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Reference material: Changing face of commercial litigation in India and how NUJS business law diploma course can be used by litigators
This article is crucial for all law students and young lawyers who want to litigate in future and who are exploring the relevance of business law in their career. Even those who are not immediately planning to litigate immediately can go through this document. Notice that the possibility of creating a career in litigation remains very strong if you acquire specialization in business laws.
Many litigators have asked us how the business law diploma course offered by NUJS and developed by iPleaders can be useful for them. Litigators from 6 states who practise in the trial courts, High Courts, arbitration proceedings and regulatory litigation have already undertaken the course and benefited tremendously. Before we get to how the course is useful for litigators, we would like to share certain facts about the impact of economic forces on the legal industry.
The Income Tax department’s claim in the famous Vodafone case was close to Rs 11,200 crores.
In the Kingfisher’s debt restructuring, banks case had over Rs 6,000 crores of unpaid loans (without interest).
Nokia was required to deposit Rs 2,250 crores in December in an escrow account before its deal with Microsoft could be cleared by Indian courts.
(You may or may not know about the above incidents, but just notice that the amounts involved run into thousands of crores, which is a huge sum.)
Hard facts about a building your own practice as a litigator
It takes at least 5-10 years to establish a thriving litigation practice – and young lawyers face a huge financial crunch during this period. This is the most difficult phase of litigation. Those who survive this phase and do well have drastically higher chances of succeeding in the long-term.  

What emerging opportunities are available to litigators and how can the business law course help?
As practice and experience grow, many lawyers dream about working on cutting edge corporate matters. For instance - investment laws, FDI related matters, corporate criminal liability, syndicated foreign loans, etc. There is little opportunity to learn the commercial intent, transactional patterns and practices or even the underlying law for a litigator already practicing in Indian courts. Commercial litigation of this level is a different ball-game altogether and requires some specialized knowledge, as compared to other kinds of litigation.
Consider the Vodafone case, Kingfisher’s debt worries or Nokia’s tax dues – commercial disputes of such importance were relatively uncommon 20 years back, and would rarely fall in the hands of an ordinary litigator (unless he was a luminary at the bar with decades of experience).
Today, such high-value commercial disputes are rapidly increasing, and large companies actively seek the help of litigators for advice on litigation strategy and to represent them in various legal forums. There is a real opportunity in all courts all over the country to build a practice around high stake commercial litigation. You could be in Rajasthan, Goa, Uttar Pradesh or any other state – and have an opportunity to argue complex commercial matters involving FDI or corporate governance in your state, before courts and arbitration panels.
Lawyers who had good training, sometimes while working in commercial law firms in other countries, have been doing this already. The 5 to 10 years wait before you start getting your own corporate litigation clients is not mandatory anymore, provided you have the right kind of expertise which you have to demonstrate for your clients.
While the long ‘dip’ in a litigator’s career was acceptable as the norm ten years back, today, lawyers are reinventing themselves to tap into newer opportunities to stabilize their earnings in their initial years and create newer opportunities through their unique experiences, which they can extensively leverage in future.

Size of this opportunity and why you should tap into it early
After an opportunity has materialized, you can’t capitalize on it any more – you will only be a late entrant. Lawyers who have emerged as successful litigators and managing partners at law firms have been known to spot opportunities early – from Pravin Anand who was amongst the first Indians to be present in international conferences on intellectual property to Zia Mody, Cyril Shroff or Rajiv Luthra, who have actively pursued corporate clients as early as the 1980s and 1990s, having foreseen the possibility of foreigners investing billions in India in the coming years.

Let’s look at some trends to evaluate the size of the ‘commercial litigation pie’ for present and future lawyers.
#1 Companies are footing larger litigation bills and have expanding legal teams
Did you know that the top 500 companies spent Rs. 9500 crores on legal bills in 2013? Did you know that the Tata group has around 400 lawyers – which competes with the number of lawyers working at India’s largest law firm Amarchand Mangaldas!
Not everyone avoids litigation – you’ll recall how Google had an aggressive stance with respect to email as well as Google Books, it rolled out ads (on Gmail) or Google Books service without unduly worrying about litigation pertaining to the privacy issue or copyright licenses – those took their own time to resolve (in courts and outside). Of course, Google was aware that no matter what it did, litigation was inevitable.
In India too, large players recognize litigation as a necessity - Adani’s legal expenses have doubled from Rs. 78 to 157 crores! DLF has been consistently spending around Rs. 150 crores over the past two years. Imagine being a lawyer working on some of their cases.
#2 Amounts in dispute can be significantly high
As you saw in the introductory paragraph, the value of disputes has significantly increased - the Sahara case involved money worth Rs. 24,000 crores! In fact, it is increasingly common to have a dispute running into at least a few hundred crores.
#3 Volume of litigation for the largest companies is increasing, increasing the chances for young lawyers seize such opportunities and build their ‘profile’
You may work on relatively small matter or earn a small fee, but due to the increased volume of litigation faced by large companies, the likelihood that you will have a big-ticket name as your client has increased drastically. Globally, the biggest companies have been involved in a huge volume of litigation – whether it is Apple, Microsoft, Samsung, Vodafone, Nokia, Jet, Novartis or DLF. These companies approach a variety of lawyers for different purposes and do not exclusively restrict themselves to the most famous legal names for all their work – for example, young litigators may have opportunities to defend (or argue against) such a company in cheque dishonour cases, real estate disputes, employment disputes or consumer cases.
Representing such clients will give a tremendous boost to a person’s credibility as a lawyer. It results in a network effect – he is able to inspire more trust from clients, his practice improves (he may start getting more conventional matters such as property law disputes, matrimonial cases or criminal law matters too!) and he may be able to charge a higher fee.
#4 Certain commercial sectors are more litigation prone than others
The general counsel for the Essar group has himself stated that litigation costs for companies in the steel, telecommunications and infrastructure sector have increased 3-4 times over the last five years!
Imagine where a litigator or a law firm which recognized this opportunity 5-8 years back would be placed now.
What kind of work can litigators take up if they have business law skills?
#1 Corporate retainerships and consultancy work
Clients often approach litigators for commercial consultancy work. You will notice that many successful lawyers with a flourishing litigation practice also do some corporate consultancy work (in fact, some of them specifically establish large teams for the consultancy work).  Even young litigators have started taking up corporate retainerships, which bring with them a heavy component of transactional and advisory work to have a useful source of supplementary income. Sometimes, the retainer amount under these arrangements may even exceed top corporate law firm salaries!

