How to Deal with Lawyers in your 498a / DV / Divorce Battle

४९८अ / घरेलू हिंसा / विवाह विच्छेद सम्बंधित मुकद्दमेबाज़ी में वकीलों से कैसे बर्ताव करें?
"Now you're getting done without vaseline
Now you're getting done without vaseline
Now you're getting done without vaseline
Damn, it feels good to see people, on it

— Ice Cube — No Vaseline


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There are many variations of a commonly heard saying in India which goes, "Once you start one or more of the following, you can never be sure how much you will end up spending:- hospitalisation, legal proceedings, and house construction." This saying is incorrect on all three fronts for the prudent person. Here we will talk about how to get your lawyer to perform as per your requirements, and within your budget. The only condition (which incidentally goes without saying) here is that it is essential to keep your requirements and budget realistic, lest you put yourself at risk of facing guaranteed disappointment.

Do not give in easily when faced with the threat of a 498a case. Let the other party (your 'wife') work to get their money. Let the lawyer also work for his money. This game is about money, it is not about sending you to jail. It is equally true that you cannot fight this battle alone, and a good lawyer is indispensable for you if you wish to remain sane throughout the ups and downs of your legal war. Do not neglect to conduct some market research and talking on the phone and in person with two or three lawyers before narrowing down your choices and / or settling for one.

Fee Enquiries And Initial Spadework

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Do not waste time on trying to find out lawyers' fees over the phone. Most of them will insist that they cannot tell you even a rough idea of their fee until you visit their office. Exceptions are possible if they have worked for you before or if they work near your house, i.e the lawyer is your neighbour. At the same time remember that prudent lawyers do not give absolutely any information over the phone except to provide a time for an appointment. This is done by successful lawyers to prevent time wastage and by struggling lawyers to preclude armchair comparison shopping by people who are unlikely to give real paid business to their offices. Another reason for them to do this is to see the potential client face to face in order to judge what kind of person he is. Remember, it is not just the lawyer who becomes an important person for his client for an extended period. The client likewise becomes a constant presence in the life of his lawyer for a long time. Therefore it should not be surprising if a lawyer seeks to know his client very well before starting a long term relationship with him / her / them.

If any lawyer asks for money for even the first consultation, then make enquiries about his reputation before spending money on him. You might even try to find out what he will charge for the case –in case you decide to engage him– before you go for the first meeting, but such efforts do not always yield results. Such is the nature of the Beast. Not that normally only very good lawyers ask for money for the first meeting. This is done to weed out financially unsound clients and clients who are unwilling to pay, and is done at the first stage itself as you can see. Call it a sort of lawyers' substitute for face control. This can be waived by many of them if you go via any of their former clients –the reasoning being that former clients are unlikely to recommend undesirable clients.

The argument that lawyers who do not charge for the first meeting are cheaper usually turns out to be misconceived if you consider the longer run. Lawyers who charge for the very first consultation are less likely to throw wool over your eyes than so called free consultation providers. Allow me to elaborate.

There is a common trend these days of various NGOs and lawyers claiming to provide free consultation. There is a simple test to check their intentions. If they provide free advice on telephone then they are more likely to be genuine than if they insist on a visit to their office for such 'free' advice. They know like everybody else that if a client goes to visit them for any sort of advice then he is forced to skip at least half a day at his job, and to spend five or six hundred rupees on petrol –thereby causing a small financial expenditure. It is common psychology to not waste time on further enquiries because each enquiry costs money and time, and therefore the NGO in question can reasonably expect you to become their client. This can happen in the case of certain types of lawyers also.

Another trick is to promise low fees initially and then to complicate the client's case with a view to extorting more fees and / or prolonging litigation. This is the commonest trick in our country. It is not wrong to blame lawyers for this situation but at least part of the reason for this state of affairs is a general reluctance amongst members of the public to pay unless forced to pay. Read the section about how not to become the client from hell below to learn more about difficult clients.

Qualities Of A Good Lawyer

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Does the lawyer have his own office or does he share a chamber with a senior or a more successful lawyer? As a rule only sign agreements with lawyers who have their own office or chamber because it is foolhardy to engage a lawyer who does not have a permanent work address. Has he graduated from an unknown college? Avoid lawyers who seem to have gone to a degree shop to get their Ll.B. How comfortable is he with the language of litigation? He will be unable to produce good petitions or to argue smoothly in court if he does not have good English.

