An evening with Mr J Sai Deepak

Introduction

On March 8, we had an insightful session by Mr J Sai Deepak, Advocate, Supreme Court of India. Mr Sai Deepak offered a nuanced and insightful overview of the intricacies, challenges, and opportunities inherent in the Indian litigation system. From navigating procedural hurdles to advocating for clients, he provided deep insights on the realities of litigation practice in India. His insights are invaluable for both aspiring and seasoned legal professionals.

About Mr J Sai Deepak

Mr J. Sai Deepak is a distinguished litigator and an increasingly important public figure. He holds a degree in mechanical engineering from Anna University and a law degree from IIT Kharagpur. As an arguing counsel before the Supreme Court of India and the High Court of Delhi, Mr Sai Deepak has made a mark in various landmark cases: the Sabarimala Ayyappa Temple, the Sri Padmanabhaswamy Temple, the Basmati Geographical Indications, and the Marital Rape Exception in the Indian Penal Code.

Mr Sai Deepak is also a prolific writer and an erudite scholar, contributing insightful perspectives on constitutional issues to leading newspapers and magazines. His best-selling books, "India That Is Bharat: Coloniality, Civilisation, Constitution" and "India, Bharat and Pakistan: The Constitutional Journey of a Sandwiched Civilisation", reflect his deep understanding of India's legal and socio-political landscape. Mr Sai Deepak has been honoured with the Young Alumni Achiever's Award by his alma mater, IIT Kharagpur, in 2019.

Mr Sai Deepak began his career in 2009 with Sai Krishna & Associates in their patent litigation team. Very quickly, he made his mark and became an Associate Partner. Over time, he has diversified into competition law, economic offences, and more recently constitutional law. Since 2016, Mr Sai Deepak has been an independent lawyer. About 60% of his practice is related to IP. Other major areas of work are IBC/Company Law and constitutional law. Since 2023, Mr Sai Deepak has been special counsel for SEBI specializing in securities fraud.

Mr Sai Deepak does not consider himself to be an author as that is not his primary source of livelihood. He is primarily focused on litigation, a profession that demands focus and minimal distractions. Between 2016 and 2018, Mr Sai Deepak did teach at some law schools. But since 2018, he has been busy in his practice with little time to teach., though he enjoys teaching.

In the last 15 years or so, the legal profession has evolved significantly. But Mr Sai Deepak is disappointed with the falling standards of work ethics of the new generation. Various distractions including social media undermine their ability to concentrate and work hard. Hard work is a necessary condition for growth. Legal acumen and IQ make up one half of what it takes to succeed as a lawyer. The other half comes from hard work.

Careers in litigation

Mr Sai Deepak identified key milestones in one’s year.

• In the first 3 years, we should be useful to our seniors: research, drafting, maintaining files and tracking.
• In years 4-5, we should try to be useful to the clients, understand how courts operate and human behaviour.
• In years 6-7, our attempt should be to ensure that the court takes us seriously. By this time, we should become aware of what area we are good at. We should be clear about a few things. Should we work in a solicitor’s office, become an arguing counsel, or join as an employee of a law firm? Here, what is important is not just what we think of our abilities but also what others think.
• After 7 years, we should add more areas to our bucket. If we do not do this, our skills will saturate, and the brain will not be able to digest new topics.

It is important to read broadly and understand the larger ecosystem. If we are in IP for example, we must have knowledge about adjacencies such as arbitration, taxation, contractual disputes. By having broad expertise, we can also serve the clients better and ensure that they do not have to work with any lawyers.

On how he planned his career

It is ok to have a broader vision and experiment in many areas. But coming from a lower middle-class family, Mr Sai Deepak could not attempt to do many things, More so, as he had already made a shift from engineering to law. In the process, he had lost some time though his analytical skills from engineering days are being put to good use in the practice of law. Having decided to go into law, Mr Sai Deepak was crystal clear about, what he wanted to do in law, how to go about it and the time frames.

Mr Sai Deepak chose IP as that is where his engineering background fit in well. In other areas of law, people with a humanities background are preferred. He looked at IP as a stepping stone till the profession was willing to accept him in other areas. Though he was interested in constitutional law, he realized it was not a paying profession. So commercial litigation made sense.

