CONSIDERING LITIGATION IN INDIA | Part VI – What happens outside court is just as important!

This aspect of litigation is more critical than what a party may envisage it to be. While engaging in any kind of litigation one must be sensitive to the implication of events that occur outside court. One may not realize, but what transpires outside court could be used by either side to their advantage before a court. In this article, we will explain how and why the conduct of litigants outside court should be consistent with the arguments and pleadings of litigants in court. Some key facets that one must ensure prior to and during the life of the litigation proceedings, are discussed below.

Conduct during litigation

Many a times litigants perceive the proceedings in court to be an altogether different matter than what transpires in day-to-day interactions. Nothing could be further from the truth! The conduct of a litigant related to the matter in litigation is open to scrutiny and can be questioned before a judge during arguments. The formal submissions made in court have great value and litigants cannot make arguments beyond the scope of the submissions. However, during oral arguments when a side seeks indulgence from the court, the conduct of parties plays an important role. For instance, often a party may appear before the court at the very last minute to seek indulgence, but on the other hand they may not have responded to requests from the other side for updates or follow ups. This speaks volumes about their conduct and sets a lasting impression in the minds of the presiding judges. If a presiding judge is irked by the conduct of a party outside of court, it could greatly impact the proceedings inside of court for that party.

Third-party and inter-party communication

One should not neglect external or inter-party communication because what may not seem to hold enough relevance, could ideally become one’s ammunition. Sometimes communications / correspondence can be used effectively to extract admissions from the other side which can be incriminating in nature. These incriminating statements and admissions made during inter-party communication can be used effectively to strategize the way forward. Especially when deciding on initiation of alternate litigations, interim applications for additional reliefs, etc. it could have a great impact to create pressure which could even accelerate the process for reaching some kind of settlement.

Communication, discussion and strategy

Prior to and through the course of litigation – communication, discussion and strategy are indispensable and mutually co-exist. Engaging in discussions and communication with the other side during the litigation can help in more ways than one. Strategized communication between parties can create an advantageous paper trail. Most litigants rarely consult their counsels on this aspect nor give it much importance; but this strategy pays rich dividends. Additionally, always remember to keep the channels of communication open for amicable discussions and settlement requests.

The harmony between one’s conduct outside court and the pleadings made in court are important. One must be mindful of: (i) continuous strategy involvement; (ii) avoidance of ego clashes, personal comments and usage of aggressive language in modes of communication with the other side; (iii) review all pleadings drafted by counsels; etc. These aspects should be carefully dealt with and preferably after consultation with the litigation counsels involved in the matter.

Reputational damage

A party must try to utilize every ounce of benefit that it could gain through using external mediums of pressure as and when the opportunity presents itself. Newspapers, online portals etc. are always on the watch to cover interesting stories. One should analyze the scope of creating publicity through these external mediums which adds tremendous pressure on the opponent. An independent research or even hiring private investigators can do the job to gather intelligence. If this information is utilized in an appropriate manner, it could add the necessary pressure under which one could create an additional edge over the opposite party in the proceedings.

Tactful negotiations

Just because litigation proceedings are ongoing, does not mean that litigants cannot explore discussions for a possible settlement. A litigant must always be open for discussions to arrive at an amicable and fair settlement. However, the conduct for any such discussions on matters should be reviewed and assessed to ensure that the communication cannot be used to weaken a litigant’s position. All communication for settlement proposals should be proposed as hypothetical scenarios and should always be cross referenced to the ongoing litigation and positions taken there.

Conclusion

As emphasized earlier, the end objective for any commercial litigation in India should be to settle the dispute on the most favorable terms. However, this would obviously depend on who has the better bargaining position. The synergy between what goes on outside and inside court can prove to be very useful for a litigant to achieve the best results. It will also protect a litigant from being caught off guard by the other side where they use communications made inside or outside court against a litigant. In our next article, we will explain how one should always keep their ‘options’ open to seek the desired final relief and/or favorable settlement.

Anshu Bhanot | Of Counsel, Veyrah Law; Priyanka Zaveri | Associate, Veyrah Law

Views expressed above are for information purposes only and should not be considered as a formal legal opinion or advice on any subject matter therein.