Re Entry Barriers to Litigation Critical supplementary issues
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Re Entry Barriers to Litigation Critical supplementary issues

Bar & Bench

Kartikeya Tanna further analyses the entry barriers to litigation and adds critical issues on the complications of comparison of salaries to lawyers abroad, vis-a-vis in India with taking into view the purchasing power parity and shows stress on the higher thresholds of entering the profession abroad and the mindset of juniors who enter the legal profession in India.

Kartikeya Tanna has analysed the report by RFGI on the Entry Barriers to Litigation and given additional supplementary issues to the same.

Our legal system, including the hierarchical structure we have adopted from the British in the field of litigation advocacy, is always in the need for a gradually phased reform. One of the critical processes this continual reform entails is to identify, diagnose and find ways and means to introduce consensual need-based measures. This continuing process of reform – a critical part of any field of governance, no less litigation – may not necessarily be brought about by mandatory application of procedures and rules governing litigators; indeed, it cannot. It must rather, to use an analogy in economics, be propelled by a demand push change. This change, usually driven by inevitable market forces and a resulting evolution of practices, must include a conscious change among those participants generally excused because of claims of victimhood – the young law graduates or the juniors. The diagnosis, ensuing prognosis and solutions must not be quack, but rather be extremely mindful of all perspectives of each problem. This article, and I call it a supplement rather than a rejoinder, draws from the recent report on entry barriers to litigation published a fortnight ago. The report, backed by persistent sample surveys collected through admirable diligence, has brought to light several key issues that continue to trouble our colleagues at the Bar with the noble purpose of raising awareness on entry barriers to litigation. There are a few critical supplementary issues that deserve special attention in my shared effort to alleviate some of these entry barriers. They are perspectives ‘from the other side’ and an inward critical thinking that must be a part of any brainstorming in this area. The desired outcome on one hand is to widen the crucial parameters that assist us in arriving at our conclusions to narrow down the differences in dissenting views on the other hand.

Any comparison between legal salaries in India and the West, while does tend to indicate seemingly glaring inadequacies in India, must bear careful consideration on a range of differences, including a significant difference that is contained in the economic concept of difference in purchasing power parity (PPP), that makes such an attempt an apples and oranges comparison. To begin with, there are directly relevant reasons like better standards of legal education that make available well-trained legal minds for selection, higher thresholds of entering the legal profession (Bar exams, Bar Vocational Courses, LPC, Continuing Legal Education and so on), a tighter and strictly enforceable professional liability regime where junior associates can be held directly liable for even minimal professional negligence, the concept of partnership, LLPs or some strategic agreement among arguing counsels or barristers which makes them a part of a collegium with shared income (which then ensures a systematic payment scale to entrants). Even with these differences, a glaring example is the excruciating entry barriers to the vocation of a barrister in England and Wales – a system we have adopted. Apart from the cost of undergoing the Bar Vocational Course for a year, the year after passing it is spent undergoing pupilage (if one is fortunate to find such an opportunity) which only pays, on an average, minimum wages as pupil grant. The grant goes slightly higher, yet modest, only on very rare occasions. After one year of pupilage, the pupil (the entrant) is on her own expected to find clients either by obtaining a tenancy (a rentable space) at one of the barristers’ chambers or simply by word of mouth. Studies indicate that a significant number of pupils do not earn a modest living to support themselves for several years which compels them to give up the dream of becoming a barrister. This gets cumbersome because unlike in India or in the United States, it is not easy to switch between different legal vocations. Some mid-aged barristers engage in additional sources of raising revenues (driving a taxi is one example I have heard in my interaction with several barristers). Entering the litigation field has, by its very nature, been an exercise in accepting the high-risk, slow gestation period, but high-return opportunity. The sheer costs and pre-entry investment one has to make in England and Wales ensures that only the most motivated, confident, ambitious and skillful graduates enter it. The nature of the field of litigation in India is not very different.

