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In March 2012, Arvindh Pandian was appointed Additional Advocate-General of Tamil Nadu. A few weeks after assuming office, he spoke to Associate Editor, Anuj Agrawal about his journey as a lawyer, the joys of litigation and why the profession might not be everyone’s cup of tea.
Bar & Bench: How did you choose law?
Arvindh Pandian: It was a choice because my father is a senior counsel. Being a part of a family of lawyers, I thought that I must enter law. But I did have my own choice in terms of area of practice.
Bar & Bench: If you had not chosen law what would you have done?
Arvindh Pandian: I can’t really imagine. I was planning to try engineering. My majors were computer science so I thought let me try something in computer science but eventually I ended up doing law.
Bar & Bench: You started your career with Ramamani. How was that experience as a junior lawyer?
Arvindh Pandian: Ramamani is considered to be one of the leading taxation firms. I joined in 1994 after graduating from Madras University. I was there till 1998 as a junior and became a partner in 1998. It’s a very old tax law firm. In fact it is the premium tax law firm as far as south India is concerned. It has produced many top senior counsels in tax and judges over the last 40 years. After that I started off on my own in 2003.
Bar & Bench: What was it like as a junior in Ramamani?
Arvindh Pandian: Phenomenal! I was directly under Mr. K.R. Ramamani, one of the top income tax lawyers. The relationship between seniors and juniors was very good. We were allowed to take whatever work we wanted to do, from the beginning itself. It was Saturday, October 1st in 1994 when I first went into my office. On Monday itself I was given a brief to go to the company court to handle a merger. After that I had a lot of experience on the tax bench, agricultural income tax. Then I was allowed to appear before the Sales Tax Appellate Assistant Commissioners. The freedom given to us was phenomenal.
Bar & Bench: So what do you think is the most important thing at Ramamani’s?
Arvindh Pandian: A lot of patience; I learnt that one cannot succeed immediately.
Bar & Bench: As a company lawyer in Madras High Court, what is the kind of work that you do?
Arvindh Pandian: A typical day would consist of going to the Company Law Board, handling corporate litigation there. You might have merger or winding up matters, liquidation application matters before the Company Court and then maybe some commercial arbitration matters before the Arbitration Court, which is on the original side.
If there are any civil matters having corporate law issues then the same before the court on the original side or lower civil courts if necessary. Apart from this you get into the preparation of pleadings and transaction documents on the non-litigation side. This would be a typical day for a corporate litigating lawyer in South India.
Bar & Bench: How do you choose your juniors?
Arvindh Pandian: I think the first thing you need to be is a person referred through the proper sources, the person must come through a responsible reference. Typically I would look not just at the person’s background but also see the kind of professional background the person had. Of course it is not just based on this alone. Sometimes you can really feel that this person could be a good junior.
There is no straightjacket formula I use while choosing a junior. That may be the case in a law firm where you need to be from one of these law schools or you need to have work experience or have an LLM. In litigation, you cannot have a straightjacket formula.
Bar & Bench: But there must be some characteristics that you look for?
Arvindh Pandian: The main thing, as I told you, is patience.
Litigation is very, very (pauses) contingent. You do not know if you are really going to make it or you won’t. So you should realise that a typical day could be completely without any work. You should be ready to read something or prepare some other matter at that point of time.
A transaction practice works on an hourly billing process. No doubt litigation also works on that principle but that is not always the case. If, on any given day, all your cases are adjourned then how you use the day is also what matters.
Bar & Bench: How do you deal with juniors messing up?
Arvindh Pandian: Maybe you should ask my juniors (grins).
Bar & Bench: The problem with asking juniors is that often they are a bit reluctant to speak
Arvindh Pandian:One th ing I have been doing is perhaps just bursting out at that moment but ensuring that the work continues. But I think you should ask my juniors these questions. Just not in front of me (grins).
Bar & Bench: What is your opinion about NLU’s?
Arvindh Pandian: Very good! In fact, I feel that these national law schools are going to change the litigation practice 20 years from now.
Bar & Bench: But the common criticism is that hardly any of them join litigation?
Arvindh Pandian: No, I feel those days are slowly fading. A lot of [NLU students] are coming here. Although I do not have many juniors from law schools, I did have some interns and they were quite good.
Litigation does not mean you stand up and argue on day one. You typically have to stand up and ask for an adjournment and feel the pressure. [You have] to realise what it means to appear in court. So firstly, I would say, the juniors who joined are completely involved in the research, preparation of the paperwork, background work, strategy; all this is most essential in the initial years.
Bar & Bench: Do you think NLU’s train you better? Anything to sets them apart?
Arvindh Pandian: Well, none of the law colleges provided any special training earlier. All the graduates got grounded when they joined the profession. When they see the seniors around them, experience the practical difficulties and challenges; that is what shapes and guides them.
Bar & Bench: In litigation, do you think having an LLM is an advantage?
