Civil Litigation and Arbitration Procedures, Cheat Sheet of Law

Download Civil Litigation and Arbitration Procedures and more Cheat Sheet Law in PDF only on Docsity! Date: 25.02.2022 TRIALS- By Prof. Linda Malkani Preparation and other factors: Negotiations: The contractual connection is based on the contract's responsibilities and obligations. The talks can no longer work at the level or point where one or both of the contracting parties have lost their patience for accommodation or modification. At this moment, a disagreement occurs. - Prof. Linda mentioned Erin Brockovich, a film in which the central idea is that a conflict does not exist or is immaterial until it is mentioned to the population, i.e., until the people are made aware of it. - Lawyers must study the changeover points from one phase of the dispute to the next at all times because they must be informed of the disagreement and the path forward. In the United States, lawyers are required to bring their factual tales, and every trial is fundamentally a storyline. - The investigation process—recording and analysing the facts of the case—and the interview that is being conducted—were reviewed in class. To elicit these narratives, only a few abilities are needed. - Topic from class: Is there a difference between the strategy taken by lawyers in contractual disputes that provide for arbitration and civil commercial litigation? Is the process of laying the foundation similar? - If it is a civil trial, it is regulated by the Civil procedure Code, which means that all legal proceedings must adhere to the law. With in case of arbitration, the Arbitration Act must be observed, which varies depending on whether it is local arbitration or international commercial arbitration. The implementation of the law, however, stays the same in both processes. - Notice: Presenting the case- Where did the dispute start? What exactly are the circumstances of the case? What is the source? What was the major point of contention? What is the case's preliminary legal assessment? - Preliminary Documents- At this point, you'll have your first conversation with your client and obtain all of the necessary documentation. Following the conclusion of the discussion and receipt of the documents, the client interview is done. After obtaining the documents, the first step is to sort through them and categorise them. It entails a preliminary review of materials and their sorting into different folders. The next step is to study all of the documents, make a list of dates, and write out the factual storyline. The notes that lawyers write while examining the documents provide the first actual narrative from a lawyer's view. The filing of the Written Statement is another key component in contesting the case. It is a reply to a plaint in which the accused clearly disputes the charges made in the plaint, and it is the document that must be prepared for memorial pleading. - The following are the steps in the pre-trial procedure: (in order) becoming acquainted with the facts - A factual narrative is presented by the plaintiff. - Everything that has transpired is detailed in the story. - The Advocate examines the narrative before beginning the document development process. - The remedies are identified by the advocate. - When you've been delegated to a case, you'll acknowledge documents, respond to client inquiries, acquire supporting information, overview a legitimate narrative, ask guidance from your supervisor (not in a scheduled meeting, but on an ad hoc basis), constantly pursue his counsel whenever you face suspicion, and eventually, once you've collected all the case materials and think you have a lawful narrative that could be brought to trial, you'll discuss the remedial measures available - Is there a discussion over whether or not to pursue the case? - Because chambers varies from lawyer to lawyer, there is no conventional procedure or common standard. They'll be there in Keshav Gulati's chamber, taking notes on the client's findings and anecdotes. In a healthier environment, associates will be able to intervene, request explanation, and share their ideas. - This varies greatly from chamber to chamber since, as an associate, you will be present during the client meeting, but the discussion about whether or not to pursue the lawsuit, as well as the financial talks about the case, will take place in private when you will not be present. - common type of suits and relief Parties might seek particular performance of the contract in a contract suit. Non-performance of a contract clause, for example. After you've assessed your losses, you can file a claim for compensation. Injunctions are examples of interim remedy. For instance, you could petition the court to stop the other party from doing something or to maintain the status quo. Tortious liability relief- Tortious lawsuits are in rem actions in which everyone has certain rights, such