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Advantage of written arguments

December 6, 2011 Leave a comment

Why lawyers discourage “written argument” and prefer “oral argument”

Whenever a person thinks of who is a lawyer then the perception is “a person who can argue in the court”. General public from society do not know what is evidence, cross examination, interim application etc. All they know is lawyer is a person who argues in court. Now when we tell our advocates to file “written arguments” in the court then there ego is hurt. They think we do not have trust in them or that their job is being taken away. Also since they have taken some money from us hence they want to show to us that they are doing the work hence they discourage “written argument”. But for a litigant it is of least importance whether the ego of lawyer is hurt or not. For a litigant most important thing is relief. And for a relief litigant should do the things which will get relief for him.

Advantage of written arguments

  • You can be free from worry that your lawyer will miss out any point during the argument.
  • It is difficult to get senior lawyer to the courts as they are always busy in some other court and keeps giving excuses and keeps taking adjournments.
  • If it is an oral argument then judge normally writes down points. He himself can miss few points but written arguments are safe.
  • You can add table, graphs, citations etc to make written argument very effective which is not possible in case of oral argument.
  • You can add as many citations as part of the written arguments to make it effective.
  • In fact there is no particular format specified for the written argument.
  • You might have 10 points to be conveyed to the judge in oral arguments. In which lawyer may convey only 7 points and judge may note down only 5 points. So you may lose the vital points which you could have conveyed to the Judge.

Example 1 of a written argument

  • Objection: I submit that the petition is not maintainable as petitioner and respondent are staying separately from 2004 whereas DV Act came into effect on 26th October 2006.
  • Argument: Your honour: I would like to respectively submit that the petitioner and respondent are staying separately from 2004 whereas DV Act came into effect on 26thOctober 2006. So, on this ground only it is liable to be dismissed. E.g if a person is found smoking in public place yesterday and a new law comes in to effect today then that person cannot be punished because he was found smoking yesterday because yesterday the law itself was not there.

Example 2 of a written argument

  • Objection: I submit that the though the complainant has left and deserted the house of the accused in 2009 but she has filed complaint of dowry harassment only in 2010.

 

  • Argument: Your honour: I would like to respectively submit that the complainant and accused are staying separately from 2009. Even if we assume the allegations of the complainant that there was dowry harassment during the marriage, there is no explanation as why she kept quiet for full 1 year and filed FIR only in 2010 after 2 week after a case of RCR was filed by the accused to call back his wife. So it is clearly a case of afterthought.

Example 3 of a written argument

  • Statement of petitioner from her affidavit: I am ready to come back to my husband’s house and lead matrimonial life.

 

  • Argument: Your honour: I would like to respectively point out to the cross examination held and recorded on 23/04/2010 wherein the petitioner had answered in negative on being asked whether she had filed any case of RCR. On the contrary when the respondent filed a case of RCR she countered it with 498A. So it is very clear that petitioner had left the company of respondent on her own and when called back refused to join matrimonial life.

Cross Examination Techniques- 498a, DV, CrPC125, Divorce etc

December 6, 2011 13 comments

I have neither read any book or any Google material before writing this article as most of the available material will not suit our situation.

 

  •  The important thing to cross opposite party in a cross examination is to prove her false statement in her affidavit which can enable us to file perjury case under 340 CrPC.

 

  •  Remember apart from the documentary evidence which you might be having, cross is the most important step in cases of matrimonial cases because most of the incidents happen within the four walls of the house and for which there may not be any proof or evidence. So your advocate must do the cross in such a way so as to bring out reasonable doubt in the mind of judge about the character of the wife and to disapprove her statements.

 

  •          Preparation for a cross examination is very time consuming and an involved process. Most of the advocates asks questions on-the-fly and thinks that is the correct way to cross. No…Selecting each and every question for cross is a very involved process.

 

  •          The important thing to note in a cross is to bring out her lies. Since every complaint is different hence there cannot be a general formula for questions. It has to be prepared on a case to case basis.

 

  •          You need to be very clear to what question you are expecting from the other party and then frame the question accordingly.

 

  •          Never ask straight questions.

 

  •          Your opposite party should never know why you are asking a particular question.

 

  •          Never ask the question for which she knows the facts clearly.

 

  •          Never ask the questions in the sequence of the complaint as she will be able to tell the answer like a story.

 

  •          Prepare the questions in sequence of the complaint (minimum400+) and then categorize the question in various topics like perjury, desertion, cruelty, maintenance, dowry etc. So this way questions gets shuffled. Now after first level of shuffling again shuffle the questions so that no two adjacent questions should have any similarity in any manner, sequence, event or subject.

 

  •          You must be present with your advocate during the cross to assist him for any doubt or clarifications.

 

  •          Do all the ground work your self of preparing questions.

 

Example1:

Statement from a 498A FIR: “my parent have given 40 sovereigns of jewelry worth 40 lakh Rs to my husband during the marriage”

Your Advocate to your wife: Madam can you give the exact breakup the jewelry?

Opposite party-Wife: She is going to fumble as it is impossible to give the breakup which is going to match 40 sovereigns.

 

Your Advocate to your FIL: Sir, May I know what profession you are doing?

 

Opposite party-FIL: I have a grocery store.

