10 common legal myths busted - Full Story - The Economic Times

10 common legal myths busted - Full Story - The Economic Times:

Did you check your friend's repayment history when you agreed to be a guarantor for his home loan? You should have, because according to a Supreme Court ruling, the lender can recover his dues from the guarantor if the borrower is unable to repay the loan. Your friend's liabilities could become yours if he defaults. Yet, very few people know this or check it when they blindly sign up as guarantors for loans taken by friends and relatives.

There are several such misconceptions that are harboured by the smartest of us. In our cover story this week, we have picked 10 such misconstrued notions about the legal position on financial matters and clear the air on what is correct under the law. This is important because if you believe in something that is not legally tenable, it could have an adverse impact on your finances. Of course, ignorance about the law should never be an excuse for making a mistake.

1) I need to submit the originals in court

Certified photocopies are perfectly fine and acceptable.

Don't submit the original documents when you file a plea in court because you could easily lose them. As per the Civil Procedure Code, 1908, when you file a petition in court, it needs to be accompanied with affidavits and certified copies of the original documents that you want to present as evidence. "It would be a mistake to submit the originals along with the complaint as you run the risk of losing them.

Besides, they are not required as per the procedure," says Aakanksha Joshi, senior associate, Economic Law Practices. However, you will be required to present the originals at the time of hearing. At that time, too, you can present photocopies if it is not possible to produce the originals. However, these photocopies will have to be certified and attested by a gazetted officer to ensure the stamp of authenticity.

In fact, you should not give the original documents to anyone, including your lawyer, in some instances. Make sure he is efficient in handling the paperwork if you are entrusting key documents to him. As an alternative, you could hand over the certified copy for his reference and retain the original. Take the orginal to court only at the time of hearing.

As a safety measure, always keep two sets of certified photocopies, in case you misplace the original. A good idea is to scan the documents and store them on your computer or on the cloud. You can use online services like Google Docs (Docs. google.com) and Windows Live Sky-Drive (Explore.live.com/skydrive) to store your documents.

2) I can file a case anytime I want

The civil cases not filed within a deadline are time-barred.

While everyone is entitled to their day in court, you cannot knock on the doors whenever you want. The civil cases come under the ambit of the Limitation Act, 1963, which has laid down a time frame within which one must file the case. This can range from three months to three years, depending on the case that is filed. If you don't file the case within the given deadline, it becomes 'time-barred' and the court does not admit the plea. Defence lawyers often ask the courts to dismiss cases that have been filed after the deadline.

The Limitation Act, however, lists out circumstances under which the court can accept your case beyond the time limit. If the person filing the case is not in a position to file the case himself (if he is a minor or mentally challenged) and does not have anyone to represent him, the time period could be extended. For example, if a case has to be filed within one year, but the plaintiff is 16 years old and does not have a guardian, the limitation period would begin from the time he completes 18 years.

If the case is dismissed on a mere technicality, it can be painful, especially in suits related to recovery of money. So, ask your lawyer about the time period within which the case must be filed. If you miss the deadline due to your lawyer's oversight or any other glitch, you will have no recourse in court.

3) I can gift ancestral property as I like

It is owned by the entire family, not an individual.

While you are entitled to tax benefits if you set up a Hindu Undivided Family (HUF), there is a restriction on the transfer of property. You cannot gift ancestral property that is jointly held by the HUF unless you are a sole surviving member, according to a recent ruling by the Bombay High Court. The ruling came in a case filed by the sons of one Mallappa Isapure, who had two wives. He divided the ancestral property between the sons of his two wives.

However, the second wife, Chandrabai, claimed that a portion of the property that was in possession of the sons of the first wife was, in fact, gifted to her by her husband. The sons of the first wife said that the property could not be gifted as it was a joint family property. While the appellate court dismissed the plea, the trial court upheld it, and was later also maintained by the high court, which stated that ancestral property could not be gifted. The property was duly partitioned and the respondents were asked to pay the cost.

In HUFs, the property is jointly held by the family. Therefore, no individual member has an absolute right over it. Hence, he cannot gift it to a third person, unless he is the sole surviving member of the HUF. "This ruling has significance for HUFs, while the other religions do not recognise the concept of joint property," says Suresh Surana, founder, RSM Astute Consulting.

4) Letter of authority is enough for delegation

It works for routine tasks, not for complex deals.

