Difference between Trial Court Advocacy And Appellate Court Advocacy

Those, who are aspiring for Litigation, always want to know: what is the difference between practicing at the Trial Courts and practicing at the Appellate Courts. Besides, which would be better?

I have tried to answer this question in the following terms:
As we know, trial courts are the courts of original jurisdiction. Trial is not defined anywhere. However, the meaning is clear. It is a judicial examination of evidence, which may be of different kinds: documentary, oral, circumstantial or even electronic. Normally, ‘Trial’ would start after completion of pleadings in a civil case, more particularly, when the court has framed the issues and both the sides have submitted the list of witnesses. In Criminal, it would start after framing of the Charge in warrant triable cases before the court of Magistrate or Sessions court and in summons triable cases after taking a plea.

Hence, now to understand the trial court advocacy, we go to the root of the matter, because before the trial court: initiation of legal proceedings would commence, when plaint or the complaint has been filed before the competent court. In trial court, there may not be any counsel practice of briefing by the advocate, because, the trial court is like lex fori – it is the law of the place, where the dispute has been brought in the first place for the adjudication.

The litigants, here directly come to the advocate to sort out their grievances. Therefore, client counseling plays significant role before the trial courts, as generally there is hardly any conferences between the advocate and counsel, as one has to take direct instructions from the litigant/s only, because s/he knows about the evidence. Before the trial courts, facts are much more important to identify and analyze. How litigation would start that depends upon the advocate of the trial court/s. In many cases, there are two three remedies or recourses to begin with the litigation, as civil and criminal litigation for the same issue or same subject can go on simultaneously and so, advocates are required to explain to their clients that which would be more suitable for him/her and how s/he can proceed appropriately.

Another important point in trial court advocacy is to plan and design the strategy: how we plead, how we can foresee, what evidence we put forward and what we can imagine the counter attack by the other side are the part of this sensible strategy. Here, thinking is more important than mere reading of the facts. One must get an overview of the entire situation that suppose this matter reaches to the High Court, whether this pleading would look sound? How the higher court/s will see our pleadings. Considering this in mind, one has to draft. It is common knowledge to all that drafting is not just writing.

One may write anything, but when it comes to drafting: we have to choose each word very carefully and then put it at an appropriate place with simple sentence formation. One is required to select a particular word or phrase in a way, which is unambiguous and very easy to understand for the judge. Hence, one is required to visualize the picture in the Court that suppose, the judge is reading my pleading – it would be clear to him/her to grasp the meaning what I have stated. This is very much vital in trial court advocacy and then, while leading or adducing the evidence; one is required to prepare for examination in chief and cross-examination and if need be: re-examination. This can be learnt while you jump in the water of hardcore area of evidence. So, if someone is comfortable with these entire multiple and divergent skills, as per his/her aptitude, trial court advocacy can be opted in the beginning of the career and if you succeed, it will last long.

On the other way, Appellate Court Advocacy is totally different and slightly distinctive. Here, one has not to bother for pleadings and affidavits and what kind of evidence will be led. The appellate court is meant for a further opportunity to the aggrieved litigant who lost before the court of original jurisdiction. First Appeal is a valuable statutory right conferred by most of the Acts. However, Civil Procedure Code also provides Second Appeal on substantial questions of law, but in Criminal, there would be only an Appeal and no second appeal.

Now, the appellate court advocacy differs from the trial court advocacy in the manner of conducting the cases. Before the appellate court, usually only the aggrieved party has to take much pain to try to reverse the finding of the trial court and so, the first question in most of the matters asked by the Appellate Court is: what is the error committed by the trial court? How the trial court has gone wrong? In what manner? Where is the discussion on it? Therefore, in reply, the appellate court advocate has to point out the errors and/or mistakes committed by the trial court in giving the reasoning on the issues by demonstrating that this evidence has not been considered at all or that evidence has been clearly overlooked by the trial court. This interpretation is wrong, that construction of document is erroneous… etc.

However, for finding faults in the judgement of the trial court one is required to see the entire record and proceedings of the trial court, as without examining it, one cannot reach to the conclusion that how it is wrong, except in cases of grave jurisdictional error or pure question of law apparently wrongly decided by the trial court on the face of it. Appellate Court Advocacy sometimes looks cool, but not so, as one has to envisage the intricacies of proceedings happened before the trial court and then, s/he can find out actual errors in the reasoning of the trial court.

Those who have actively participated in moot courts, for them, relatively appellate court practice is comfortable, but here the real scenario would be different. Your performance matters, but merits of the case count more. It is common experience of all the advocates that most or judges would like to confirm the judgement of the trial court, if it is in order and mainly satisfy the conscience of the appellate court. Some advocates used to say that for reversing the judgement of the trial court, the appellate court has to exercise more and has to go into minute details, which is hardly necessary for re-examination of the fact in issue on record and so, trial court’s judgement is affirmed. Sometimes appellate court would not like to use its discretion, though other view is possible, but they think that the trial court was in more advantageous position to consider the actual evidence tendered before it and so, they refrain from substituting their own view. The law is also settled on this point, as re-evaluation or re-assessment of evidence recorded before the trial court is permissible, but only because another view is possible, the findings arrived at by the trial court should not be disturbed or discarded.

Hence, I can only say in the end of this discussion that trial court advocacy is much relied on facts of the case, whose area and scope is wider, whereas appellate court advocacy is fought on finding faults from the judgement of the trial court as well as errors in interpretation of law and construction of documents or other evidence, whose area and scope is not so extensive and broad. One can choose either or both, depending upon his/her interest and capacity to bear the burden of precinct of legal practice.

Author Mr Kashyap Joshi, Advocate Gujarat High Court, Visiting Faculty at Institute of Law, Nirma University, Ahmedabad

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