 

Your Advocate to your FIL: Where do you buy the groceries for the shop.

 

Opposite party-FIL: From city market.

 

Your Advocate to your FIL: How often do you buy grocery?

 

Opposite party-FIL: I buy every week.

 

Your Advocate to your FIL: Good. How much do you buy grocery every week?

 

Opposite party-FIL: Approximately 10000/- per week..

 

Your Advocate to your FIL: Good. Do you have receipts for all this? Do you maintain it?

 

Opposite party-FIL: Yes, I file all the bills in the file and maintain it.

 

Your Advocate to your FIL: Sir, May I know you have the bills/receipt for the 40 lakhs jewelry you had claimed to be given to your SIL.

 

Opposite party-FIL: Fumbles, No I don’t have.

 

Your Advocate to your FIL: Sir, May I know even for 10000/- you are maintaining file but you do not have receipt for 40 lakh jewelry!!

 

Opposite party-FIL: No answer.

 

Your Advocate to your FIL: Sir, I suggest to you that you had given false complaint in the FIR that 40 lakh was given. I state that no such jewelry was given to SIL or to his family.

 

Opposite party-FIL: No..No We have given.

 

Example2:

Your Advocate to your wife: Madam you had written in the complaint that you had given a gas connection to your husband as dowry?

Opposite party-Wife: Yes.

 

Your Advocate to your wife: Madam can you tell the court from which agency you had purchased the gas connection?

Opposite party-Wife: I don’t remember.

 

Your Advocate to your wife: Can you atleast tell us from which company you had purchased?

Opposite party-Wife: I don’t remember.

 

Your Advocate to your wife: Can you tell us who used to deliver cylinder to your house?

Opposite party-Wife: Gas agency boys.

 

Your Advocate to your wife: Madam can you tell us who used to receive the cylinder in your house?

Opposite party-Wife: I used to receive at house.

 

Your Advocate to your wife: Madam normally they give a receipt after payment? Where agency name is mentioned. Is it correct?

Opposite party-Wife: Yes.

 

Your Advocate to your wife: I state that your husband only has purchased the gas connection for XXX Agency and you are lying that you had purchased the gas connection and you are unable to tell the name of the agency also even though you were receiving the cylinder at house from the said agency.

Opposite party-Wife: Fumbles. No…No We only had purchased the gas connection.

 

Example3: We have given a washing machine to husband.

Your Advocate to your wife: Can you tell us the exact cost of the washing machine?

Opposite party-Wife: 15000/-

Your Advocate to your wife: Can you tell us the brand of the washing machine?

Opposite party-Wife: XXX

Your Advocate to your wife: Can you tell us the size of the washing machine?

Opposite party-Wife: XXX

Your Advocate to your wife: Can you tell us the in which shop you purchased this washing machine?

Opposite party-Wife: Fumbles…I don’t remember.

Your Advocate to your wife: Can you tell us the date on which you brought this washing machine?

Opposite party-Wife: I don’t remember.

Your Advocate to your wife: How you paid for purchasing this washing machine?

Opposite party-Wife: Cash

Your Advocate to your wife: Madam. Look at this receipt. Your husband with his savings purchased the washing machine and here is the receipt in his name. Request the judge to mark the receipt in R series.

Example4: We have born the entire expenses of the marriage.

Your Advocate to your wife: Can you tell us the exact cost/expense of the marriage?

Opposite party-Wife: 10 lakhs rs.

Your Advocate to your wife: Can you give us the break up of each expense…at least broadly

Opposite party-Wife: She will fumble.

Your Advocate to your wife: Can you tell us the salary of your father at the time of marriage.

Opposite party-Wife: 10000 per month

Your Advocate to your wife: Can you tell us your husbands salary at the time of marriage?

Opposite party-Wife: Jumps suddenly!!! 50000/- rs per month.

Your Advocate to your wife: Madam, I suggest to you that since your family were relatively poor and expressed inability to bear marriage expense and hence most the marriage expense was done by your husbands family.

Opposite party-Wife: No…No

Sample draft – EXEMPT FROM PERSONAL APPEARANCE

November 23, 2011 Leave a comment

IN THE COURT OF …………..………………………….METROPOLITAN MAGISTRATE, PUNE

CRIMINAL COMPLAINT NO. _______OF 2011

IN THE MATTER OF:

Mr. ………………                                                                                                                                                                   …….COMPLAINANT

VERSUS 

State and XYZ                                                                                                                                                                  . .……ACCUSED

APPLICATION FOR EXEMPTION OF THE PERSONAL APPEARANCE OF THE COMPLAINANT

MOST RESPECTFULLY-

1.  That the above-mentioned matter is pending before this Hon’ble Court and is listed   for today.

2. That the Complainant is busy in some inevitable administrative work. Thus unable to appear before this Hon’ble’ court today.

3. That the absence of the applicant is neither intentional nor deliberate, but due to the bonafide reason mentioned above.

PRAYER: –
It is, hence, most respectfully prayed that this Hon’ble Court may be pleased to exempt the Complainant from the personal appearance for today only in the interest of justice, through counsel.
COMPLAINANT
THROUGH

COUNSEL
Place  : Pune

Dated : ………, 2011

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