In his final semester at Law School, Mr Sai Deepak’s internship was at the John F Welch Technology centre of GE in Bangalore. He had to study the patents filed by competitors to help GE to evolve its own IP strategy. Mr Sai Deepak realized that he was quite good at this kind of research, but he was bored to death. He realized that this was not what he wanted to do. He was more interested in being in court. So, he did not accept the Pre Placement Offer from GE.

Mr Sai Deepak was recommended to the famous lawyer, Mr Gopal Subramaniam, but the pay was below his expectations. So, he could not take up this assignment.

Commercial litigation needs much sharper preparation. Constitutional law is broader and more vague. Commercial litigation can thus serve as a boot camp for new entrants. Considering all these factors and the higher pay, he decided to join Sai Krishna & Associates. Over time, he added other areas of expertise.

It is important to have conviction in our stand. During the placements season, Mr Sai Deepak stayed away from other companies which came for recruitment to the campus. He was a good student and a popular blogger. So, some companies decided to meet him at the guesthouse late night. When Mr Sai Depak articulated his goals, they did not press further. The message is that when we have many options, we should have excellent reasons to say no to some of these options.

The career decisions we make should be objective. We should evaluate them from the lens of a third party. A good level of situational awareness is important. We should choose an option not for the brand or the money. It should fit in with our interest and provide the necessary exposure.

On the role of internships

Practitioners who are visiting faculty and internships offer a window into the real world. Unfortunately, there are restrictions on teachers when it comes to practicing law. So, internships are critical for linking theory to practice. Internships are a great way to learn things. Getting/completing internships should not be considered as an achievement.

It is important to choose the right internship and make the most of it. We must do internships not for the visibility but for the learning. It is about learning rather than broadcasting over Linked In. Through internships, we should become more self-aware and ensure that we do not repeat the same mistakes.

Over a 10 semester course, if we do 6 decent internships, we would be ready for the profession. The first 3 internships can be more experimental say with academic institutions or NGOs. But the last 3 internships should be focused and in the area which we have chosen to pursue. In short, we can experiment initially and then be sharply focused on the goals we have chosen for ourselves.

On research

Research is not about collecting information. It is about understanding the question, breaking it down into smaller questions and then trying to find the answers. Considerable time must be spent trying to understand the question. We must ask: what is the law? We must also ask: what should be the law?

Students should gain mastery over jurisprudence. There are many cases where there is no precedent. Instead of pulling out judgments, research must focus on putting together the building blocks of an argument. Today, information is available in electronic databases. So the skill lies in framing the right questions and analyzing the multiple layers.

On how chance favours the prepared mind

During the first 4 years of his career, Mr. Sai Deepak was restless and eager to do well. He would spend sleepless nights. But this impatience made him better prepared to seize the opportunities that came his way. As he put it, we never know when an opportunity will present itself. We should always be prepared. Moreover, we must remember that in the legal profession, we may get multiple small breaks and then a big break may come our way. We should not discount any opportunity as too small. Some landmark judgments have revolved around procedural questions. So even if the case is weak, we can torment the other side on the grounds of procedure. Procedural law is as important as substantive law.

On the preparation needed to win a case

The Bhagavad Gita philosophy helps. We can only do our best. The outcome is not in our hands. We should realize that the client’s interests are more important than our professional ego. If the two are aligned, it is the ideal situation. But we should never oversell the outcome or make an unreasonable promise to the client. While out of the box thinking can help, we must be realistic while setting customer expectations.

It is a natural tendency to overcompensate through aggressive presentations in court or unrealistic promises to clients. When we are at the start of our career, this is understandable. We may feel a little insecure and become aggressive when making our points. But over time, as our position becomes more secure, the aggression comes down.

Two heads are better than one. Solo acts usually do not pay off. We should value the strengths of our team members. This applies whether we are an arguing counsel or we are working for a law firm. Anyone saving our time is contributing to the outcome. We must value their contribution.

On the importance of writing

Writing develops clarity of thought. That is what strengthened Mr Sai Deepak’s belief in writing. He belonged to the first batch of his law school. There were many challenges. Kharagpur was 120 km away from Calcutta making travel to external events time consuming and expensive. So, taking part in moot court and other competitions was difficult. Mr Sai Deepak started to blog. He got a ready opportunity to write for Spicy IP. He covered the Bajaj TVS litigation. His work was cited in the Madras High Court (2009).