Arvindh Pandian: I think nothing can be said to be a negative meaning anything is an added advantage. In litigation, just because you have an LLM, it does not mean a client will give you a brief. Typically speaking, I would recommend that if you get the chance; try to finish all your academic learning at the beginning of your career itself; that is within the first 5-7 years after you finish law.
Later, you might not have the time even if you want to do it. The first 5-7 years are crucial because you can do anything you want. Even if you are a litigating lawyer, you can do your LLM, either part time or even full time.
Bar & Bench: With regard to current practice what is your opinion of this practice of Senior Advocates? Do you think it should continue?
Arvindh Pandian: It must.
Bar & Bench: The reason I ask is that the common criticism is that nowadays, one wants to become a Senior Advocate merely to charge high fees.
Arvindh Pandian: No, I don’t think that is the case. I would put it the other way. There are many counsels who earn much more than a senior counsel. Many firms earn much more than a senior counsel. It does not mean that once you become a senior counsel, there is a separate table of fees for you. It is just that the designation enables him to be looked apart from a regular lawyer. But whether the client would like to engage him or pay him higher fees is absolutely the discretion of the client or the counsel. It is equivalent to the Queens Counsel. (QC)
Bar & Bench: But QC’s have the same criticism levelled at them.
Arvindh Pandian: Well criticism only comes in when there is a certain success rate with regard to the particular issue.
Bar & Bench: When it comes to the administrative functioning of the court, do you think there any changes to be made? Everyone talks about delay, pendency but what are the practical solutions to this?
Arvindh Pandian: Well this changes from court to court. So the process has to be seen in the area where you are practicsng. For instance the Supreme Court now allows e-filing. This doesn’t mean that all High Courts should allow this as well. In particular, the courts of first instance have to be very careful in scrutinising the documents filed.
I think we should give more respect to the practices and procedures prevailing currently. We should not try to tamper only for the sake of modernisation or under the garb of professionalism.
Bar & Bench: And if someone was to ask you how you would reduce pendency or delay, what would you tell them?
Arvindh Pandian: Pendency or delay has nothing to do with backlog or the number of cases. It has to do with the issue of costs. We don’t have the habit of imposing costs unlike the US or the UK.
You know, when I was watching a particular court proceeding in the UK, the judgement was delivered by the Chancery Division judge and there was a huge discussion which was supposed to start post-lunch only on the costs. I did not see the lawyer on the losing side getting perturbed by the decision but he was more concerned about the costs which were about to be considered in the afternoon.
So [imposition of costs] is a huge deterrent in that system.
But in a social set up like ours, if you are going to keep costs as a deterrent then you also have to consider how it is going to affect an ordinary citizen who wants to approach a court of law. I would give the example of a farmer who has a small piece of land. He has filed a case on an equity basis but might not have a case in law.
In such a situation, is he going to be penalised for his ignorance and late litigation? Does it mean that the other side should be allowed to benefit from his ignorance?
So in India, you have to blend both [concepts] and see what happens. Whether costs alone will cut down delay or will it affect the number of cases filed. That is the first part.
The second part is that we always tend to keep blaming each other. I have a feeling that 96% of the work chases 4% of the lawyers. So these 4% of the lawyers do not have the time to be in every court that a client wants them to be in.
Bar & Bench: But isn’t the answer for this is that lawyers should not take up so many matters?
Arvindh Pandian: It is easy to say, but the clients often say, “Please take the brief. We will find the time for you”.
If a lawyer is caught up in ten courts, he can effectively do two cases a day and hence the remaining eight are either adjourned for the next day or next week and so on. The situation of the courts is also similar. If they can only dispose of ten matters in an efficient manner, the remaining 40-50 cases on the board again go for an adjournment. So I think it is a systemic issue and has nothing to do with lawyers, clients, judges as such.
Bar & Bench: So you think that imposing costs might not work in all matters, what about courts granting frequent adjournments?
Arvindh Pandian: The Code of Civil Procedure, 1908 already lays down restrictions but this cannot be implemented. The court itself cannot find time. If you have 20 cases on the board and the judge can naturally do only 4-5 cases, he cannot rush through 20. I would typically say that in almost every issue I have found the justification better than the complaints. So these two words of “delay” and “pendency”…
Bar & Bench: But high pendency is an undeniable fact?
Arvindh Pandian: It is. But, for instance, people in the UK and the US found mediation or arbitration a more attractive option and it is now happening in a big way there. There are two reasons for this: one is the cost of litigation, not just “costs” and two, speed of litigation. In fact mediation is slowly gaining popularity here as well although here it is popular due to its speed. So each system can be used to focus on particular problems.
Bar & Bench: You have written a book on Takeovers and Mergers. How did that come about?
Arvindh Pandian: When I was handling my corporate work in the firm, I was doing a lot of matters related to mergers and takeovers. I started doing the academic work for Ramaiya’s edition of 1997 for that particular area.
