An advocate is a person who argues in favour of his clients in courts of Justice . Advocacy is pleading in support of his case. Advocacy is not a craft but at calling.
Definition of 'Advocate' -
Section 2(1) (a) - " Advocate" means an Advocate entered in any roll under the provision The Advocate Act 1961.
If a person fulfills the conditions required for an admission as an advocate, he may be enrolled as an advocate by the State Bar Council. The conditions to be fulfilled for being enrolled as an Advocate have been stated in Section 24 of the advocate act 1961. An application for an admission as an advocate shall be made in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposed to practice. The State Bar Council is required to refer every application for admission as an advocate to its enrollment committee, which shall dispose of the application in the prescribed manner. (See also... The Essential functions of The great advocate)
Elements of advocacy -
The following are 8 essential elements of advocacy.
A) Accept Brief in the Court -
An
advocate is bound to accept any brief in the Courts or Tribunal or
before any other authority in or before which he is professes to
practice at a fee consistent with his standing at the Bar and the nature
of the case.
B) Filing the case -
In civil cases of suit is required to be instituted by presenting a plaint to the court. The statement of a plaint regarding his claim he is taken as a plaint. The plaintiff presents his case along with cause of action etc, through the plaint. The plant is also called the written statement. Every pleading is required to contain a statement in a concise form of the material facts on which the party filing the plaint relies for his claim or defense.
Pleading- There are four fundamental principles of pleadings:
1) Every pleading must state Fact and No Law.
2) It must state all the material facts;
3) It must state only the facts on which the party pleading relies, and not the evidence; and
4) It must state concisely but with precision and certainty.
The object of the pleading is to make both the parties aware of their cases and allegations against each other. Every pleading shall be signed by the party and his pleader. Order VI of the Civil Procedure Code deals with pleadings. It contains several rules relating to pleading. An advocate shall follow the rules in his pleading. Suit is commenced by presentation of the plaint.
C) Examination-in-chief -
Examination-in-chief is the way in which advocates present almost all the evidence through witnesses, whether as Counsel for plaintiff or defendant. Examination of expert witnesses and admission of expert opinions are also vital part of advocacy for which special skill is to be achieved according to the expert evidence.
D) Cross-examination -
The examination of a witness by the adverse party shall be called his cross examination. Witness shall be first examined-in-chief and cross-examined, later re-examined. The witness maybe cross-examined to show his bias or prejudice, to show an interest in the outcome of the case. Cross-examination should be carefully done to the extent when there is a reasonable chance that it will advance their clients theory of the case or undermine some elements of the opponent's case or defense. Good cross-examination is an art and it is learnt from experience and from observing senior Advocates while cross-examining witnesses as well.
In cross-examination every question is required to be asking with an object. By cross-examination discrepancies in the evidence of the opponent may be created.
Cross examination of witness is a procedural matter. It should be done according to the provision of the Indian Evidence Act, Civil Procedure Code, Criminal Procedure Code and the provisions of the law.
While cross-examining witnesses, an advocate must not offend the personal feelings of the opposite party.
Cross-examination must relate to the relevant facts. An advocate has no right to disgrace and bully a witness by putting offensive questions. The witness may be cross-examined on the same point and if there is a contradiction in relation to the transaction, the same can be brought to the notice of the court during arguments. Cross-examination should not be misused by an examination which is unnecessarily too long, ambiguous, improper, aimless and uncertain.
In cross examination an advocate should ask only leading questions cross examination is an art and the advocate should use it without losing temper. Questions which affect the credibility of a witness by attacking his character should not be asked.
It is to be remembered that crossed examination should be carefully done and to the extent when there is a reasonable chance that it will advance their clients theory of the case, or undermine from elements of the opponent's case or defense.
The opponent advocate should not interrupt the cross examining advocate. Cross examination is a right of the Advocate but it should not be misused.
(See.. Cross Examination of Witness under The Indian Evidence Act)
E) Re-Examination -
The examination of a witness subsequent to the cross examination by the party who called him is called Re-Examination. The main object of the Re-Examination is to explain the points arising out of the cross-examination. And the Re-Examination is required to be directed to the explanation of the matter referred to the in cross examination. In the Re-Examination an attempt is to be made to restore the credit of the witness attacked during the cross-examination. In re-examination leading questions must not be asked. If new matter is, by permission of the court, introduced in re-examination, the adverse party has the right to cross-examine upon that matter.
F) Arguments -
In arguing a case strongest points should be emphasized and the weak points should not be raised as far as possible. Arguments on each issue should be written out. The name of witnesses and the documents in support of the issues should be clearly noted.