Note: Bajaj claimed that TVS's CCVTi technology infringed upon their patented Digital Twin Spark Ignition (DTS-i) technology used in their 125cc Flame engine. While there were some differences, Bajaj argued that the core concept was too similar. TVS also countersued Bajaj for making groundless threats of infringement. In 2007, Bajaj filed a suit in the Madras High Court seeking to prevent TVS from using the allegedly infringing technology. The Madras High Court granted a temporary injunction in favour of Bajaj. In 2009 (May), the injunction was revoked by the High Court on TVS's appeal. Bajaj appealed to the Supreme Court against the revocation. The dispute ended in an amicable settlement in 2019. Both companies agreed to withdraw all legal proceedings against each other, including a defamation suit filed by TVS. No compensation or penalties were exchanged.

There are multiple variables in any case. We must figure out which is the best point from the multiple points available. That is a crucial aspect of strategizing the argument.

We can only do so much to push our client’s point of view. We should prepare not just for victory but also for a negative outcome. The ability to think on our feet and judge each moment on its merit are important. Some are born with these skills, but it is possible to learn them. Understanding of human psychology is critical.

We should keep learning and ensure that we do not repeat our mistakes. We should strive for excellence. Mr Sai Deepak maintained a mistake log till recently. He would note down all the mistakes he made while writing.

It is important to learn as much as we can when we are students Once we join a job, few will have the time to help us. The focus will be on how much we are contributing rather than learning. More so in a demanding profession like litigation.

Later, Mr Sai Deepak added that students must take classes seriously. They must learn to present their case well. Only then they can become commercially successful.

Opportunities for people with experience in Tier 1 law firms

These days, law firms do look for people with litigation experience. Hiring patterns have also changed. Requirements are not just for freshers from law schools. People with research/policy bent of mind are also useful. Interesting profiles, even without corporate experience, will be considered.

Law firms vs solicitors vs litigators

Mr Sai Deepak admitted that he was ignorant about many things as a student. He was not aware of the names of the leading law firms. He and his family assumed that Khaitan and Khaitan was a fan maker and Amarchand Mangladas was a matrimonial website. But he learnt quickly over the course of six semesters.

Becoming a good litigator is like running a marathon race. It takes time to develop skills. Initially, we may try to run but the system will only allow us to walk. Later when we want to walk, the system will make us run. It is like a treadmill. The pace picks up gradually. We must be patient at the start and wait (and gear up) for the speed to pick up later.

First generation vs second/third generation lawyers

Pedigree does have an advantage. But there is the pressure of expectations. Only time will tell whether the son or daughter of a good lawyer will also turn out to be a good lawyer. There are some softer aspects in the profession: meeting and greeting people, what to say and what not to say, etc. Coming from a lawyer family can help develop these skills. If we are from a lawyer family, we can also leverage the existing network, legal office, and library. These are expensive to set up.

First generation lawyers have a bigger challenge to succeed. They must start from scratch. But if they do well, they will draw a lot of attention. They are not performing under the pressure of expectations. So, if they perform well, people will sit up and take notice.

Is there space for first generation lawyers? Mr Sai Deepak has spent most of his time in Delhi. He feels proud of being part of the Delhi bar. it is the most open bar and welcomes good people into the profession. The Delhi high court encourages young lawyers to argue. The environment is open and cosmopolitan.

On simplification of laws

Interpreting law and drafting law are two separate domains. They need different skills. Simplifying the laws is the responsibility of the legislators and bureaucrats. No practising lawyer has an incentive to simplify existing laws.

On the shortage of judges

If even 5-6% of the population approaches the courts, the legal system will crumble under the load. We need more judges. But today, there is little incentive to become a judge. The income of a judge cannot exceed that of the president of India. So, there is no incentive to be a judge and serve public interest.

On the diminishing level of morality and ethics in the profession

Ethical standards have neither gone up nor fallen. They have been recalibrated. Earlier, law was not the preferred profession for most people. Now talented, qualified people are taking up law. The setting up of the national law schools has helped. So also has liberalization. In a liberalized economy, there are more business opportunities and greater investor expectations. The ease of doing business rankings is closely tied to legal outcomes. Legal portals are tracking outcomes. There is greater pressure to behave responsibly.

Ultimately, law is part of society. So societal trends also have an impact on the profession. The first goal of people today is to make money. This is because, we have been repressed economically for a long time. After liberalization, the gates have been opened. People are trying to make the most of it. Over time, the social conscience will wake up.