While you may be astute at taking care of your financial matters, there are times when you must delegate authority to someone else. The two commonly used documents to do so are the letter of authority and the power of attorney.

A letter of authority is a simple document, which works for routine, everyday tasks like collecting a cheque book from the bank branch or submitting documents on your behalf. However, this is not a registered document and will not be accepted for more complex transactions such as the sale of property or any other asset.

For such deals, you need a power of attorney to delegate authority since the transaction is bigger. A power of attorney is a more detailed document and lays down the manner in which the transaction is to be conducted.

5) Out-of-court settlement can't be challenged

You can go to court in case of fraud or coercion by the other party.

Out-of-court settlements help avoid the hassles of filing a court case. They are seen as a quick, cost-efficient and amicable way of settling disputes as opposing parties can work out a deal that is mutually acceptable to both. But what if you sign the deal based on certain assumptions only to discover later that some facts were deliberately hidden from you? Thankfully, an out-of-court settlement is not the end of the road.

"You can always approach the court in the case of fraud or coercion," says Neerav Mainkar, founder of law firm, M Neerav & Associates. The court will review the circumstances under which the agreement was signed, and revoke it if fraud or coercion is proved.

In the case of arbitration, too, you can appeal against the award on the grounds that the arbitration agreement was invalid or you were not given sufficient notice of the appointment of arbitrators and, hence, could not represent yourself. Apart from this, if a matter is not envisaged to be settled by arbitration as per the arbitration clause, you can appeal for it to be set aside under Section 34 of the Arbitration and Conciliation Act.

6) I'm not supposed to repay the loan if I'm a guarantor

If the borrower defaults, the lender can ask the guarantor to repay the loan.

When a friend or relative asks you to stand guarantee for his loan, don't treat it as a simple formality. The Supreme Court has ruled that the responsibilities and liabilities of a guarantor are no different from that of the borrower. In this particular case in the apex court, Ganga Kishun had acted as guarantor for a loan taken by his friend, Ganga Prasad, who died before the loan was fully repaid. When the bank tried to recover the loan by selling Kishun's land, he challenged the move in court. However, after a lengthy legal battle, which reached the Supreme Court, it was held that the bank had the right to recover the dues from the guarantor if the borrower had failed to pay.

Apart from repaying a loan that someone else has taken, the proceedings can negatively impact your loan eligibility. If the borrower defaults, the banks would turn to you for its dues. If you are unable to pay, your credit score will be impacted. Worse, banks consider the loans for which you are acting as guarantor to assess your repayment capacity before issuing you a fresh loan. Hence, ideally you should act as guarantor for loans with shorter tenures so that your responsibility ends sooner. If you are not confident about the debtor's capacity to repay, avoid becoming a guarantor.

7) My heir will inherit my shares

The shares in a demat account will go to nominee.

A will does not always ensure that the beneficiaries will get their dues, especially if the person has made nominations. When it comes to shares in a demat account, it is the nominee in the account who inherits them, not the person named in the will, as per a Bombay High Court ruling. The case dates back to 2008, when Harsha Kokate filed a petition in the court, seeking permission to sell her deceased husband's shares, for which her nephew was the nominee.

Her husband, Nitin Kokate, who died in July 2007, had made his nephew the nominee in July 2006 for the shares held in his demat account. The court held that the wife had no right over the shares as the provisions of the Companies Act mandated that the nominee of the demat account inherit the securities.

This is a significant ruling, wherein the provisions of the Companies Act override the legality of a will. As per Section 109A of the Companies Act, the nominee legally inherits the shares after the death of the original shareholder, even if the latter has named someone else in the will. Experts suggest that you name the nominee in the will as well so as to avoid confusion.

8) I don't need to inform the insurer when I buy a used vehicle

Claims for damage or theft will not be honoured if the insurance is not in the buyer's name.

Buying a used vehicle? While you take utmost care to check its condition, it is also important to get the paperwork right. Besides the vehicle's registration certificate and road tax receipt, you also need to get the insurance transferred in your name. If you don't do so, the insurance company is not liable to reimburse a claim, according to a ruling by the National Consumer Disputes Redressal Commission.

Ashok Kumar purchased a used car in 2006. The car was insured by the New India Assurance, but Kumar did not inform the company about the transfer of ownership and registration. When the car was stolen in 2007, Kumar filed a claim, which was rejected on the ground that the policy was not in his name. The Delhi District Commission and the State Commission ruled in favour of Kumar.