as no one will be reckless with you or defame you. Injunctions or damages might be sought from the court. In the event of a recovery, the court can be contacted to obtain the cash as well as interest on the same. Property-related lawsuits include partition actions, declarations of ownership or title, and will contests in which the court will determine who is the true owner. Trespassers are subject to injunctions. - Checklist for Pre-Institution: - Parties(who to sue) - Jurisdiction - Territorial: the location of the defendant's residence, business, or the occurrence of the cause of action. - pecuniary: several claims (valuing of a property) - Jurisdiction over the subject - Restriction (till when the issues can be raised). - Fees to the court (past valuation of the suit, particular percent of the suit). - Vakalatnama is a Sanskrit word that means "to (authorization of the lawyer). - PROCEDURE FOR THE TRIAL - Because of the Covid-19 crisis, the institution of suit-physical filing and e-filing was established. - If a commercial dispute is brought at the Delhi High Court, everything must be served in advance. According to the law, the plaint must also be served on the opposing party. - The role of the registry is to ensure that any pleadings filed with the court are submitted with the registry. The registrar will review the proceedings and determine if the rules and laws of the particular court have been followed. They will not decide the issue because they are individuals who only register the plaint after ensuring that it complies with the court's basic requirements. They'll examine the filings to check if they're legible, certified, signed, and confirmed, as well as whether the correct legal fees have been paid and the proper cause title has been submitted. Once the administrative services, which are not clerical or legal, are performed, authorities will record the case and transfer it to the appropriate court. - The first hearing is when the plaint is admitted. Sends out summonses The fee required to post the summons is known as the process fee. Interim Relief: manual submission of summons by one party to another in that party's jurisdiction) Dasti Summons: manual submission of summons by one party to another in that party's jurisdiction) (ex-parte ad interim relief) - Defending the plaint: Appearance on the date of summons. Filing a vakalatnama Seeking time to file WS. Denying all allegations (specifically, para by para) Decree: A decree decides the rights of the parties to the dispute. It is always pronounced in the court and the pronouncements are listed in the cause list. If there exists a defect in the decree that which do not appear in the reasoning or the facts or maybe there is a typographical error then one can file an application and get it altered. Criminal Trial Advocacy – Mr. Sougat Mishra If you're interested in criminal law then it is advisable that a person should start with a trial code. This is because of the importance. Of trials and missions that are important for a criminal case. - Victim and the accused: - Substantive law Are settled for. Example laws related to murder. Culpable homicide. But the problem comes with procedural law. A lawyer can choose any trajectory of the case as he wishes. - In criminal cases, their disposable rate is higher than civil cases. - For criminal cases, a client must not be led to dictate the terms of the case. A lawyer must be, well, thorough with the client. - In criminal cases, it can be observed that the most important defense of a client can be taken by his story, which in some cases is not recorded by the police. So criminal lawyers must look for those hidden defenses in the client stories. - A criminal lawyer is needed for the interrogation of the case. Must visit the police station regularly during the case. Since in absence of a lawyer, police might not record all the evidence properly and might be biased in some situations. - In Delhi High Court, there are few senior Criminal counsels, so it is quite possible that a new lawyer could argue easily in front of a judge without being disposed of by the judge. - For that criminal lawyer charged, it is essential. - If no FIR is registered, which is essential for cognizable offences and inquiry is going on, it is important that your client must not be arrested, since it might allow police to create a bad impression. Hence, it is vital that a lawyer must be present during inquiry. - For cases where punishment is more than seven years, then the client will be arrested. But for a lawyer in such cases anticipatory bail becomes important. - For offenses where punishment is less than seven years. The Supreme Court in the case of Anish Kumar versus state of Bihar. It is held that for such cases it is not mandatory for the police to arrest, but the police must provide notice of arrest. A lawyer must not tell his client to run if such notice is given to him, since