The clients are to be induced to disclose what is there within their knowledge pertaining to the case. They may go in every detail, but not revealing anything of substance. These are the moments when the counsel has to display his patience in want of which he may miss something vital for his cause. The counsel concerned should inculcate the habit of jotting down the narration of his client, as his memory may deceive him. The client should be asked to repeat him again and again, for there is greater probability of revelation of something important during the course of second or even third recital. This is also the assurance that the client utters what exists in fact even during his subsequent recitals.
One should be reluctant in placing easy reliance on just what the client has uttered. They may be sure of arranging numerous witnesses and documents while in reality it may not be so.
Sharswood asserts that, “In a word, the best advocate for learning the merits of a cause is he that is least credulous; for a client is often ready to promise everything, offering a crowd of witnesses and sealed documents quite ready and averring that the adversary himself will not even offer opposition on certain points. It is, therefore, necessary to examine all the writings relating to a case. It is not sufficient to inspect them; they must be read through; for very frequently they are either not at all such as they were asserted to be, or they contain less than was stated, or they are mixed with matters that may injure the client’s cause, or they say too much and lose all credit from appearing to be exaggerated. We may often, too, find a thread broken, or wax disturbed, or signatures without attestation; all which points, unless we settle them at home, will embarrass us unexpectedly in the forum; and evidence which we are obliged to give up will damage a cause more than it would have suffered from more having been offered”.
The counsel has to be extremely circumspect in the gauging of statements made by his client. There is to be a thorough scrutiny of all that they have stated. They may call something factually existing in their case, but feel difficulty in the proving of them. There are the clients who cannot even narrate their case. There are also the clients so cunning that they would not disclose what is true to their cause.
Justice Donovan’s views are very pertinent in this concern when he says that, “In your intercourse with clients, act with great caution upon the statements that they themselves have made. Sift those statements carefully; cross-examine your clients as to the facts and be careful to ascertain not only what they deem the facts of their case to be, but what they can prove them to be. Some clients are stupid and some are not disposed to be frank with their own counsel.”
If opinions are rashly given upon the partial and imperfect statements of clients, it will often be found that, though the opinion upon the facts stated was sound, yet that some fact not stated changes the whole character of the case and defeats the action or the defence and the lawyer often bears the responsibility of an error that should rest with the client.
When the counsel has gathered enough information that is needed, next step should be his interrogation on other aspects touching his case.
“After eliciting his own knowledge from the client”, says Sharswood, “he should be questioned exhaustively as to every quarter where other material facts may exist.”
The client can usually mention persons who witnessed important parts of the transaction in hand; he may have an inkling of relevant writings and of their whereabouts; or he may be able to tell of circumstances which have a bearing upon the case.
All the facts and circumstances of the case should be thoroughly weighed. There may be other sources of gathering information which should never go escaped. The counsel may snatch supporting information which may not be supplied by the client, but which may be elicited when the witnesses are personally met and the documents are thoroughly searched. It should not be forgotten that the client is ignorant of law, and for this, he may not sift what is supporting his cause and what goes against him.
There is this affirmation in the Conduct of Law Suit written by Read that, “Inquire in every direction into facts; see your client himself; ask for and look at his documents, and consider them well; go to the witnesses or send for them and hear for yourself whether they can and will really say what your client tells you they can and will say; and if you entertain serious doubts, take an opinion on a case, candidly drawn, not slurring over or concealing features which you do not like and let all this be done before the writ issues.”
Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on Law.