However, the National Commission ruled in favour of the insurance company, stating that according to Irda regulations, it is mandatory to inform the insurance company about the transfer of vehicle within 14 days of purchase, failing which the company is not liable to reimburse a claim.

The silver lining is that only third-party claims will be admissible under Section 157 of the Motor Vehicles Act, which states that the certificate of insurance 'shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred'.

9) I can't move a consumer court without a lawyer

Even non-advocates can argue a case in these quasi-judicial bodies.

The costs and hassles involved in hiring a lawyer keeps many consumers from moving the court against companies. However, the Supreme Court has ruled that one doesn't need an advocate to move a consumer court. In 2000, hearing a complaint against two tour operators, the south Mumbai District Consumer Forum upheld the respondents' demand that only lawyers should be allowed to represent the consumers. This order was challenged in the Bombay High Court, which quashed it, saying that litigants before consumer forums 'cannot be compelled to engage advocates' as these were quasi-judicial bodies.

However, the Bar Council of India appealed against the 2002 judgement, which had granted permission to authorised agents to represent customers in consumer courts. The Supreme Court upheld the high court judgement and suggested a mechanism wherein non-lawyers could be accredited to appear before the consumer forums as representatives on a regular basis.

"This is a welcome move as it will simplify procedures and promote easy access for members of the public to consumer forums," says Joshi of Economic Law Practices.

The ruling takes into account the fact that the tiny sums granted as compensation in consumer disputes do not make it economically viable for appellants to engage a lawyer. The court also held that the decision was consistent with the Advocates Act, as agents don't practice.

10) An online will is sufficient to pass on property to heirs

Indian law does not recognise online wills. It must be signed and attested.

Several Web portals and companies now allow you to make an online will. Just register on the website and you will be given step-by-step guidance. All you need to do is answer the questions and the software automatically drafts the will for you. An online will would cost around Rs 10,000. Many foreign websites, such as the UK-based Q-Will and US-based Legacywriter. com, also offer various templates from which you can choose the one that fulfills your requirements, while other firms offer onesize-fits-all solutions.

Once you fill in the details of the assets and beneficiaries, the service provider will e-mail a draft of your will. However, your task does not end here. You have to get a physical copy of the will as India does not recognise the concept of an online will or digital signature. So, you need to take out a print of the online will and sign it in the presence of two witnesses.

The will must be attested by these two witnesses, without which the document would be deemed invalid. Though not mandatory, you can get the will registered as well. The Indian law is very clear on this. Online portals merely help you draft the will; signing it and getting it attested is your responsibility.

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Law companies now joining in pro-bono activities, legal eagles offering free services to needy - Economic Times

In popular perception, a lawyer is often painted as a villain: someone who gives you confusing advice and then overcharges for it. But that image needs to change. Pro bono work - offering legal services to the poor and indigent at nil or token recompense - is turning popular among top lawyers in India. That the best-known lawyers take time out for such work from their busy schedules is commendable, especially since there is no legal obligation on them, unlike in New York, where you cannot qualify as a lawyer unless you put in 50 hours of pro bono work.

The Bar Council of India rules make pro bono work only a moral obligation, which can easily be evaded if a lawyer is busy. Pro bono work is done by lawyers in their individual capacity. Harish Salve, for example, will take up any brief for free if he is convinced about the case or the client's innocence, says a lawyer on the condition of anonymity.

Fali Nariman did two cases - which chipped away at the Executive's role and gave the Judiciary a superior say in judges' appointment - pro bono, as did former high court judge Mukul Mudgal in the Sunil Batra case on the rights of prisoners. Sometimes, these luminaries choose to defend the indefensible. As senior counsel Raju Ramachandran did, when he represented Pakistani terrorist Ajmal Kasab against Maharashtra.

Maverick lawyer Ram Jethmalani also courts unpopular causes shunned by others, for free. He defended Delhi University lecturer SAR Geelani in the Parliament attack case. Thanks to Jethmalani, the Delhi High Court and Supreme Court acquitted Geelani, overturning the death sentence awarded by a trial court.

Jethmalani also fought for Dr Binayak Sen, the doctor-turned activist, who was accused of sedition for being sympathetic to Naxals, and got him bail. For Chandubhai Mehta, the managing partner of Mumbai-based Dhruve Liladhar & Co, the plight of two Muslim widows was an eye-opener.