At that point of time, Mr Arvind Datar, who is also my mentor, suggested writing a book on that subject. Within a few weeks, Mr. Datar introduced me to my co-author who was writing a separate book at that time. Wadhwa and Co. published the 1st edition in 2002.
Bar & Bench: How did you find the time?
Arvindh Pandian: Let me tell you, in the first few years, I did not have so much work. So I could go to the library during court hours; I could sit down and do my research. The 1st edition was a laborious task but the subsequent editions were more of fine-tuning process and hence it was much easier to do. Also by then you get good hands to support you since people want to get associated with the book.
Bar & Bench: There are allegations in some courts about the “Uncle Judges” syndrome where relatives of judges appear before the same judge. Do you think that this is a problem?
Arvindh Pandian: Well over here, the self regulation is very effective. We do not have a relative, even a cousin, appearing before a judge. It is more to do with awareness rather than enforceability.
Bar & Bench: The Bangalore city civil court recently witnessed an ugly encounter between the police and lawyers. What are your thoughts on this?
Arvindh Pandian: I do not know the reasons behind that event. The Bar does have bad elements coming in but this is true for all professions. When 10-20 people actually do something, and this is magnified by the media, it completely hurts the entire community of lawyers. We have already been painted black throughout the state or the country even.
It is going to take a lot of time to change that.
Bar & Bench: But there is some truth behind being “painted black”?
Arvindh Pandian: Nobody denies this. Every profession is like that. You take the medical profession; there are complaints about organ trade.
Bar & Bench: But isn’t it worse for lawyers to indulge in such activities? Aren’t they supposed to be officers of the court?
Arvindh Pandian: Violation of laws is wrong. Even flaunting is wrong. We need to first self regulate and set an example to others.
Bar & Bench: Do you think the All India Bar Exam is a good move?
Arvindh Pandian: I think we have to wait and see. Whether a bar exam is warranted or not, I do not know. I have not been affected by it personally, so I do not know what are the practical difficulties connected with the AIBE. Having a bar exam is only a filtering mechanism and I don’t think this is required.
Bar & Bench: What do you think is the greatest thing this profession has given you?
Arvindh Pandian: Visibility. Litigation gives you visibility in the profession. I would not say that non-litigation does not. Take the big law firms, naturally they are highly respected. But the litigation lawyers reach that place on their own. There is no system supporting them, unlike the non-litigation practice.
Bar & Bench: Is there anything else that litigation has taught you?
Arvindh Pandian: Yes, and I like to call it my own principle. It is called “Toil versus TOYL”.
The first “toil” refers to your ability to work hard and to persevere. The second “TOYL” represents “Thinking on Your Legs”. Unless you are capable of thinking on your legs, litigation may not be your cup of tea. You may read the law well and you may be thorough. But if you do not know how to react to the judge’s question or perspective, I think you should not be an arguing counsel; you can be a briefing counsel instead.
Bar & Bench: Any advice for students who are thinking about studying law?
Arvindh Pandian: Firstly, law is a very attractive profession whether it is litigation or non-litigation.
The need for good lawyers and judges is very high. I think we need a complete replacement of the current crop of lawyers and judges. The graduates from law schools in the 1990s are only now beginning to enter mid-level lawyers in their 40’s so I think very soon we may see a new generation of lawyers and judges.
So when they change the pattern of thought, the pattern of writing and interpretation of law, that will impress many more young lawyers to take up litigation or practice as such rather than take up a corporate job.
Bar & Bench: Why would you tell students to study law?
Arvindh Pandian: I would put it this way. Luckily the law profession does not have anything like capital investment, except for the books. If you are hard working, you can work your way up. Sure, there is glass ceiling, at least locally, but until you hit the glass ceiling, this is the only profession which allows you to reach there. Whereas in any other business you cannot become the promoter of the company or you cannot become the owner of the company. Whereas in a law firm, you can surely become a partner. Whether you are the rainmaker or senior-most partner depends on your capacity to move thereafter.
Bar & Bench: Moving away from the legal world, I was told that you were quite an avid sportsman?
Arvindh Pandian: I used to be. I play table tennis now and then. Whenever the Bar Association has a competition, I try to take part in it.
Bar & Bench: Do you follow any other sports?
Arvindh Pandian: I follow cricket a bit now. In my school days of course I used to follow it all the time but nowadays it has reduced. It’s a passion. You need to do something you are passionate about and I am not passionate about cricket right now. So if there are some important matches happening then I might watch them but that is about it.
Bar & Bench: I also heard that you are quite an avid traveller. Do you get the chance to travel?
Arvindh Pandian: Not really. I usually travel in the summer vacations and that’s about it. I generally head towards Europe, usually in London. I was in Salzburg, Austria last year. Given an opportunity I was thinking of even settling there. But I know I can’t (grins).