Once you decide to move the court, you may have to choose a lawyer and prepare for the expenses at the court. The Government charges fees for conducting the case, depending upon the nature of the cases and the court.
The Court Fees Act deals in detail with this aspect. You will have to bear some additional expenses like charges for typing, printing and other services. If you win the case, you may get the full or part of the cost if the court so orders.
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The court awards cost to the winning party as its direction in certain cases. The practice varies from court to court and the rules are slightly different in each state.
You can appoint any lawyer of your choice, depending on your capacity to pay; there is no fixed scale or standard rate of payment though the courts have framed rules laying down the fees payable to lawyers for their services at each stage.
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These remain only as ideals because in practice, they may demand more. A lawyer ordinarily decides the fees depending upon his standing and your capacity to pay and estimating how difficult your case is.
Most of the time the lawyer demands part of the fees in advance and settles the final amount at the end of the case or he may require payment on a per-hearing basis.
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He might also demand a lump sum including stamp fees, transport and other charges.
You can negotiate the mode of payment with your lawyer. You might do well to keep in mind the proverb. ‘A man may as well open an oyster without a knife, as a lawyer’s mouth without a fee.’
A lawyer can generally be presumed to be honest in his handling of your case because he has accepted it in the first instance. Moreover, if you are dissatisfied with his service, you can replace him without any embarrassment to either side.
There is hardly any need to worry about your lawyer colluding with the opposite party; few layers of substance are known to have done it.
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He can also be punished under the Advocates Act if he does so. Lawyers who hang around the courts to solicit clients are also violating their code and can be punished for it.
A lawyer is bound to keep secret everything his client tells him. Even courts cannot force him to break this confidence.
Moreover, he need not believe in the justice of his client’s case or innocence, but he cannot make false statements.
Only persons enrolled as advocates with one of the State Bar councils can practise law. There are two classes of advocates and Senior Advocates.
Advocates may with his consent be designated as a Senior Advocate, if the High Court of the Supreme Court is of opinion that by virtue of his ability, standing or special knowledge or experience of law, he deserves such distinction.
A senior must deal with clients only through ordinary advocates. He cannot accept a fee from clients.
The law relating to the legal profession is governed by the Advocates Act 1961 and the rules framed by the Bar Council of India. The constitutions of the State Bar Councils and the Bar council of India are outlined in the act.
If you think your lawyer had taken exorbitant fees or acted negligently in your case causing you loss or otherwise he was guilty of professional misconduct, you can make a complaint to the Bar Council.
Under Sec. 35 of the Advocates Act if any persons makes such a complaint and the Bar Council has reason to believe that the advocates had been guilty of such misconduct, the complaint will be referred to a disciplinary committee.
The committee may reprimand or suspend the advocate or remove his name from the rolls. The advocate can, however, appeal to the High Court or the Supreme Court.
If you have suffered due to the negligence or utter ignorance of a lawyer while conducting your case, you may remove the consumer forum in your district and get compensation from him. Since he is providing you a service for a fee, he is within the jurisdiction of the consumer courts.
There are certain unwritten rules regulating the standards of professional conduct and etiquette, though most of them belong to the past.
Every advocate, for instance, must bear in mind that anyone genuinely in need of a lawyer is entitled to legal aid even though he cannot pay for it fully and adequately.
Free Legal Aid:
The constitution promises free legal aid as one of the directive principles of state policy. The government passed the Legal Services Authorities Act in 1987 to establish a machinery to provide legal aid.
The extremely poor people, backward classes, labourers and women are eligible for legal aid. The act also visualises legal aid establishments at the district, state and national levels.
But enforcement of this welfare law has been extremely tardy, so those who need legal aid still have to depend upon voluntary bodies run by public spirited lawyers or welfare organisations.
The quality of a free legal aid lawyer may not be very high, as the more efficient lawyers cater to the rich clients.
According to the Advocates Act, Sec. 9A, Bar Councils may constitute legal aid committees consisting of five to nine members to help needy persons. So every region might have legal and committees.
The role of the legal aid groups is not always to conduct cases. In fact, their main achievement in keeping litigants away from the courts, thus saving money and trouble to all parties.
