The rainbow of litigation and the scourge of the unpaid invoice

The age of forty is a milestone, I was told. It will be the age when you will know whether you’ve made it in litigation, or whether it’s time to forage around for alternative career choices.

A knowledgeable senior possessing engorged teabags under his eyes and just the right amount of grey at his temples told me this. I was an impressionable fresher at a tier 1 law firm in 2010, and he went on with great equanimity that 40 is the magic number when you are finally free of mortgage payments for your first house. You would have paid off EMIs for an extravagant car, would have made partner/would be getting briefed by law firms to appear in cases, and judges would have gone beyond addressing you as “Mr. Counsel”.

He drawled on confidently about how 40 is also the new 20 in personal life – its that time when spouses get sick of you, having been married to you since the days you were broke. By then, your children duties are palmed off on tutors who tute your cherubic kids, who physically distance from you automatically because they are at that age when parents equal social embarrassment.

You are now once again a free man to choose to run marathons, or to pick up a hobby you can talk of over Friday night drinks at the Gymkhana, and enjoy all that a fit body, a heavy pocket, a parent/spouse/child-accountability-less life can show you.

As he drawled on, my mind wandered off to this mirage, and I was happy- happy that there was so much to work for, and bloated with the knowledge that I had time. Forty was far away. Seventeen years away to be precise. Even Lord Rama had changed his status from a vanvaasi to the King of Ayodhya in fourteen years.

I spent the next couple of years pontificating this magic age of forty to anyone who would care to listen. That friend who got sick of a prissy boss at his law firm – I would tell him to give litigation a chance (“You will have time to find yourself”). The girl I just met at a dive bar who was sick of a Rs 10,000 a month retainer with a senior advocate who made her work 84 hours a week would be told to stick on since “Forty will likely see you happier than you were when you were eighteen”.

I wish I had someone tell me how it’s not all that linear. That forty will creep up on you like a flu, and that you will either have calcified in your cocoon that is your chamber, or would have reached a point where everything is glass-half-empty. That is, of course, for those who have realized that litigation is for them, but that there is also Indigo, Blue, Green, Yellow and Orange between the Violet and the Red.

So here I am – not forty just yet, but not that far away from it. I hope I spend the next seven years towards the Violet, and that I find myself far away from the Red. I also think it’s time to look back and reflect, because that is what one does when time is aplenty, and briefs are afew. Many things spring to mind, but that which tugs at the heart is the subject of recoveries.

Recovery of fee, to be precise.

Something that isn’t written about very much, but is felt by everyone (at least those who are what are known as first-generation lawyers), is the sheer capital that goes into setting up an office. There is the monthly rent or the monthly EMI, the retainer fee to the juniors, the monthlies to the clerks and to other staff, and the salaries that inanimates command (photocopy machine rent, internet cost, telephone cost, electricity and water bill, paper bills, society welfare bills).

The first of every month is a day when bank accounts sometimes see debits larger than the sum of credit entries over the past 29 days. And this is during months which are not affected by a vacation or a half. But even then, bank accounts see retainer sums come by and say hello, and the rare vacation appearance give a high-five.

And even then, fee-recovery is a problem which plagues us. This ubiquitous worry, at the germination of a young law firm, or in the dawn of an independent litigator, is more regular than one would like, and is more frustrating than one would give it credit for.

Between the ages of 23-40, it is hard to command a fee. Advance payments are rare, and invoice clearances within a week (actually, a month) are rarer. Pro bono briefs and the romanticized appearances that accompany them with a splash of media coverage are all very good, but one isn’t going to give her clerk a newspaper cutting at the end of the month.

During the initial years, it is difficult to say no to a client who obviously has the means, but is the kind who would ask the car-park manager for a discount. It is also difficult to say no to a solicitor, or to a fellow colleague who promises a fee, and extracts work months on end with that dangling carrot. And then comes the discount on the multiple accumulated bills, which may not seem like that large an amount had all of them faced their maker at the time when they had been naively dispatched.

Many young litigators who start off with champion fitness and agile mental health, move over to law firms or to in-house roles because the grind is too hard. The years of litigation see expanding waistlines, and depressing mental well-being. It is hard to be in court from 9:30 to 4:30, to run around carrying briefs, to ensure urgent listings, to face irate judges and inexplicably short-tempered court staff, and to apologize to clients at the end of the day.

Which really has not ended because there are meetings with clients for the next day. Drafts need typing out, and researched cases from the morning need printing for the next day. It is harder to come back to a home with a dwindling bank account, and yet another day wondering when all the promised on-paper fee from the hard day of work is going to present itself.

There are some tips one learns on the way – ensure regular invoicing, call upon your clerk to regularly and politely follow up with clients on expenses, if not fee, and to identify the softer clients that you can guilt into paying. Write – write for magazines or newspapers who tend to have a per-article honorarium.

But none of these tips take into account the disruptor that is COVID-19.

COVID-19 has seen our clients call us worried over payments to their employees, about lay-offs and other obligations. It has seen them wanting to extricate themselves from commercial commitments which now seem like financial quagmires. Sometimes, the schadenfreude pops its head up from the cracks in our heads, but it subsides as soon as realization dawns that our fee is at the bottom of the pecking order even in these times.

It is particularly hard on those who have just started off their chambers, or have just inaugurated law firms. Because the surplus capital has largely been spent in the inauguration, and there are now bills from a month and a half of ennui. There is also the looming fear of courts not re-opening in full capacity for another month, given the recent scare in the Supreme Court.

So here’s a request – if you are a client, a solicitor, or a colleague who has someone else’s invoice pending with yourself, clear it. Clear it if you can because the invoicer will be grateful for anything coming her way right now. And it’s also because the invoicer isn’t seeing much work coming her way that can be further invoiced this month. And also because really, the work was done, and it is your duty to pay for availing of such services.

In mid-2019, I witnessed a proceeding instituted by a lawyer for recovery of fee from a presumably former client in the court of the then Ld. ACMM (South), who is presently the Ld. CMM Rouse Avenue. After some hearing, the lawyer was castigated by the Presiding Officer, who told him that law was a noble profession, and that even he had once been a practicing lawyer.

The learned judge reminded the delinquent lawyer that the gowns we wear as advocates come with a pocket at the back, known as a money bag. The money bag exists because historically, advocates were not to know how much fee they were getting paid, but were to turn their backs to fee, and perform to their fullest capabilities irrespective. At the end of the hearing, clients were to deposit this fee in the money bag, which amount would only later be known to the advocate. So fee, after all, is the least of the lawyer’s concern. As we are told in theory. And as we see pan out in practicals.

Paying those invoices on time would help that the nobility of the profession continues, and that the best among us stay on, despite the lure of cushy monthlies from an in-house or a law firm. Because we want them to reach the age of forty and see the Violet and not the Red.

The author is a Delhi-based advocate.