Law Firms Now Joining in

The two Muslim widows, aged 28 and 32, approached Mehta along with their minor children when they lost their husbands in the Century Bazaar blast in Mumbai in 1993. The widows had been abandoned by their wealthy in-laws. Mehta took up their case pro bono, and won. In fact, the third-generation lawyer was so moved by their plight that he still doesn't charge any widow who comes knocking at his plush Nariman Point office. He later fought to clean up the clogged Mithi river, which flooded Mumbai during the 2005 deluge.

Senior counsel Anil Diwan did the Jain Hawala case for free while Soli Sorabjee did the Bommai case on President's Rule pro bono.

Rajya Sabha MP and senior BJP leader Arun Jaitley has represented quite a few colleagues for free, even though some would have bitterly sparred with him inside Parliament. As a matter of convention, senior counsels don't charge any fee for assisting the courts. Law firms have now belatedly woken up to the windfall goodwill gains to be had from such work.

AZB & Partners, a leading law firm that advises corporates on big-ticket M&As, works closely with the poverty alleviation projects of Grameen Foundation, Dell Foundation, Acumen Fund and the IFMR Trust.

"We do not quantify the time or the monetary value of pro bono work done at AZB," says co-founder Zia Mody. "But full credit is given to associates for this, and it is counted towards their billable hours." And Cyril Shroff, managing partner of country's biggest law firm Amarchand Mangaldas & Suresh A Shroff & Co, feels strongly that his firm's "privileged position" must be used for greater good. "The firm is involved in several non-paying assignments, including policy advocacy," he adds.

Senior partner Vandana Shroff mentors young artists by displaying early works and teaching them the art of negotiating the commercial world. Khaitan and Co, a firm with 400-odd employees, which has represented leading industrial groups such as the Birlas, the Singhanias and the Modis, helps Saaf India, a social enterprise tackling the issue of waste generated on Indian trains.

"We don't look at getting mileage out of such activities. It's about giving back to society. There is a sense of satisfaction that cannot be explained," says senior partner Rabindra Jhunjhunwalaa.

Khaitan helped Naveen Jindal fight for the right of every Indian citizen to hoist the national tricolour. Some blue-blooded law firms have helped the government wrest a good bargain in complex bilateral or multilateral treaty negotiations.

"We (have) advised the government in a number of WTO disputes, assisted several ministries in drafting, (helped) review policies and law, and represented individuals and groups in court," says Rajiv Luthra, founder of Luthra & Luthra Law Office. "We have also provided advice and assistance to many not-for-profit and charitable organisations on different aspects of law, including setting up a presence in India."

Delhi-based Luthra & Luthra is currently advising the Lotus Flower Trust, a UK-based charity dedicated to helping remote rural communities in India. The law firm has also filed the PIL on tiger conservation in the Supreme Court.

Pro-bono activities got a fillip in India recently with the launch of i-Probono, a platform connecting NGOs seeking legal assistance with lawyers, students and academics willing to use their skills for public good.

"We matched over 70 projects for Indian civil society organisations with lawyers last year," says Swathi Sukumar, India country director, i-Probono.

"Such activities are increasing, but people should feel the need to do it from within as it can't be imposed on anyone," says Janak Dwarkadas who fought several PILs related to environment in the Bombay HC.

Senior counsel Raju Ramachandran shot down the suggestion to make pro bono work a career norm at the threshold as impractical, saying it would discourage lawyers from taking it up at a later stage. "In any case, a young lawyer spends the first few years learning skills. He can't argue a very complicated case. Instead, the Judiciary should examine the pro bono records of experienced lawyers while designating them as senior lawyers or elevating them as judges," he says.

Source: Law companies now joining in pro-bono activities, legal eagles offering free services to needy - Economic Times:
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The Real Estate (Regulation and Development) Bill-2013 - A Giant Step in Real Estate Sector

The real estate sector in India has been largely disorganised and for a long time a need has been felt to regulate and organise the sector. The last few years have seen tremendous growth in the sector and prices of properties have gone up accordingly. There has been a spurt in foreign investment as well. To address the emerging need, Government has been trying for several years to introduce a Real Estate Bill. Hence, A Bill providing for setting up a regulator for the real estate sector and having provisions like a jail term of up to three years for developers who make offences like putting up misleading advertisements about projects repeatedly was presented in the Rajya Sabha in the current session of the Parliament.


