The Lawyer as Juggler

Bapoo Malcolm 21 April 2016

Most readers will know that there are two types of ‘court cases’, commonly called civil and criminal matters. In one, the respondent is called a defendant, and in the other, the accused. Since cases of the latter type involve penal provisions, they are more feared. But, often, both types are invoked simultaneously. What then are the options available to the defendant, who is also the accused?

The author’s favourite example is the OJ Simpson case. It involved the gruesome killing of OJ’s wife, Nicole Browne, and her boyfriend. The end result was that OJ was acquitted of the murder charge in a criminal trial; thanks to some fancy footwork by his defence team. However, later, the civil court fined OJ four million US dollars. The civil matter had followed the completion of the criminal trial.

Different trials have different rules. In civil matters, the usual decision is a matter of establishing rights, the claim or the ‘hukk’ as we would put it in Hindi. It calls for one party, the plaintiff, to ask for his rights as against the other party, the defendant. These demands can be true, frivolous, exorbitant or downright crooked. The court decides in whose favour the balance should tilt, but not before giving the other side the opportunity to air its views. Both sides give evidence and can be cross-examined. This is crucial to us.

It is a bit different in criminal cases. The accused is allowed to keep his peace. It is for the accuser to prove everything, every little bit. No help is given by the man in the dock. A small gap, an error, a miss, and the accused is let off. It has to be a clean ‘yes’ or ‘no’. No maybes. It is either a conviction beyond any reasonable doubt, or being let-off.

If a man has both, a criminal and civil case against him and he comes to court asking for one trial to be stalled, or ‘stayed’, till the other is over, what would you do?

You be the judge.

Would you allow one trial to stop? Which one would you allow first? And why? The OJ way? Or the Indian way?

This is where the lawyer’s brain is most tested. He has to play with many balls up in the air and not drop a single one. In India, the common application is for a stay on the criminal proceedings; till the civil court decides. Is it a solution? And is it the right one? Will it allow the responding party more relief than compulsory attendance in court? Will time lost make any difference? Remember, in the civil trial, the defendant has to reply to certain claims. Even silence will be construed adversely. AND THE SAME EVIDENCE WILL BE USED AGAINST HIM IN THE CRIMINAL MATTER. The law allows it and we do use this strategy.

The rules allow for the judge’s discretion. Usually, and backed by past judgements, the courts refuse a stay, thereby not stalling the criminal trial. Would the judge then be right in allowing the civil matter to be halted, because the man might be forced to ‘self-incriminate’ himself in the civil case? This is where the smart lawyer shows his true understanding of the issues and takes the tough, but right, decisions.

And this is what OJ’s lawyer did. Four million dollars as opposed to the wired chair. Sit tight in the criminal matter, sow doubts about the evidence (in this case, the testing of blood samples on the glove), obtain an acquittal. Then, who cares what happens in the civil proceedings?

But some lawyers think differently. Maybe they wish to prolong the civil trial as much as possible. Maybe it is no more than a knee-jerk decision, showing the persistent client that he is on the ball. Closer examination, and deeper reflection, may show that this tactic is counterproductive.

Yet, it is best to let your lawyer do his job, unimpeded. Remember, you can run, but you cannot hide.

Comments

User

Bapoo Malcolm

1 decade ago

Thanks, M Param. Hope you never have to go to court, except to appreciate the architecture. All the High Courts are great buildings. Except the Supreme Court. God, is it lousy in its design. And vaastushastra-wise, it has to be a disaster. A round building! Like the Houses of Parliament.

If you could not fathom the intricacies of the article, SORRY. Two reasons, a) I am a poor writer and b) The 600 word limit; I normally exceed that.

Will try to write a fuller article ....... some day!!! But there is so much more to write on and about. One opens any book, any page, and there's a story. That's the beauty of law. But will try. Pray for me.

Param

Replied to Bapoo Malcolm comment 1 decade ago

dear sir, your writing is spot on... my limited understanding of the nuances of civil v/s criminal cases is thankfully due to no exposure to courts :)
fact is - competence, commitment & communication in any profession is hard to find. happy to see people like you around...
keep writing.

Param

Replied to Bapoo Malcolm comment 1 decade ago

Param

1 decade ago

i can't claim to have understood the nuances in the article, but i do know whom to call if i ever get into a court case :)