Before the jargon: First principles as a tool of litigation strategy

One of the more useful things I have learned in litigation is simple. When a case begins to feel overwhelming, go back to basics. No tricks. Just first principles. This has mattered most in technical subjects, where the vocabulary and jargon reach you before the dispute does.

Let me say at the outset what I do not mean. I do not mean principle instead of authority. We work under Article 141. First principles are not an alternative to precedent, they tell you which precedent you need. Harder still, they tell you when to stop reasoning.

By first principles, I mean something quite ordinary. Before I open a judgment or learn the special terms, I ask a few plain questions. Who claims what right, against whom and under what legal relationship? What breach is alleged? What relief is sought? Who has the burden and on what facts? These questions get lost the moment jargon appears and we reach for the comfort of citations. Once I have answered them, I know what I am looking for in the case law.

My late senior, Mr Amarendra Sharan, made this point better than I can. Over lunch, he would tell stories from court. In one, counsel kept repeating, “My Lord, I am covered by so-and-so judgment.” The bench smiled at first. Then it stopped smiling. The impatience was fair. “I am covered” is not an argument. It is a conclusion. If you cannot say why you are covered and on which facts, you are throwing case names at the court and hoping one lands.

There is an opposite mistake and it is worse, because it looks like hard work. Counsel reasons carefully from the statute and the record, and does not notice that a bench has already decided the very point against him. Arguing principle against a binding judgment is not honesty. It is a polite way of losing. So the question is not whether to reason or to cite. The question is where the line falls.

My test is unglamorous. Is the proposition I need already decided, at the level of generality I need it? If it is, I cite it. If the authority is one step away, because the facts differ, or the statute differs, or the line I like is really obiter, then that step has to be argued. No amount of citation will argue it for me. Most of the cases I have seen go wrong went wrong because someone mistook the second position for the first.

I saw the discipline done properly in a Meghalaya matter on coal mining and the reach of the Sixth Schedule. The senior advocate leading it made us read the constitutional provisions and the statutes slowly, line by line, before anyone opened a judgment. That meant sitting with paragraph 9 of the Sixth Schedule and asking what it actually does. It deals with the share of royalties made over to a district council. It does not deal with the power to grant a lease or to regulate a mine. The Supreme Court later held that the Sixth Schedule does not displace the Mines and Minerals (Development and Regulation) Act, 1957 in Meghalaya: State of Meghalaya v. All Dimasa Students Union (2019). The answer was in the text all along. The judgment confirmed the reading. It did not produce it.

Nowhere is the habit of hiding behind labels more visible than in construction arbitration. These matters come with a long vocabulary: delay, disruption, escalation, variation orders, liquidated damages, extension of time, expert reports, charts, formulas. Take the vocabulary away and most of it is familiar ground. These are contract disputes, governed by contract law. What did the contract require and in what order? Who performed and who did not? Did one side prevent the other from performing as agreed? If so, what loss followed and can it be traced to that conduct rather than to the contractor’s own choices or to the market? Answer those questions and the jargon of “delay disruption prolongation” loses its mystery. It is a claim that the job took longer because of the other side’s fault and that the delay cost money.

The formulas are the same story. Mention Hudson or Emden and a good many of us go quiet. I did. It sounded like mathematics; it is not. Both are ways of measuring one familiar loss. A contractor stuck on a delayed project loses the profit and the overhead it could have earned somewhere else. Hudson starts from the tender. The contractor priced in a percentage for overhead and profit. Its case, in effect, is this. You kept me here longer than agreed. You stopped me earning that margin elsewhere. Pay me that percentage for the extra period. Emden starts from the business as it stands. What does it cost to run this contractor’s establishment today and what fair share of that belongs to the extended period?

So the formulas are not doctrines. They answer a first principles question. What has the delay cost and is that loss legally attributable to the other side? This matters for strategy. If I begin with Hudson and Emden, I will end up arguing arithmetic. If I begin with what my client lost and why the other side should bear it, the formula follows the argument instead of standing in for it.

Electricity law looks different and behaves the same. “Aggregate revenue requirement”, “true-up” and “wheeling charges” are terms that are enough to make experienced litigators switch off. They should not be. Aggregate revenue requirement is the total a licensee is allowed to recover from consumers in a year: its permitted costs, plus a return. A true-up is the reconciliation later. The licensee projected costs, the year happened, and the gap is settled in a later tariff. Wheeling charges are what you pay to use someone else’s wires to carry your power. Translate the terms and the real questions appear. Does the statute or the regulation permit this recovery at all? Is the allocation between consumer classes rational? Has the regulator stayed inside its own remit?

In my day-to-day criminal practice, first principles have earned their keep in bail. The instinct in a contested bail matter is to open a database and collect judgments on parity, gravity, long custody, recovery and the rest. I have done it. An hour spent working out what the case really is beats three spent collecting authority.

The considerations in bail are not obscure. Presumption of innocence. Whether custody is genuinely needed for the investigation or the trial. Flight risk. Risk of tampering with evidence or influencing witnesses. Likelihood of repeating the offence. And proportionality: continued custody measured against the stage of the case and the likely sentence. Once I am honest about which of these is carrying my case, the choice of authority follows almost by itself. If my strength is the length of custody, I have no business leaning on parity with a co-accused. If the live problem is flight risk, because my client has already breached conditions, judgments on delay will not rescue me. The analysis does not replace precedent. It tells me which precedent is mine.

None of this is an argument against specialisation. Construction arbitration, electricity regulation and a criminal trial each have their own culture, documents and traps. You cannot bluff your way through any of them and the system would not function without case law. But precedent as a crutch is one thing. Precedent as support is another. When I catch myself saying “I am covered” too early, it usually means I have skipped the harder work. That work is saying, in my own words, what the case is about and why I should get what I am asking for.

Courts want this more than we assume. A judge hearing a “technical” dispute does not need the jargon. The court needs the shape of the dispute first. What is really in issue? Which provision or principle does it turn on? What follows, concretely, if one side is right and the other is wrong? Once that is on the record, complexity can be added where it is required. Expert evidence, formulas, tariff orders and long lines of authority all have their place. They are far easier to follow when they sit on a structure the court already recognises.

Looking back over the past decade, the cases that taught me most were the ones that looked worst at the start. Thick paper books. Heavy bundles. Specialised language. Difficult opponents. My first instinct was to answer in kind, with more jargon and more citations. It took time and some not especially gentle nudges from mentors and from benches to see that most of that was noise. Hard cases do not get easier because we describe them in harder language. They get easier when we make the problem smaller and build the argument up again. Then, knowing which authority we actually need, we go and get it. “I am covered” can wait until it has been earned.

Shaurya Sahay is an Advocate-on-Record and Standing Counsel for the State of Uttar Pradesh.