#2 Representing clients in arbitration proceedings
Arbitration is becoming very popular and ubiquitous with time – not just high-value contracts but even most domestic contracts have arbitration clauses these days. Developing expertise in the subject requires some specific skills that you were not taught in college and may not learn unless you work with a lawyer with a major practice in this area.
For a lawyer representing his client at an arbitration proceeding, mere knowledge of cases pertaining to the Arbitration and Conciliation Act or the theories of international commercial arbitration is not good enough to successfully represent a client in arbitration proceedings- it is important to have a strong grasp of how commercial contracts work across different industries.

#3 Regulatory litigation
Regulatory litigation at tribunals and administrative authorities such as income tax appellate tribunal (ITAT), SEBI, TDSAT presents a great opportunity for young litigators – those who are interested in building a practice in regulatory litigation must understand the entire sectoral framework pertaining to the relevant tribunal and keep abreast with how updates affect the interests of their clients. Tax, securities or telecom sector laws can be quite technical and require sustained effort to build expertise.

Notice how each new opportunity requires you to develop expertise in an area pertaining to business laws – whether it is tax, securities, investment law, company law or telecom laws.
How business law skills can contribute to litigators in this work
#1 – Increasing complexity of work requires some specialization. Acquiring business law skills will help towards that goal. 
Litigators like Harsh Salve or Rohinton Nariman are known to argue cases on the most important issues, from tax cases like Vodafone to constitutional law matters. However, due to the increasing complexity of work and emergence of dedicated tribunals for regulated sectors, India may well see a breed of specialized commercial litigators in the future, which is similar to the UK or US. For example, Philip Wood, Queen’s Counsel in England (this is similar to the Senior Advocate designation in India), is internationally renowned to be an expert in international financial laws. Even Nani Palkhivala is specifically remembered for his expertise in constitutional law and direct tax, apart from his remarkable advocacy skills.
#2 - Deep understanding of subject matter and persuasiveness are essential for peak performance. Learning business laws (even if you are not specifically learning about litigation) will help when you litigate.
You can’t be arguing before the Securities Appellate Tribunal without being an expert on securities law, or at the Company Law Tribunal without knowing how the Companies Act applies at the ground level.
The importance of persuasiveness has been hugely undermined by young lawyers in court. While we know that a successful litigator must understand the relevance of ‘courtcraft', or he must be ‘convincing’ and ‘persuasive’ to the bench – how this ability can be developed is a mystery to most people. How can one develop this ability?

‘Persuasive’ abilities are not inherent by birth or developed overnight – when you are arguing on a commercial issue, a nuanced understanding of commercial interests of the parties involved can significantly alter the course of the hearing. A court does not merely look at the provisions of the statute – they place significant weightage on the intentions of parties and ‘practices’ of the concerned sector. Learning about business law systematically, understanding commercial intent and knowing how business law or commercial agreements can be strategically used to further commercial interests is extremely important for developing persuasive arguments to articulate a client’s interest.
#4 – Possibility of creation of alternate sources of income
Developing expertise in commercial litigation can help in a number of ways –
  • Clients pay better for commercial matters, since financial considerations are at the heart of the dispute.
  • Satisfied clients frequently request advisory services from litigators as well, which are typically passed on by lawyers. A lawyer who understands aspects such as compliance, drafting, negotiation and legal strategy need not pass these on to someone else in their network perform these himself. This not only improves client satisfaction but also enables the lawyer to generate an additional source of income.
  • Few litigators have sectoral expertise and it is easy to develop a specialization if one starts focussing in that direction.
What’s more, you can acquire an early mover’s advantage if you start early. To be in a position to capitalize on such emerging opportunities, developing business law skills in the early stages of your career can be helpful as it reduces the time taken to come up to speed and instead improves your skillsets manifold compared to peers.

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