Does he have any associates? If there is nobody else in his office then it will become impossible for you to get answers to your queries, to get somebody to represent you in court, or to answer any urgent correspondence in his absence. Is his / her practice based on assembly line and / or wholesale rate litigation? It will be impossible to get personalised attention from such a practice.

Does he give an impression of being a sophisticated person? Bargaining for the lowest possible payoff to your disaffected wife is an integral part of most modern day marital litigation, and therefore it always helps to have a shrewd, perceptive ally. Bear in mind that if you end up paying twenty lakh rupees less than her demand to your wife and simultaneously are forced to spend one or two lakhs extra on the kind of lawyer who enables you to clinch the aforementioned bargain then you cannot say that you have overpaid your lawyer. At the same time remember that a fool and his money are easily parted so it is best to not be a fool.

Does the lawyer have a comfortable office? His office will become an oft visited place during your litigation. You probably do not wish to stand in the sun or rain while waiting for your turn. Neither is it enjoyable to sit on uncomfortable chairs or in a non air-conditioned office.

The Cost Of Litigation

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A very common question from readers is to ask about the cost / fees for litigation of various types including inter alia expected legal fees for anticipatory bail, divorce cases, mutual consent cases, criminal trials, civil claims, writ petitions, etc.

There is no fixed answer for such questions but a general rule of thumb can be stated. The greater the competence, knowledge, and experience of a lawyer, the greater the demand for him; the greater the probability of winning, the greater the fee. Lawyers like KTS Tulsi, Mukul Rohtagi, Ram Jethmalani, Harish Salve, Kamini Jaiswal etc. can command fees approaching 25 to 35 lakh rupees per appearance in court. Jolly Ll.b. characters can ask for ten thousand rupees for bail matters and then promptly cause their clients to go to jail. Successful senior lawyers with offices in very good localities can charge anywhere from 2 lakhs to 8 lakh rupees for entire cases and 1 lakh to 3 lakhs for bail / anticipatory bail matters.

Matrimonial litigation packages may cost from 2 lakh rupees to 10 lakh rupees depending not only upon the ability and experience of the concerned lawyer but also upon how much he or she is in demand. Notice bail plus Anticipatory bail matters for dowry and other simple cases for two to three levels of courts may cost from 35 thousand rupees to 1.5 lakh rupees if handled by a decent lawyer, with the upper limit being around ten lakh rupees for any former additional solicitor general. This is the situation as of early 2017.

The Vakalat / Vakalatnama

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Make a clear financial agreement with the lawyer when you make your decision to engage him. Usually such agreements are verbal but they are honoured. This will help you to keep your costs predictable. However, remember that once you have given X amount of money, you cannot get any part of X back. This is true in most countries including especially poor countries like India.

In addition note that when you sign your first vakalatnama with a particular lawyer, he is obliged to submit it to the court. It has seldom been heard that any lawyer backed out after he submitted the vakalatnama to the court, or that any lawyer refused to submit a vakalatnama to the court after getting it signed by a client. You may wish to include a line in the vakalatnama that you have paid the full and final fees. Alternatively, you may request a note from the lawyer saying that he has received the full and final payment for the particular case. This is because legal fees are mostly paid in cash, and lawyers are reluctant to give a receipt for the exact amount received, although exceptions are fairly common.

Some lawyers are allergic to giving you a copy of the vakalatnama, but most of them are not, in this writer's experience. Good lawyers also give you copies of all your case documents upon request. (It is interesting how the legal profession has protected itself. Architects sign an agreement with their clients in which both parties sign. A lawyer does not sign that he has agreed to represent you, even though you are paying him for it. He rather makes you sign that you are agreeing to let him represent you. The law (made by lawyers) permits lawyers to do this.)

Your Lawyer's Fees And Your Finances

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If you initially started with a per case payment system with your lawyer, consider going in for a package deal for all related litigation as the legal costs start mounting. If you are going in for a package deal, make sure that there is an instalment system for payments. Usually the lawyer takes full payment for each case at the rack rate as soon as the vakalatnama is signed for that particular case, and when the cumulative payments reach the total package amount which was initially agreed, he stops taking further payment.

It may be clarified here that often a client is told that, "You have already paid the rack rate for the first case or first few cases, and I have started work on those cases. The meter for your package deal will start ticking after you sign up for a package deal, and the money paid earlier is gone into my account, and I am not going to count it towards your package." So the package very often is for the cases to be fought AFTER the cases which went by before you finalised a package. Some people (usually lawyers) feel that this is fair, while others (usually clients) don't think so.

One variation of the package deal is that the lawyer agrees to take a lesser amount if the litigation does not escalate beyond a certain quantity, and the full amount if it exceeds that limit.

