Mr. Bapoo Malcolm is an advocate of Bombay High Court and an empanelled Arbitrator. Mr. Malcolm has practice in the fields of civil and criminal law, documentation and arbitration, family court matters and testamentary work. He obtained his degree of law from K C Law College, Mumbai.
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Can you tell us about your journey of law?
Around the 1990s, I ran a factory in Gujarat and simultaneously, I also used to draft legal documents. In any of the proceedings where I was involved, I didn’t like the way plaints were drafted since most of them were more in the solicitors’ language. One day, I asked my advocate if he was going to reply to the said plaint. I didn’t even know what a written statement was back then. Looking at the way the plaint was written, I requested him to allow me to write it in simple English, to which he positively affirmed. Thereafter, I started to draft several documents. People would come to me to get their wills, power of attorney, and all such sorts of things drafted. In 1993, my mother was diagnosed with ALS. So, I decided to shut down my factory, since it was really far from my home, so that I could be with my mom. With the introduction of the internet around that time, I had hoped that I could take up drafting professionally while also looking after my mom. But no one wanted to pay me since I wasn’t a lawyer. They perceived my text to be stupid or meaningless. People would end up using my draftings, but they did not pay. So, after my mother passed away in 1999, I decided to take up law as a profession and get my LLB degree. That’s how law happened. Almost 20-30 years after I had finished my graduation.
I met my wife, Mrs. Divya Malclom, in college. Our plan was that I would take up vastu shastra along with drafting and she would get into litigation. However, life took its turns and she ended up with transactional work while I was stuck with drafting. One day, a colleague of mine asked me to fight a case for him that was lying before the High Court. I was adamant but he was very insistent. After trying to come up with various excuses to cover up for the fact that I didn’t have Rs. 10 to buy a lawyer’s badge. But finally, with his persistence and my wife’s motivation, I decided to take it up.
Of course, we won the case in 10 or 15 minutes. That day I realized the importance of good simple English drafting. We won the case without me opening my notes. My client kept on forcing me to say something. The case didn’t come on the first day, it was placed on the 3rd or 4th day. So before the hearing, I would go to court and note the judge’s reaction and analyze what the judge prefers. Every time I would hear him, I would go home and change my written statements. I did this a couple of times. I was told it won’t come up on the first day and submitted the written statements. I was sure that it was my drafting, the written statements that we won this case. I believe that the arguments are secondary. It was then, I learned the importance of drafting. Drafting should be crisp, to the point, must not be difficult to read and the first three paragraphs should be able to tell the whole story. I have learned another lesson of drafting that written statements should not be more than 10 pages. Usually, no one has time to read that long.
How do you work on your cases?
It is impossible to answer that. Every case is different. If we follow a set routine for all our cases, we are bound to lose. If you want to do justice to your client, I’d say you must think outside the box. You need to strategize each case based on its circumstances. If there was a set formula, you and I wouldn’t be studying law. It will be more like an accountant, adding up the figures and giving the final product.
Can you share some of your memorable cases?
Every case is memorable. The worst cases are not memorable though. It was a case that involved 6 different steps. I went through quite a bit. I generally don’t like to extend cases more than a year or so. This case went for a year and a half. But in this year and a half we won six times straight, right from the challenge to jurisdiction to the appeal. The matter went to the High Court, we won not only we won, but in those days we got INR 25000 for dismissal of a notice of motion where others used to get INR 1000-2000 for the same. How did this happen? The opposition took 3.5 hours right from 11:30 am to past lunch, the complainant on my side then had to speak for another 1-1.5 hours. At a quarter to five, it comes my turn to defend. I said to the judge that these guys have been speaking for 5.5 hours. How do you expect me to finish the work in 15 minutes? Give me some time. Moreover, these guys have spoken out of the book as whatever they have been saying is irrelevant to the case and trying to mislead the court. The judge got annoyed, she said, ‘Aren’t you prepared?’ I said, ‘My lady, I’m always prepared. Since you are willing to give me 15 minutes, I shall emphasize one aspect only. You have found one of the plaintiffs to be a fraudster.’ It was mentioned in the order four times that the plaintiff was a fraudster. So, in the 15 minutes, all I had to do was, to prove that plaintiff 2 and 3 were aware of the fraud, to prove mens rea on their part, and link the case together. I was hardly in business for less than two years but I imbibed certain things from it. The thing was some money had changed hands and I was able to get my hands on a piece of paper. I stated in the court that this money has actually not changed hands and that it was refunded later on. I showed the paper but then, without letting their counsel speak, the client affirmed the contention (this is a bad thing that clients do). The judge looked at me and saw that I was lying, so I said that it is true that the money changed hands, but it did one more time, here is the evidence to it. That was it, 15 minutes, and those 5.5 hours worth of talk, discussion, presenting all the precedents, laws, statues that were brought, in 15 minutes the whole case was destroyed. We were able to prove that the other side was lying. It was a Rs. 25000 fine, an 11-page order, which mentioned, four times, that the opposite party was a fraud.
Most of the cases are won outside the court. Every case is interesting. It depends on you how interesting you can make it. If you are only willing to collect money from the case by filing a written statement, giving a reply to this, or that, it won’t work. Every page you have to read and you have to leave a mark on your hard work.
Do you feel, for a student, being a first-generation lawyer is a matter of concern in litigation?
I am a first-generation lawyer. In my 40 years’ of experience, I feel that while people call the law a profession, it is a business. You are providing a service and are charging for it. And you need to make sure that the service you are providing to your client is excellent. Your clients must be able to rest easily because you have taken over the responsibility. That is what I preach.
What is your take on the internships? How can law students learn while they are on the internship?
It was actually very easy for me since I was working with my lawyer for the past 20 years. But I’ve seen my wife go through this. In fact, in one of her internships, the firm refused to give her the certificate. Apart from the compulsory internships, why do students want to intern? Do they just want to collect certificates? And if so, what is the limit and what good would that be if you don’t take anything from it? It is not where you work, it is the atmosphere in the office, and more so, what you want to do as a part of that organization that actually matters. If the workplace is toxic, get out. Don’t waste your time. How will you be able flourish in an oppressive environment? Our whole system is feudal, where we treat those working below us as our slaves.
I personally feel that internships aren’t necessary. We tell fresh graduates to forget about internships. Take up anything that comes your way, even the small matters like, anything for which one has to go to court. So as soon as you complete your law, put up a board outside your house with your “name” on it and below it, write “advocate”. State to your clients that you won’t fight the suit free of charge, but let the clients pay you whatever they want to pay. Tell them that you would guide them through every small step. Smaller cases come to you today, the big cases would come sooner as well. Who knows you would be the biggest counsel fighting for matters in the High Court and even winning it. Most counsels are easy to tackle, I can assure you that, as most counsels don’t study much.
What is the one piece of advice you would like to give to our readers?
No, no. My advice to the youngsters is don’t ask for advice. There is no such thing. What advice can we give? Work hard or be honest? This is common sense. There is no set formula to success. I would rather suggest to the readers: “Just do your own thing.”