it cannot be made against him under Section 41A. - If a client runs after notice, then it can result in arresting of your client till pendency of the case. - Section 41 A is the crux of inquiry, where power of the police is provided. - Pre - trial notice: 41A notice: - A lawyer, when delivered with such notice, must respond carefully and diligently. It all comes down to being cooperative by replying to the notices which are given to his client. - For non-cognizable offences, a FIR cannot be made without first prior permission by the magistrate. - For non-cognizable offences, if the police have filed a FIR, then check the at the end it is stated whether the magistrate has given permission. If not, then it is not much of a problem. Police can call your client to meet, but ifthreaten to arrest, then the lawyer must ask for a warrant. - For cognizable cases, such a warrantis not required. - Notice under Section 160 /91 CRPC: The same level of reply as given under section 41 necessary be given by a lawyer when delivered by a notice under section 160. - Same applies for 91 also. - A lawyer must not deflect or delay submittingdocuments, as a lawyer could be seen as noncooperative. - Under section 41A, a client can be arrested, but under section 190/91, a lawyer must be worried about his client getting arrested. - Traffic fines are an acceptance of guilt. However, a penalty is not. - Compoundable and non-compoundable. - In Compoundable, the dispute which is in front of the court can be solved through consensus. - Non compoundable are serious issues which cannot be compounded. - There are some cases which come under non compounded but can be thrown off by the High Court. - If FIR is Registered and the offense is non compoundable then a section 482 petition can only dispose of the case. - Steps involved in a charge sheet: A charge sheet is a green signal for the police to interrogate, inquire etc. A charge sheet is the story of police for the arrest of a person. When fir is just registered, and the police do not want to resolve the matter. In that case, a lawyer must file an interim order. If your case is complicated and requires a lot of investigation. Then never approach High Court as it might motivate the chances of your client being arrestedandkill your chance to go to the High Court again. A lawyer must draft the client’s complaint on his own as it has great significance on various stages of the case. - Section 156(3) CRPC. - A magistrate can order police to register a FIR under this section. - If policedo not file properly and does not provide notice, then again under this section a magistrate can be requested to do so. - Section 151. It is recorded by the police. - Section 91 Crpc: Exceptional circumstance. A lawyer has to show through drafting that the documents which are asked are of sterling quality to the case. - Section 294 Crpc: When a lawyer procuresdocuments through other means like RTI then an application under this section can be filed for the prosecution to accept to reject the documents. - Stage 3: Arguments on Charge The court sees charge prima facie only. - Prosecution Witness Examination is also called Prosecution Evidence: - Section 231 Crpc: A right to club your witness - Witness: Make the witness contradict through asking questions that he has answered and asking him again in an indirect manner. Or try to show to the court that the witness was being negligent Under Section 313, never admit any evidence since during trial a lawyer can always spin it. - Stage:Defense Admission Proceeding In this stage a client’s story can be painted as it deems fit. - Stage: Final Arguments Always reduce your story in a written submission. Be precise and crisp with the story. Though there is notset rule of how long a Written Submission shouldbe but a lawyer must restrain its WS within 7-8 pages. Use pointer since it makes easier for the Judge to go through with the WS comfortably. - If a client is arrested for a crime which is punishable for less than 3 years,then in such case bail is granted ARBITRAL PROCEDURE: INTERNATIONAL COMMERCIAL ARBITRATION Date: 25th March 2022 - Two party, adversarial dispute - International Arbitration has developed its own course. - The contracting parties choose the date, venue, etc. - Contracting parties can choose Arbitrational Institution or tailored made rules or adopt some existing set of rules and regulation to be governed in case of dispute - Institutional Arbitration: Acts like civil courts. For a lawyer it is extremely important to determine dispute resolution - Expedited Arbitration: Expedited arbitration is a speedier alternative to the Arbitration Rules' arbitration system. Arbitration is a well-established worldwide method of resolving disputes outside of the legal system. For time sensitive matters - Forms of Arbitration- - (a)Ad-Hoc Arbitration - (b)Expedited Arbitration (Speedy process, quick 6 months arbitration)