Another thing to keep in mind is case filing charges, which include court fees and preparing copies of the documents. This is an irritating additional expense, which gets on the litigant's nerves, and the unpleasantness is totally avoidable by including these charges within the initial package agreement. But a surprisingly high percentage of lawyers uses this head to milk the client further. It helps the lawyer that the court does not give any receipt for court fees, which is paid by purchasing and affixing stamps of varying amounts. You may fix a per case (or per case/appeal filing) additional fee under this head, with the amounts being in increasing slabs per case depending upon whether that case is filed in a lower court or a higher court.

In this writer's opinion, any lawyer who charges extra for documentation, photocopying, and/or mailing documents to you is not worth his salt. Make sure you cover this head in your fee negotiation, and that you include a clause that no surprise charges will be demanded at any stage. You may consider agreeing to pay with the condition that no more fees will be payable upto and after all legal options have been exhausted in a particular matter or set of matters.

Many lawyers ask for a lump sum signing amount, and then a per appearance fee. This system works out to be more expensive usually, and the costs are not predictable in this. Further, there is less incentive in this case for the lawyer to bring the litigation to as quick an end as legally possible. Lawyers also sometimes charge for every date on which they reach the court, regardless of the attendance of the opposing lawyer or the judge on that date. This is not a good practice because days on which particular judges are going to stay on leave are invariably announced in advance, more often than not announced on the internet.

Too Many Lawyers? Or Too Few Good Lawyers?

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If you are dealing with a big firm of lawyers, it may not be a bad idea to sometimes slip a note to the youngsters who appear on behalf of the firm on your dates if they do a good job. They are usually underpaid and overworked. Law is a very exploitative profession, just like the rest of professions in India. Remember that the number of lawyers is more than the number of architects, chartered accountants, engineers, and doctors, combined. Almost any tom dick or harry can become a lawyer in our country.

Remember, the legal profession is very competitive, and there is cutthroat competition to get work. Most lawyers are not able to make ends meet, and therefore (theoretically?) the temptation to cheat and to cut corners is very high. Many people say that it is better to hire a lawyer who is successful, and has a brisk if not roaring practice. He is "likely to be scared of losing his reputation and practice, and is practically guaranteed to not fight from both sides at the same time". Others might say that a lawyer can only be judged by his past performance. Such people are likely to prefer established attorneys.

An alternative logic is that the richer a lawyer, the greedier he will be. I personally feel that if a lawyer is needy enough to advertise, then he may be given a chance. There are many forums in which lawyers advertise today, because advertising has been permitted by their bar council.

Suspecting The Motives Of Your Lawyer

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A large number of lawyers are unscrupulous, and they scare their clients to make more money. Sometimes you may encounter two lawyers in the real or virtual world, who may or may not be partners, one of whom scares you and the other calms you down, and soothes your nerves, or offers you a cigarette. The idea here is for you to start trusting the one who calms you down; to pay him for trusting him. It is a surprisingly common phenomenon, with even very good lawyers engaging in this game. It is analogous to the old 'good cop, bad cop' routine. This is a childish attempt to fool you, do not get fooled by this game. Remember, however, that your agenda is to avoid losing too much money, and not to insult or punish the lawyers who indulge in such manoeuvres. Therefore, do not accuse them of cheating to their face. This is not polite. Remember to always be courteous to all the people you meet during the course of your legal battle -even behind their backs. It is bad enough that you wife has become your enemy, and you should not try to add your lawyer to the list.

If you find yourself suspecting your lawyer's behaviour, or if you find yourself suspecting the behaviour of a very large percentage of people who you meet in the course of your legal battle, consider visiting a qualified psychiatrist. It is easy to say that the whole system is corrupt, and that they are all out to cheat you. It is also easy to argue for the opposite of this by saying that you are paranoid, and nobody is out to get you except your wife. Some people may even quote the postmodern saying that just because you are paranoid, it doesn't mean that they are not out to get you (in an attempt to confuse you, or because they themselves are confused). The bottomline is that if you are seriously disturbed then you need to meet a psychiatrist, before things get out of hand and you or someone close to you makes any stupid or dangerous attempt.

Sacking Your Lawyer

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Never fear that dismissing your lawyer may lead to your going to jail. If you and your family are convinced that the lawyer is not doing his job well, then sack him immediately, and tell twenty people. The law gives tremendous protection to you from any attempt by your former lawyer to send you to jail. However, lawyers can also be criminals. He may try something stupid. But he may very well find himself behind bars if he attempts something stupid. The worst you can expect in more than 99 percent of such cases is a civil dispute. Even this is practically unheard of, as who will hire a lawyer who is known to have sued his own former client.

