ADVOCATE AND APPEARANCE IN THE COURT FOR FIRST TIME

You have your very first court appearance. You’re nervous and you don’t know what the heck you are doing. For those who practice in less popular firms or in a solo practice, your first appearance in court is often by yourself. How do you avoid looking like a newbie?

Whether it’s a simple case management conference, a motion to compel, or a summary judgment hearing, here are our tips that you will help you to be prepared for your first court appearance.

And no, I’m not going to tell you to be on time, be respectful, or dress appropriately. Those are a given. If you screw those up, the ship may have already sailed on the whole “you-look-like-you-know-what-you-should-be-doing” thing.

THE DAY BEFORE THE HEARING:

1. Check the court calendar and/or tentative ruling.

Most courts have an online calendaring system that will show whether a hearing is still on calendar, whether a tentative ruling has been issued, and whether a hearing is required. Some courts will have a telephone option for tentative rulings.

For basic case management conferences, you just need to know that the matter is still on calendar. Generally, for other hearings, if a tentative ruling is issued, you must advise the court and opposing counsel if you plan to appear at the hearing, usually by 4 p.m. on the day before the hearing. If you don’t, and the other party does not appear, you will not be allowed to argue. If you don’t want to contest the tentative ruling, then you don’t have to appear unless opposing counsel advises they plan on appearing. If no one appears, then the tentative ruling is adopted. If the tentative says “hearing required,” you must appear.

2. Familiarize yourself with the local rules.

This goes hand in hand with the first tip. Every court is just a little bit different. So go online, check the local court rules, and make sure you follow the directions, especially with respect to tentative rulings.

3. Find out about the judge.

Just as every court is a little bit different, judges also have their own way of doing things. Ask the partners or more senior associates in your firm for any insight. Attorney list-serves are also a great resource.

4. Review the file.

Being prepared is a must. Take time the day before to review the file and familiarize yourself with the case and its details.

DUTY OF ADVOCATES:

An advocate is considered as an officer of the court, honoured member of the community, and a gentleman, thinking that to become a member of the bar he has to be lawful and moral not only in his professional capacity but also in his non professional capacity. An advocate has to courageously support the interest of his client and also have to follow the principles of ethics and etiquette both in correspondence.

Following are the duties of advocate towards to court:

  1. An advocate while presenting his case should conduct himself with dignity and self respect
  2. Respectful attitude must be maintained by the advocate. He has to keep in mind the dignity of the judge.
  3. An advocate should not, by any improper means should influence the decision given by the court.
  4. An advocate can make a complaint against the judicial officer but it has to be before proper authorities and there has to be serious offence done by the judicial officer.
  5. It is the duty of the advocate to prevent his client from resorting to unfair practices and also the advocate himself should not do any of such acts.
  6. Dress code has to be maintained by the advocate while appearing before the court.
  7. An advocate should not take up any case of his family members and relatives.
  8. No bands or gowns had to be worn by the advocate in the public places. It is only limited to the court premises.
  9. An advocate cannot be as a surety for his client. An advocate shall not act or plead in any matter in which he has some kind of pecuniary interest.
  10. It is the duty of the advocate to cooperate with the bench in the court.
  11. It is the duty of the advocate to perform his functions in such a manner that due to his acts the honour, dignity and integrity of the courts shall not be affected.
  12. An advocate should not laugh or speak loudly in the court room especially when the proceedings are going on.
  13. When an advocate accepts a brief, he should attend all adjournments properly. If he has any other work in another court, he should first obtain the permission from the court concerned. Particularly in criminal cases, it is the first and foremost duty of an advocate to attend.
  14. While the case is going on, the advocate cannot leave the court without court’s permission and without putting another man in charge, preferably his colleague or junior or friend advocate.

WHO IS AN ADVOCATE?

In India, the law relating to the Advocates is the Advocates Act, 1961 introduced and thought up by Ashoke Kumar Sen, the then law minister of India, which is a law passed by the Parliament and is administered and enforced by the Bar Council of India. Under the Act, the Bar Council of India is the supreme regulatory body to regulate the legal profession in India and also to ensure the compliance of the laws and maintenance of professional standards by the legal profession in the country.

Each State has a Bar Council of its own whose function is to enroll the Advocates willing to practice predominantly within the territorial confines of that State and to perform the functions of the Bar Council of India within the territory assigned to them. Therefore, each law degree holder must be enrolled with a (single) State Bar Council to practice in India. However, enrollment with any State Bar Council does not restrict the Advocate from appearing before any court in India, even though it is beyond the territorial jurisdiction of the State Bar Council which he is enrolled in.

The advantage of having the State Bar Councils is that the workload of the Bar Council of India can be divided into these various State Bar Councils and also that matters can be dealt with locally and in an expedited manner. However, for all practical and legal purposes, the Bar Council of India retains with it, the final power to take decisions in any and all matters related to the legal profession on the whole or with respect to any Advocate individually, as so provided under the Advocates Act, 1961.

The process of being entitled to practice in India is twofold. First, the applicant must be a holder of a law degree from a recognized institution in India (or from one of the four recognized Universities in the United Kingdom) and second, must pass the enrollment qualifications of the Bar Council of the state where he/she seeks to be enrolled. For this purpose, the Bar Council of India has an internal Committee whose function is to supervise and examine the various institutions conferring law degrees and to grant recognition to these institutions once they meet the required standards. In this manner, the Bar Council of India also ensures the standard of education required for practicing in India is met with. As regards the qualification for enrollment with the State Bar Council, while the actual formalities may vary from one State to another, yet predominately they ensure that the application has not been a bankrupt /criminal and is generally fit to practice before courts of India.

Enrollment with a Bar Council also means that the law degree holder is recognized as an Advocate and is required to maintain a standard of conduct and professional demeanor at all times, both on and off the profession. The Bar Council of India also prescribes “Rules of Conduct” to be observed by the Advocates in the courts, while interacting with clients and even otherwise.

All Advocates in India are at the same level and are recognized as such. Any distinction, if any, is made only on the basis of seniority, which implies the length of practice at the Bar. As a recognition of law practice and specialization in an area of law, there is a concept of conferral of Senior Advocate status. An Advocate may be recognized by the Judges of the High Court (in case of an Advocate practicing before that High Court) or by the Supreme Court (in case of the Advocate practicing before the Supreme Court). While the conferral of Senior Advocate status not only implies distinction and fame of the Advocate, it also requires the Senior Advocate to follow higher standards of conduct and some distinct rules. Also, a Senior Advocate is not allowed to interact directly with the clients. He can only take briefs from other Advocates and argue on the basis of the details given by them. From the year 2010 onward a mandatory rule is made for lawyers passing out from the year 2009-10 to sit for an evaluation test named AIBE (All India Bar Exam) for one to qualify as an advocate and practice in the courts. However, to practice law before the Supreme Court of India, Advocates must first appear for and qualify in the Supreme Court Advocate on Record Examination conducted by the Supreme Court.

Further, under the Constitutional structure, there is a provision for the elevation of Advocates as judges of High Courts and Supreme Court. The only requirement is the Advocate must have ten years standing before the High Court(/s) or before the Supreme Court to be eligible for such. (Article 217 and 124 of the Constitution of India for High Courts and Supreme Court respectively)