributors together had published this landmark book in 2016. Garner describes it as, "The Law of Judicial Precedent is the first hornbook-style treatise on the doctrine of precedent in more than a century." I wondered why no book on this topic was written for a century when stare decisis is the bedrock of common law! And who wrote the one before a century??

In the preface of his book Garner says the last major American effort at such a "Hornbook" style treatment of law of precedents was by Henry Campbell Black way back at the end of 19th century (2nd edition in 1902). Garner's says this was written in the golden era of American legal hornbooks.

Something clicked there! Henry Campbell Black was the original author of the Black's Law Dictionary starting in 1891. Garner is the current editor of the same Black's Law Dictionary, now on its 11th edition.

A bit of searching on archive.org revealed various old books by Black. And there it was, the century old American book on judicial precedents, a two volume commentary titled, "A Treatise on the Law of Judgments" by Henry Campbell Black. (Download links are below.)

Black was a remarkable person having written definitive "handbooks" on federal taxation, bankruptcy, constitution, water/riparian rights, liquor and removal (civil procedure). This apart from his namesake Black's dictionary! But Black's even more remarkable book is a 1916 one on recession of contracts in two volumes titled as, "A treatise on the rescission of contracts and cancellation of written instruments". This is indeed a unique book on a rather obscure topic! All these are available on archive.org.?

Amazon link to Garner's book: https://lnkd.in/e-Q9sbB8?

Archive.org link to Black's book on precedents:

Vol.1 - https://lnkd.in/eaPqEUFi?

Vol.2 - https://lnkd.in/eeUKKZmJ?

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