According to the Bar Council rules, you cannot change you lawyer unless the first lawyer gives you a certificate stating that his dues have been cleared. This rarely works in this manner. Even in the famous rape case, the defendants switched back and forth between two lawyers at will. Just give a vakalatnama to a new lawyer, and inform the old one if you feel like informing him. Any prudent lawyer will not prolong his professional embarrassment by litigating for small amounts of money in such situations.

A slightly more Sophisticated Way to Sack Your Lawyer

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Another way to sack your lawyer is to appoint an additional lawyer for your case without sacking the first one. You can continue to talk to the first lawyer or to start ignoring him totally. Also it is entirely up to you whether you want the both of them to appear on your behalf on various court dates. How much instruction you provide to each of them is also your prerogative. This method is recommended for that type of client who is a stickler for rules and feels that a no objection certificate from a sacked lawyer is essential if he is to be replaced. This method is also useful if a client falls into the clutches of a lawyers' mafia –something which is seen all too commonly in our country.

A Client's Role In Fighting His Own Case

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A client invariably needs to contribute to drafting of petitions unless and until he engages a stratospherically expensive lawyer. Many many lawyers are good at courtroom tactics and oral arguments if they are briefed well, and are given a well prepared petition. However, very few are able to do both the drafting of the petition and the courtroom part well. If you are poor enough to need to read this article in minute detail, then you are probably not rich enough to afford a lawyer who will draft all your petitions, applications, replies, rejoinders, notices, agreements, and MoUs competently without requiring heavy contribution from your side.

Most lawyers are too busy or too incompetent to draft your petitions and applications themselves. Since you are going for a lawyer who is successful and affordable at the same time, do not expect him to have time to draft these documents. Expect to spend your time and energy in this effort. Or you may ask a friend who can write well to do this for you. All the same, make sure that your lawyer goes through the petition before it is finalised. There is also normally at least one person whose main job is to draft petitions in any medium sized lawyers' office. Give a chance to this person also to contribute to the drafting, although he will usually be working in an assembly line fashion. Get suggestions from your parents and really trusted people also.

Remember to call the lawyer's office before the hearing date, and to talk to whoever is going to appear on your behalf. Brief this person well, and tell him any details which are important for you, but which you feel are too nuanced or sensitive to deserve a place in the written petition.

If phone companies had to rely on outgoing calls by lawyers to make their money, they would pretty quickly go out of business. Most lawyers never call their clients. Most of them don't even return your calls. A huge percentage of successful ones are very difficult to raise on a phone in any manner which may be called satisfactory. If you meet a lawyer who calls you or even returns your calls, consider yourself lucky, and give him additional points for this courtesy.

Some lawyers are very particular about not wanting to hear anything extraneous to the litigation from you. (This is usually the sign of a good lawyer.) Some of them are even chary of letting you tell them why you wish to take a particular step –especially when you wish to withdraw your petition or to compromise– and may demand instructions in written form from you in such situations. You may try to discuss each such step with your lawyer –before you make a decision either way– instead of presenting it as a fait accompli, in case you are willing to be persuaded.

The Client From Hell

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Also, try not to become the client from hell, a very common species in India. This person says right up front that he has very little money or no money to pay the lawyer, and then does his best to not pay him in the stages according to the agreement. If you want free legal services then you need to contact the free legal aid cell at the local court, and not go to an independent counsel who is working on retainer basis. Such clients are very common and this is one of the main reasons why most lawyers try to take their whole payment in advance. As an architect I have seen how difficult it is to extract fees from most clients in our country. This is why many professionals concentrate on foreign clients, and this is the reason why lawyers sometimes resort to putting their clients in a bad legal situation in order to scare them into paying them.

Another thing this sort of client does is to mistrust his lawyer almost all the time and thus hinders him on his path to success in the case.

No Surefire Formula For Handling Lawyers

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It appears that clients do not handle lawyers. Rather, lawyers handle clients. It is probably best to somehow try to find a lawyer who has a record of treating his clients well. It must be mentioned here that many men who face dowry charges are really worthless people, and deserve the treatment which their wives give them. But lawyers are sharp and they know who is good and who is bad. They should use this knowledge to treat people accordingly.

You may also want to read Essential Things to include in your Legal Strategy and/or NRIs and PIOs: 498a FAQs

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Published by Manish Udar

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Last updated on 20th February 2017
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