Preventing brain-drain in the litigation sphere: How do we make things easier for young lawyers?

A few days back in Court 27 of the Delhi High Court, a lawyer appearing in a case stood on the side usually reserved for the respondent, and hesitatingly requested that the case be adjourned since the “main counsel for the petitioner was not available”.

On the judge asking who the lawyer seeking an adjournment was appearing for and what the case was related to, the lawyer unfortunately didn’t have much to say. Perhaps realizing that things would be uncomfortable if the lawyer was pressed, the judge graciously looked at the file before them, and simply adjourned the matter as requested.

At the end, however, the judge inquired the date of enrolment of the lawyer appearing before him. Pat came the reply – “August 3, 2023”. Instead of an admonition, as has often been par for course in these situations, or something along the lines of “at least read your files before coming to court”, the judge simply said, “Welcome to the bar!”

It felt refreshing to have a High Court judge say that, and to not admonish the young lawyer.

This took me back to 2010, when I had just graduated and joined the disputes team at a firm. I inveigled myself into my first appearance, by seeking out a brief from another team for a case in Tis Hazari, which no one really wanted to visit on a humid and rainy August morning.

Appearing for the plaintiff in a mosquito coil infringement matter, I sought out counsel for the defendant because both of us were to take an adjournment. Lo and behold – it was her first appearance too. With my heart thumping, I just about managed to not address the judge as “uncle” instead of “Your honour,” and we made our way out of court. How we settled that case is another story – counsel for both parties prevailed over their clients to settle than to have to trudge to Tis Hazari for hearings far away from their cozy law firm office spaces in posh South Delhi.

I was, of course, lucky. My first few appearances involved only the sweetest judges who would try to remember counsel by their names, congratulate young counsel for well-made arguments and guide young counsel on what could have been argued. Small gestures by judges like addressing young counsel by name go a long way in making a client sitting in the back row believe in such counsel.

I was brought back to 2023 by my colleague reminding me to speak to someone for a recommendation for their LL.M. application. I’ve always wondered – why LL.M. when one wants to litigate? For someone who has not done a Master's degree, I sure have an inexplicably strong opinion on why it makes no sense to pursue one.

The high costs to pursue and live through an LL.M. could rather be used to set up an office. If one already has clients, who takes care of their troubles over the year of absence? Then there’s the gap-year conundrum. What does one do when they come back? Join a senior/law firm/ set-up practice (all of which you could have done anyway without the LLM)?

But a former colleague of mine and a close friend of theirs who went for their Master's in 2020-21 have stuck it out fairly happily in the United States after their year of study ended. One, in fact, is moonlighting a fledgling career in stand-up, while being gainfully employed in a litigation firm in New York. The other is happy doing rights-based work with a human rights and fair trial watchdog.

What is common to them and other fledgling litigators formerly practicing in Indian courts I know who have done a Master's and decided to work abroad is this – there is better pay, better work-life balance, better air and, most importantly, the system is geared to making things easier.

There is an easier way to commute, the chamber setting up costs aren’t as high, courts have more facilities (toilets, internet, mental health awareness, better day-management with almost no day spent waiting all day for a case to be taken up, and many other things).

This isn’t restricted to just former young litigators who have stuck it out in the countries where they did their Master's (which isn’t a high number, given the severely low employment opportunities). A chunk of my present chamber is interested in pursuing a Master's degree – not as a CV embellishment, but because litigation in Delhi is “so hard”.  

But for the scores of litigating lawyers who either can't afford to do an LL.M. abroad or choose not to pursue one, what can be changed to make their lives better in Indian courts? What do judges have to keep in mind when they come face-to-face with a seemingly underprepared young counsel?

Facilities in courts

The Supreme Court, only just in July 2023, introduced free Wi-fi. The need for ready internet access in a world of SCC, Westlaw, Manupatra and court websites, cannot be underscored enough.

But even just prior to the COVID-19 pandemic, juniors would often be queuing up outside the internet room next to the consultation room or the library to access the net and garner prints. The Delhi High Court, across its many buildings, offers complementary Wi-fi for 30 minutes, and does not have adequate or subsidized photocopiers or printers within its building. Juniors, clerks, or interns often run relay races with last-minute printouts obtained from cubby holes in lawyers chamber blocks, only to be shouted at by their seniors because the matter is already over.

Bar associations must work to ensure that the most basic needs of young litigators – access to adequate printers close to court rooms - is addressed. So when Your Lordships reprimand a junior for not carrying prints, or photocopies for the other side, please know that the infrastructure for last-minute requirements in courts is lacking.

Your Lordships may also consider accessing cases from your computers in court to avoid over-reliance on physical prints. The late Justice Valmiki Mehta would readily have his laptop open with SCCOnline to counter submissions, much to the fear of counsel who would otherwise bandy about names of cases without checking the latest law on the aspect.