In addition to the above reasons, another critical differentiating factor is the difference in purchasing power parity. Rather simply put, this concept means that an identical product or service must cost the same amount in country X and country Y when the amount is expressed in the same currency either way. This concept itself brings out an obviously discernible difference between a salary structure in a city like New York, Washington, D.C. or London and cities in India, even though the worrying rate of inflation in our country is aggressively on its way to bridging the huge gap. The difference in the way of living between the Indian youth and Western youth – particularly, the need to buy or rent a house in Western cities whereas a large portion of the Indian youths stay at their homes in the initial period – must also be taken into account. Any comparison between India and the West, particularly to advocate the lack of favorable standards, does carry a strong appeal to our myopic hurriedness to arrive at a conclusion, but tends to overlook several crucial points. Conducting an analysis of the last thirty to forty years in American history, we find that the attractive salary packages we saw between 2002 and 2007 (I stop in 2007 since they are remarkably lowered down today due to the global meltdown) were only recent phenomena. Furthermore, these attractive salary packages come with a corresponding obligation to work for a high number of billable hours that physically translate into incoming revenues to the law firm two to three times one’s salary; indeed, at times, more. This does translate to longer days at work on several occasions that does bear an impact on social lives and a constant stress to “keep billing clients”.

The other critical issue pertains to the attitudinal patterns of young law graduates – the juniors. I say this with immense responsibility and fully acknowledging the presence of several exceptional juniors across India. These patterns which require introspection and an inward critical thinking are as vital a part of any analysis on entry barriers as any other. I stand on the side of a junior; therefore, I request a sincere and honest reflection on the patterns I mention here. First is the temporal mindset of many fresh graduates whose sole purpose of joining big law firms or law offices or be a junior to a barrister is to obtain an impressive mention on their Resumes for either obtaining admission in a reputed foreign university or being picked up by larger law firms. This mindset, quite easy to sense, dissuades barristers from entrusting higher responsibility in work. The second common pattern one observes is notable differences in the perceptions about “menial work”. Many grievances pertaining to this pattern are fair, but it requires broader perspectives to comprehensively understand this inherently subjective concept. The problem I often see is that young graduates live under the hubris of believing themselves to be fit for arguing a case or being the lead drafter of an affidavit no sooner do they join an office. On several occasions, many traditional barristers require them to assist others in the preparation of a client file or a case file, which is considered a “lowly task”. Often what follows is fumbling and scrambling around for finding answers when juniors are asked a question on an item in the case file by the court they are mentioning the case in. As the standards of legal education in our country improve at a terrific speed and our ability to grasp the finer nuances of law is enhanced, we must not let the cloud of this hubris in our minds thicken.  There is significant merit in undergoing some seemingly “clerical tasks” in order to understand the administrative system of the courts or tribunals in the jurisdiction one is working and to learn from scratch the preparation of a file. The other common pattern is plain boredom or a self-induced short attention span often propelled by distractions. This often results in a similar situation that when judges spring a surprise on juniors by asking them certain facts contained in the case file, they are often clueless. Many other patterns can be observed likewise.