On justice for the common man

Today, the legal system is overburdened with cases. For faster delivery of justice, we need to invest more in the legal system. The funding should not be from the Consolidated Fund of India.

We need more judges. We must increase the salary of judges. When a lawyer becomes a judge, there is a severe pay cut. So, layers do not want to become judges.

The supreme court should not be treated as a court of appeal. Only important legal questions should come to the supreme court. Article 136 has clogged the supreme court. Lawyers rarely get more than 30 seconds to present a case in the apex court.( Under this Article, the Supreme Court is authorised to admit appeal against any judgement in any matter passed by any court or tribunal in the territory of India (except military tribunal and court-martial).

We also need community resolution mechanisms. At the level of the local self-government, we should promote alternative dispute resolution mechanisms. People from the villages and districts should not find the need to come to the court.

The legal system must be more responsive to three segments:

• High end commercial disputes
• Constitutional matters
• The common man

None of the segments are being catered to effectively today. Only some improvements have happened in the settlement of commercial disputes.

Less busy courts do much better. Recently, the Himachal Pradesh high court settled a pharma IP case in 3-4 days. It would have taken 3-4 months in Delhi.

Legal and business strategy

Legal strategy must be viewed as an integral part of business strategy. Companies must not look at legal strategy as defensive in nature. They must make the necessary investments. Even in the case of startups, the launch strategy may include a legal component. Business leaders must have a good awareness of legal matters. At the same time, lawyers should understand business models and the commercial realities. In commercial litigation, the commercial outcomes are more important than fighting for principles. Lawyers must appreciate the business sensitivities involved in the case.

On selecting the right case

Lawyers do not represent the truth nor are they interested in the truth. The purpose of commercial litigation is not to find the truth. A public interest litigator may go after the truth. But a commercial lawyer is driven by monetary incentives. Whether it is the truth or not, it is up to the court to establish.

The lawyer’s job is to make the arguments within the framework of the law. Each party thinks they represent the truth. A litigator is looking at whether something is legal or illegal. Sometimes the truth may coincide with legality but not always. The litigator must pitch the case within the provisions of the law and present the best version of the story.

The definition of truth would be different in different contexts: commercial/criminal and constitutional.

A case is judged on legal merit. A lawyer before taking up the case must examine whether the case is tenable in a court of law. if the case is too weak, it is best to close it outside the court. The lawyer must advise the client to cut losses and settle out of court. Clients will be grateful for not leading them on a wild goose chase.

Contingent fee

Contingent fee-based arrangements are not allowed in India. In countries like the US and the UK, lawyers are expensive. They have the concept of fees linked to outcomes. Once Mr Sai Deepak approached a German law firm on behalf of an Indian client. It took 6-7 months to work out an outcome-based agreement. Yet it involved a heavy upfront deposit. In India fees are much lower. There is a clear fee schedule. It is not hourly rates.

On changes to the ecosystem

Our judges need better research support. Even in the Delhi high court, the support staff is not adequate. The supreme court recently set up a separate research office.

We need more judges. As already mentioned, the pay of the judges needs to be increased. Clients suffer when judges are changed, and benches reconstituted.

On a famous case he handled: Tata Sons vs Greenpeace

Tata Sons and Greenpeace clashed in a legal battle related to trademark and freedom of speech. Greenpeace had launched a video game called "Turtle vs Tata" to protest the environmental impact of a port construction project by Tata Steel (a subsidiary of Tata Sons). The game featured the Tata logo as the antagonist the turtles had to defeat.

Tata Sons sued Greenpeace for trademark infringement, arguing that the game's use of the Tata logo tarnished their brand image. Greenpeace argued that the use of the logo was a parody and protected under freedom of speech. They claimed it was a creative way to criticize Tata's environmental practices, not for commercial gain.

Tata sons was represented by Mr Rohinton Nariman, an aggressive lawyer with encyclopaedic knowledge. Greenpeace was represented by Mr Saikrishna and Mr Sai Deepak. Mr Sai Deepak honed his trial skills during this case.

The Delhi High Court sided with Greenpeace in 2011. The court acknowledged the potential for trademark dilution but found that Greenpeace's use did not mislead consumers. This case set a precedent for fair use of trademarks for parody and criticism in India.

A very insightful session by Mr. Sai Deepak. Great moderation by Dr R Prasad and Prof Sudhakar Rao. Very probing questions from the participants.