An advocate should study the record of the case with the object to discover the weak points and also the strong points in the opponent's case. An advocate should prepare the argument in such a way as to meet them and prove them as insignificant. If the Advocate finds that a point of the opponent is very strong and cannot be met, then it is better to concede it. The weak points in the opponent case should be emphasized much as so as to prove that the weakness is of such a nature that in spite of everything else cannot be sustained.
G) Appeals:
Arguing of appeals in a court of law is also of considerable importance. In the previous judgment, the judge will have some reasonable ground. A careful study of the case is required to find the points which were not noticed by the Court below.
B) Filing the case -
In civil cases of suit is required to be instituted by presenting a plaint to the court. The statement of a plaint regarding his claim he is taken as a plaint. The plaintiff presents his case along with cause of action etc, through the plaint. The plant is also called the written statement. Every pleading is required to contain a statement in a concise form of the material facts on which the party filing the plaint relies for his claim or defense.
Pleading- There are four fundamental principles of pleadings:
1) Every pleading must state Fact and No Law.
2) It must state all the material facts;
3) It must state only the facts on which the party pleading relies, and not the evidence; and
4) It must state concisely but with precision and certainty.
The object of the pleading is to make both the parties aware of their cases and allegations against each other. Every pleading shall be signed by the party and his pleader. Order VI of the Civil Procedure Code deals with pleadings. It contains several rules relating to pleading. An advocate shall follow the rules in his pleading. Suit is commenced by presentation of the plaint.
C) Examination-in-chief -
Examination-in-chief is the way in which advocates present almost all the evidence through witnesses, whether as Counsel for plaintiff or defendant. Examination of expert witnesses and admission of expert opinions are also vital part of advocacy for which special skill is to be achieved according to the expert evidence.
D) Cross-examination -
The examination of a witness by the adverse party shall be called his cross examination. Witness shall be first examined-in-chief and cross-examined, later re-examined. The witness maybe cross-examined to show his bias or prejudice, to show an interest in the outcome of the case. Cross-examination should be carefully done to the extent when there is a reasonable chance that it will advance their clients theory of the case or undermine some elements of the opponent's case or defense. Good cross-examination is an art and it is learnt from experience and from observing senior Advocates while cross-examining witnesses as well.
In cross-examination every question is required to be asking with an object. By cross-examination discrepancies in the evidence of the opponent may be created.
Cross examination of witness is a procedural matter. It should be done according to the provision of the Indian Evidence Act, Civil Procedure Code, Criminal Procedure Code and the provisions of the law.
While cross-examining witnesses, an advocate must not offend the personal feelings of the opposite party.
Cross-examination must relate to the relevant facts. An advocate has no right to disgrace and bully a witness by putting offensive questions. The witness may be cross-examined on the same point and if there is a contradiction in relation to the transaction, the same can be brought to the notice of the court during arguments. Cross-examination should not be misused by an examination which is unnecessarily too long, ambiguous, improper, aimless and uncertain.
In cross examination an advocate should ask only leading questions cross examination is an art and the advocate should use it without losing temper. Questions which affect the credibility of a witness by attacking his character should not be asked.
It is to be remembered that crossed examination should be carefully done and to the extent when there is a reasonable chance that it will advance their clients theory of the case, or undermine from elements of the opponent's case or defense.
The opponent advocate should not interrupt the cross examining advocate. Cross examination is a right of the Advocate but it should not be misused.
(See.. Cross Examination of Witness under The Indian Evidence Act)
E) Re-Examination -
The examination of a witness subsequent to the cross examination by the party who called him is called Re-Examination. The main object of the Re-Examination is to explain the points arising out of the cross-examination. And the Re-Examination is required to be directed to the explanation of the matter referred to the in cross examination. In the Re-Examination an attempt is to be made to restore the credit of the witness attacked during the cross-examination. In re-examination leading questions must not be asked. If new matter is, by permission of the court, introduced in re-examination, the adverse party has the right to cross-examine upon that matter.
F) Arguments -
In arguing a case strongest points should be emphasized and the weak points should not be raised as far as possible. Arguments on each issue should be written out. The name of witnesses and the documents in support of the issues should be clearly noted.
An advocate should study the record of the case with the object to discover the weak points and also the strong points in the opponent's case. An advocate should prepare the argument in such a way as to meet them and prove them as insignificant. If the Advocate finds that a point of the opponent is very strong and cannot be met, then it is better to concede it. The weak points in the opponent case should be emphasized much as so as to prove that the weakness is of such a nature that in spite of everything else cannot be sustained.
G) Appeals:
Arguing of appeals in a court of law is also of considerable importance. In the previous judgment, the judge will have some reasonable ground. A careful study of the case is required to find the points which were not noticed by the Court below.
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