What I want to urge my contemporaries, young budding lawyers, who want to gain experience in their climb up the ladder in this high-risk high-return field of litigation is that regardless of being entrusted menial work – a very subjective notion –,  nothing stops them from reading briefs of matters handled by the barrister or the law office, attempting to discuss legal issues with colleagues, researching the law using paid tools like manupatra or SCC Online or free tools like indiankanoon and taking down notes in a court hearing to reflect upon those notes after the hearing. In other words, gaining experience is not entirely dependent upon allocation of work by a supervisor. There is always that moment when one’s supervisor is perhaps having tea at the cafeteria of a court when one can grab this opportunity to discuss a case and showcase one’s ability to grasp the law. Most of the juniors today are exceptionally equipped in a skill in legal research that most senior lawyers are not comfortable with – the use of technology and internet tools. That skill can be honed to provide the supervisor or senior an excellent quality of legal research in no time. The field of litigation has always been, using another economic term, subject to plain market forces even at a time when ‘license raj’ in industrial sphere was at its peak. There was never intended to be a “protectionist” regime for juniors. If juniors grab one opportunity to showcase their legal skills to their seniors, there is no reason why many seniors will not entrust challenging and substantive work. Juniors saw training or “juniorship” under their seniors as a valuable study guide and an exposure to the field of litigation. Furthermore, there was (and is) no concept of “employee loyalty” in a juniorship. This is because a junior always aims to prepare himself to take an independent flight, be self-employed and a self-sufficient barrister having a clientele at some point of time and an ever growing practice. Some succeed, some do not. Inevitably, those who succeeded and sustained their success kept an ever alert eye on their work and exposure. Seniors – their supervisors – showed them the path to find the key to opening the door of litigation teaching them the tricks of the trade. In my view, money in the first few years as an incentive to join litigation was never devised to be the primary motivator for a budding barrister. What drove this hopeful lawyer was law itself and a confidence in her own ability. Market forces determined where clients would seek their legal representation. Therefore, those articulate and bright barristers who shone under the shadow of seniors developed an enviable career with impressive clientele. Nonetheless, the argument that juniors must at least be paid a minimum respectable amount has merit. However, that will, and can, only be ensured by the same push of market forces that propel one to be a barrister in the first place and not by any set of regulations that guarantee financial or employment security. As I see market forces evolve, the swaying power of transactional law firms, legal units in the companies, businesses, investment banks or financial advisory firms, or even foreign law firms one day will force litigators to either (a) club together and create a systematic organization and, possibly, share income closer to the system followed in the United States (this is precisely how the system in the United Kingdom is slowly evolving today) and thereby have fairer work conditions for entrants; or (b) at the very least, recognize the genuine demands of young graduates and bring about changes in some genuinely unfair aspects as well as on the payrolls.

My point behind this exercise is that if one realizes and accepts that the field of litigation is laissez faire, the change must, in my view, begin with the perceived victims. Implicit in that acceptance is the existence of a natural advantage to those young lawyers who come from favorable backgrounds. I count in this advantaged section even those lawyers who find connections in the legal field through their non-lawyer family members. For example, a chartered accountant having close ties with government officials or who has brought tremendous corporate law business to law offices can, at times, apply more connections than a lawyer family member mostly because professional rivalry amongst lawyers is often intense. A graduate who has genuine love and inclination for law will succeed despite, and in spite, of such family backing. The unfortunate part in a debate is that focusing solely on the comparatively unimportant lowers the value of, and tends to neglect, the important. Among genuine grievances borne by entrants to litigation, highlighting the need for a family background as inevitable tends to extenuate the apparent lack of inclination and enterprise among graduates to learn law as a necessary step to harnessing one’s career rather than performing that exercise merely within the bounds of instruction given by seniors. The attitude that many lawyers had in the 60s to the 80s of “be alert, learn, run and grab opportunities” has quietly shifted to “sit, do only what is told and earn … or quit and find a better place”. The entry of foreign law firms, which is a matter of when and not if, will likely result in two things: (a) the top cream layer of juniors not having family background will be lured with competitive offers; and (b) those family law firms that survive on the brand equity built by earlier generations rather than a continuing innate excellence of the current generation will begin to face the heat though they will not completely wither away. What juniors will definitely miss out on is the personal rapport that is developed in a traditional pupilage and listening to legal gems and pearls of wisdom from the experienced, for the focus in a foreign law firm will solely be on getting more cases and revenues. Nonetheless, whichever side of the divide on foreign law firms one stands on, their entry will ensure that among those desirous of entering the field of litigation, those not ambitious, aggressive and increasingly alert will face a much tougher time. Excuses will be aplenty – the inevitable family background today and the vulture-like foreign law firms tomorrow. However factually correct the bases and however indubitable the existence of these excuses may be, unless we do not consider law itself as the primary motivator, devote ourselves to a greater understanding of the law as we await our move up the ladder, continually evolve ourselves as smart professionals and grab opportunities even if only half out of the basket, we will only continue to be more vocal about the unfairness resulting from advantages of a family background or foreign law firms – two unavoidable facts in this laissez faire and enthralling field of litigation.

Kartikeya is a corporate transactional partner at Tanna Associates, a multi-practice law firm in Ahmedabad. He can be contacted at kartikeya@tannaassociates.com.

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