A number of matrimonial cases, family disputes. Tenancy cases and accident claims can be settled before reaching the court. Legal aid societies think of court action only as a last resort.
Legal aid could help a lot of indigent people like the backward classes, workers and illiterate women. Generally there are three tests applied to each case. First the means test, that is, economic condition of the person seeking help.
The second is the reasonable test or whether it is socially necessary to grant aid in a particular case. Last is the prim facie test, to see whether the claim has a ring of truth and is establish able by legal proceedings in criminal cases, only the means test is applied.
The Criminal Procedure Code, 1973 provides legal aid in certain criminal cases to the accused (Sec. 304).
When the accused is not represented by a lawyer in the court, and if it appears to the court that the accused is too poor to engage one, it will assign an advocate for his defence at the expenses of the Government.
The High court of each state will make rules for selecting defence lawyers for such purpose and the facilities to be allowed to them.
The courts have usually a panel of lawyers willing to take up such cases. These advocated are called ‘amicus curiae’ or ‘friends of the court’, because they help the court to arrive at his decision.
In a civil case, if a person cannot afford even the court fees, he can apply for exemption from it. He must file a petition before the court along with an affidavit disclosing all the properties to which he is entitled and their value.
The court, after making enquiries, will waive court fees in fit cases. The court may also help the petitioner to find an advocate.
However, a pauper is exempted only from court fees and deposit of security. He will nevertheless be required to pay printing and other charges, which alone could be too prohibitive for the poor man. But this anomaly still exists under the present rules.
Petitions by Post:
It is not always necessary in a case to have a lawyer to start with. Very often convicts in jail manage to write to the Chief Justice of the High Court or the Supreme Court complaining of ill-treatment or inhuman conditions. The Courts have taken quick action regarding these complaints.
Petitioners-In-Person:
Several petitioners argue their cases themselves in the court and save the lawyer’s fees. Normally, it is beyond an ordinary man’s capacity to known all provisions of law relating to his case and previous judgements relating to the issue.
But litigants are a persistent lot and this author has watched several petitioners winning their point in the Supreme Court itself.
A litigant in person must put down his points in his petition concisely and precisely. He must first state the fact of the case, then his arguments on law points. Each para must be numbered for easy reference.
All necessary documents and evidence should b attached, including the affidavits, which are sworn testimonies before an officer authorised by the Court. The Court Fees Act gives details of the fees payable in each case.
The petition, duly drawn up and carrying stamps should be filed before the filing clerk. The clerk then gives a date when the case will be taken up. The petitioner must appear on that day in the court.
The judge would have read his petition and he would give directions after hearing the petitioner, if necessary. The petitioner must be ready with all facts and questions of law when he is appearing himself lest he tax patience of the judge.
He must not be emotional and irritate the judge. It is generally difficult for a petitioner in person to hide his emotions and difficult for a petitioner in person to hide his emotions and bitterness and this is the main pitfall for him.
Public Interest Litigation:
In recent times, a class of cases, called public interest litigation, has been making headlines in the newspapers.
A lawyer moving the Supreme Court of the High Court for the release of under trials who have been in jail for decades, a journalist seeking the enforcement of the fundamental right to life and liberty of helpless women traded in the flesh market.
A social worker doing the same thing for the bonded labourers we hear of such instances more often.
The Supreme Court has laid down that whenever there is an infringement of a fundamental right, any conscientious citizen can move the court for setting things right.
When the person whose life, liberty and other fundamental rights are being violated cannot approach the court due to ignorance, poverty, or when he or she is prevented from doing so by others, any citizen can move the High Court or the Supreme Court for the enforcement of the rights.
The court will not ask him, what business you have as long as his intentions are good. Technically this right is called locus standing or the right to be heard.
Using this right, any one can bring to the attention of the court the injustice around him. He can also provide additional information to the court by joining as an Intervener in a Case Already Progressing in the Court.
Lok Adalats:
As the courts are overburdened with backlog of cases, a new device to settle disputes outside the courts has been evolved under the Legal Services authorities Act 1987.
It empowers Lok Adalats to withdraw cases from the regular courts and to settle disputes by mutual consent.
Most cities have Lok adalats, organised by legal aid bodies or welfare organisation. Many litigants now prefer Lok Adalats to the long and expensive gamble in the courts.