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  • Writer's pictureVadhan

Legal Studies in India

Legal Studies in India-Is it a farce?

I was in a seminar recently in New Delhi. A conglomeration of lawyers, bureaucrats, law students and academicians

I wasn’t a speaker. I was happy to be part of a dynamic audience. To me, the highlight of the event was the panel discussion of academicians on how to improve legal education. It was an important discussion with very candid revelations by the younger head honchos of top private law schools and national law schools.

The points discussed were pretty interesting. Two of the three speakers started out with apologies with one speaker calling himself a hypocrite. The brief of their speeches is as follows.

  1. India has the largest number of law schools in the world followed by Brazil and Russia.

  2. Except for a handful of law schools, the others across the country are hardly equipped to train lawyers for 21st century India.

  3. This is because the Bar Council of India has grown old without growing up.

  4. The Bar Council of India is not proactive in recognizing new disciplines in law that need to incorporated into legal studies.

  5. The balance between teaching law and teaching skill sets needs to be brought in.

  6. Professors of law are not allowed to practice law, their license is cancelled the moment they take up a teaching profession, thus they are unaware of the practical on-the-ground experience of lawyers. Students don’t get insight into practical implications of law.

  7. Lawyers of big law firms are not interested in investing too much time taking up guest lectures.

A lot of other theories were promulgated.

However, at the end of the day, I, as a lawyer, was very dissatisfied with the outlook of the heads of the premier law schools, except for one. Here’s why.

They were not owning up to their own deficiencies. They were too keen on pointing fingers at the establishment. While practically, they might be facing issues, it is incumbent upon them to create an awareness of the needs and requirements of the modern day law student to the establishment.

Let’s be clear about this, by its very nature, an establishment is a sloth. That doesn’t mean a college that takes millions of rupees every year from a student should not improve its lot or offer the student a wider exposure in terms of what the student can choose to do while sticking to the curriculum dictated by the establishment. For instance, Clinical law. Environmental law. Compliance management. Contract Management. Sports law.

I will now tell you why I found that one premier college exceptional. It was because the Director of the institution owned up to his faults. He was vociferous that he was not meeting the requirements of the day. He then said that to the extent possible, he was making innovative introductions to provide students with perspectives. That’s being honest. That’s the first step forward in improving the lot of the students. But how many are doing it. In this instance, one out of four. That’s not a good average.

Another head honcho of a very expensive premier law school was lamenting on the state of teachers. He said they were a confused lot who did not know what they were teaching, why they were teaching it anyway and how to teach.

That about sums up the state of affairs.

There is a common misconception in the mind of the average Dean/ law school/ parent/ lawyer/ society that the top law schools of the country train only corporate lawyers and not litigation lawyers.  They think that because students of these colleges get recruited by companies from campus and walk away the very first month after graduation ‘with more than what the Dean of a premier law school makes in a whole year’ they are ‘corporate lawyers’.

Nothing could be further away from the truth. Nothing could be more wrong about that statement. It is more than unfortunate, tragic even, that the statement was made by a well-respected Dean of a very respected and highly regarded law school in this country.

First of all, the topic is NOT ABOUT MONEY. Secondly, what in the name of heaven is a ‘corporate lawyer’?

In my view, lawyers can be segregated into two types. Litigation lawyers. Transactional lawyers. While litigation lawyers do some amount of transactional law, transactional lawyers are that breed of mavericks who look to new horizons and develop systems for societies to thrive. Mahatma Gandhi and Dr. Ambedkar are fine examples of transactional lawyering. They work more towards being social engineers who see a wider array of roles for lawyers than being just dispute resolvers. By that, I don’t intend all transactional lawyers to be messiahs, naysayers, peace lovers, etc. I intend them to be far more dynamic than the average litigation lawyer whose life starts and ends with dispute resolution in one form or another.

While dispute resolution is not a bad thing in itself, I detest it because in the modern day, it is a practice that feeds on the woes of others, whether they be individuals or body corporates. To me, a lawyer is about building systems and societies, not living off it in the guise of resolving disputes that arise as a result of systemic failures within society. That doesn’t mean there shouldn’t be dispute resolution. What I intend is that a lawyer should be a given a choice.

Whether it is one of the many local law colleges or the premier institutions in India, no one is taught or trained to be a transactional lawyer or get to know what that term even means until its too late. They are trained to be litigators. Period. Thus, these young lawyers come into society and learn from their seniors on how to litigate. They learn their ropes, not only in law but also in handling clients. They have no clue that there is a mystical and exciting thing called transactional law. The few who ‘take a safe desk job’ as it was succinctly put by the famous Dean, are considered too weak to go to court.

I must break here to add that I was a litigator for ten years. I had the opportunity to work with the best of the best litigation lawyers in this country. I have nothing against them. I am totally against what the system makes out of a litigation lawyer. I am also pensive because litigation lawyers allow the system to mold them poorly.

To describe a litigator, He/ she is essentially a lawyer who has to do a balancing act between the needs of the client and views of the judiciary. He/ she also intends to make a living on the way. Thus, over a period of time, the litigator willbecome street smart, putting commercial and practical interests before the interests of his client.

This is clear from one simple test.

Ask a litigator if he can assure the success of the case or if his/ her fee can be based on success. The answer invariably will be in the negative to both queries. He/ she is being paid to try to win a case. TRY. Is a pilot paid to land a plane ortry to land a plane? There are very few litigators who refuse briefs and advise clients appropriately. Very few litigators. Period. I have worked with one. I have the greatest respect for them.

Ask a transactional lawyer if his solutions, whether it is audit or a legal framework or contractual negotiation or setting up a business in other geographies, will work for and add value to his client. The answer invariably will be positive. His/ her livelihood depends on the outcome of the assignment, not for trying.

Again, I don’t intend to show disrespect to a litigator. I am merely pointing out to the space that both types of lawyers occupy. I am merely trying to establish how much of a difference there is in litigation and transactional law practice. The point being that law students are totally unaware and thus unprepared to handle transactional law.

The fact that the current crop of lawyers was trained in the old school is hardly an argument because the current crop of transactional lawyers went through the excruciating pain of adapting to change. It is far more severe than the pain of getting trained to expect and anticipate change. It is far easier to go to court. But to find a path less traveled and to map it like the current crop of transactional lawyers have done, is far more exciting though painful.

However, in the words of the self-same Dean of that premier and respected law school, transactional law is nothing at all other than mere acquisition of certain skill sets. His concept of ‘corporate law’ was to say the least, bizarre. His examples astounded me, leaving me in a place between laughter and tears. According to this esteemed and learned man, IP litigation is corporate law. Contractual litigation is corporate law. He gave other such atrocious instances.

Though I desperately want to stand outside his institution and use a megaphone while saying what I am about to say, I think this forum will do just as well.

IP litigation is a property dispute. It is an asset matter. It can be in relation to an individual as well as a body corporate. Even a rent control matter is contract litigation because it arises under a contract. There is no such practice area called ‘corporate law’ unless you want to categorize the various types of laws in India. E.g. property law, labor law, corporate law, taxation law, etc.

Transactional law is different. It is not about filing cases. It is about building robust societal frameworks and systems. To create a bedrock on which there is no encouragement to litigate but to mitigate, negotiate, mediate and settle. Where lawyers adopt practices that help clients tangibly. How difficult is that to understand?

And the larger question is, if a Dean of one of the most respected law schools in India has no clue what is happening around him, what is the future of legal studies in India?


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