Chambers

Then there is the aspect of lawyers' chambers – a fiefdom of the pedigreed, or that of the lawyer-turned-landlord. Most lawyers occupying chambers in the lawyers' chamber blocks themselves work out of offices in Jor Bagh/Golf Links/Sunder Nagar or Lutyens Delhi and nearabout.

Their chambers (which have stayed within the family for generations) are underused. Conferences are held in the actual offices post court and are utilized more as lunch-rooms or waiting areas than as actual office space. The young litigator who can barely afford to share rent for a basement in Jangpura ought to be given priority, if not access, to chambers within the High Court. This can be achieved by the creation of an entire new co-working space block by demolishing the existing chamber blocks, or by re-allocation of the chamber system.

This is even more so because the extreme weather in Delhi often requires young litigators with no cars to stock raincoats, umbrellas, lunch boxes and water bottles. They are seen trudging to court and scurrying about to find safe spaces to house their goods. So when Your Lordships find a junior who is not very well prepared, please remember that the reason for lack of preparedness is not always laziness. It can also be baggage from not having had a break from chores, and not having a set up conducive to practice.  

The court commute

Bar associations must also consider transport inter-se courts. Young litigators and chamber juniors spend a considerable amount of money and time in commuting from one court to the other. Regular air-conditioned destination buses at subsidized rates between district courts and the High Court/Supreme Court, and some popular tribunals, should be considered. Litigators in the Delhi High Court were treated to a larger canteen space in July 2023, which is most appreciated. Perhaps utilizing the much larger space available in the new state-of-the-art auditorium block should be considered.

So, when Your Lordships refuse a passover or refuse to take up cases because the lawyer was not there on first call, please know that the individual who came late possibly reached the Malviya Nagar metro station well in time, but the last mile shared auto to the Saket Court was refusing to move without filling up his maximum quota of passengers.

Public admonitions

A judge once told a former colleague of mine in court, as I arrived slightly after the case was taken up, something along the lines of “accha hua aap pahunch gaye. Maine inke aasoon nikaal diye the” [It's a good thing that you turned up. I was making your junior cry]. Far from being something to boast of, statements like this can potentially kill one’s confidence to ever enter a courtroom full of people and address arguments again.

Admonitions in court can be traumatic, not just because one’s failings are being exposed in a courtroom full of lawyers and clients. Sarcastic ad-hominem ('When we were your age, we would not enter court without reading a file/even law students are aware of this and you are not/at least make sense of the facts if you don’t know the law') often scar one’s mental health in ways that can do permanent damage.

Judge Karpaga Vinayagam, as Chairperson of the Appellate Tribunal for Electricity (APTEL) back in 2011-12, would make junior counsel begin submissions and would guide them through the file. When their seniors would turn up, Judge Vinayagam would request the senior to take a seat and congratulate the junior on arguments well-addressed.

Fillips like this are well-remembered, and ensure that such junior counsel are noticed by even the counterparty and their lawyers. Of course, if junior counsel did a fabulous job themselves without prodding from the bench, the judge would tell the senior to let such counsel argue on future dates as well. Present Chief Justice of India DY Chandrachud, and former judges Justice Dinesh Maheshwari, Justice S Muralidhar and Justice Mukta Gupta, have all encouraged young counsel in court, and have allowed them audience without discrimination.

On the other hand, there are judges like a certain Chief Metropolitan Magistrate in Delhi, who routinely takes pride in insulting young lawyers and finding ways to diminish their confidence. It is this very attitude that is anathema to a young litigator who routinely faces systemic challenges, and the last thing they need is a judge taking pleasure in pulling them down.

Pay

The elephant in the room needs to be addressed - there is low pay with no guarantee of success or a linear progression in litigation. With retainers between ₹1.8-3.6 lakh per annum being the norm in Delhi, and with tier-1 firms raising base pay to ₹19.5 lakh, litigation is obviously not for those who value material goods in their first few (ten) years. Some fellowships were offered for young litigators in the past (JS Verma/Supreme Court Lawyers Welfare Trust Fellowship), and some colleges offer scholarships to support young litigators in their formative years (GLASS at GNLU comes to mind), but there is most definitely a need for more scholarships, fellowships, or additional stipends to the tune of around ₹15k-25k a month.

Of course, hiking the retainer fee is an option, but this should largely be in the domain of senior or more established counsel. A large retainer creates huge pressure on the 27–36-year-old litigator who wishes to retain good juniors, has no way of ensuring steady monthly recoveries, and is often running on break-even or just over. Costs are often awarded by courts - perhaps creation of a young litigators fund, which could also receive interest from the rather large FDs that are also deposited in court, would be useful in creating a corpus for distribution amongst fresh members of our bar.

The above suggestions are bare minimum. None of us want the brightest in our chambers leaving India to do a Master's degree because they are disillusioned with the difficult life they are welcomed to when they join the bar. Maybe, if we put our heads together, and if we utilize the large spaces available within court, we could find ways to make our most recent members of the bar feel more welcome.

Adit Subramaniam Pujari is a Delhi-based advocate.