The Real Estate (Regulation and Development) Bill, approved by the cabinet, seeks to provide a uniform regulatory environment to the sector. It also intends to make it mandatory for developers to launch projects only after acquiring all statutory clearances from relevant authorities.


The Bill makes it mandatory for builders to clarify the carpet area of the flat. This would be made uniform for the entire country. This rule would make the concept of super area - which is often used to mislead owners - virtually non-existent. The Bill has provisions under which all relevant clearances for real estate projects would have to be submitted to the regulator and also displayed on a website before starting the construction, sources said. The proposed legislation has tough provisions to deter builders from putting out misleading advertisements related to the projects carrying photographs of the actual site. Failure to do so for the first time would attract penalty which may be up to 10 per cent of the project cost and a repeat offence could land the developer in jail.
The Ministry of Housing and Urban Poverty Alleviation is working on bringing all projects under a single-window clearance. While the Airports Authority of India and municipal bodies have come on board, there are some objections from the Environment Ministry which are being looked into.


As per government sources, nearly 22 states had given their approval to the Bill while five states wanted certain amendments. These changes have been incorporated in the Bill presented in the Rajya Sabha. Chhattisgarh is the sole state to still oppose the Bill.
While the Regulator in the states will be appointed by the state governments, in Delhi the Urban Development Ministry will appoint the regulator. DDA is likely to be made the regulator in Delhi, sources said. The Regulator will also be the appellate authority in cases of dispute. This will save the owners the hassle of running around to different authorities for redressal.
The latest draft of the Real Estate (Regulation and Development) Bill, 2013 (the Bill) was approved by the Union Cabinet on June 4, 2013. (Real Estate Bills have been formulated by Maharashtra and Haryana State Governments. When enacted, the Central Act would prevail over any State legislation and any provisions repugnant to the Central Act would be void.) The Bill proposes to establish a regulatory oversight mechanism to enforce disclosure, fair practice and accountability norms in housing transactions and to provide dedicated adjudication machinery for speedy dispute resolution in the real estate housing sector.

Salient features of the Bill and the problems it seeks to resolve are as follows:

Residential projects – The Bill aims to promote transparency in the real estate sector and to establish mandatory governance standards pertaining to all private residential projects of more than 4,000 square meters. There is no prescribed limit on the number of dwelling units. The Bill only seeks to cover large residential projects; commercial projects are not covered.
Regulators – A two-tier dispute resolution mechanism is proposed comprising a Real Estate Regulatory Authority (the Authority) and adjudicating officers at state-level and a central Real Estate Appellate Tribunal to adjudicate upon matters relating to residential projects covered under the Act. Currently real estate transactions are largely governed by the agreements between the parties, which are considered generic contracts relating to immoveable properties with remedies including specific relief (if applicable) and damages for breach available under civil and criminal law. Pursuant to enactment of the proposed legislation, civil courts shall not have jurisdiction in respect of any matter covered under the Act.
Advisory council – A Central Advisory Council is proposed to advise the Central Government on implementation of the Act, with a mandate to make recommendations on major questions of policy, to protect consumer interests and to foster growth and development of the real estate sector. The proposed Council will possibly take over the role of The National Real Estate Development Council, which was set up in 1998 by the Housing Ministry as an autonomous self-regulatory body to assure transparency and ethics in the real estate business, and seeks to formulate real estate policies through advisory and consultative processes with both Industry and Government.
Mandatory registration – The Bill proposes registration of developers, their projects and their real estate agents with the Authority to accredit and monitor projects.
Project launch after approvals – The Bill contemplates launch of new projects only after all approvals are in place. Accordingly, development, conversion or commencement of construction of immoveable property would be permissible only after obtaining requisite approvals and registration with the Authority.
Mandatory disclosures – Developers would be required to upload information and documents on the Authority’s website relating to land title, encumbrances over land, number and carpet area of units, layout plan, proposed facilities, proposed completion date, etc. These provisions have been introduced to ensure that customers are able to procure complete information and there is no ambiguity with respect to the status of approvals and stage of construction of the project. This will also substantially reduce disputes between the parties that largely arise due to lack of transparency. Presently consumers are unable to procure complete information or hold developers to account in the absence of effective regulation.
Agreements – Developers would also be required to provide to the Authority proposed advertisements relating to the project, formats of the agreements to be executed with buyers and lists of bookings in the project on the basis of the agreements with proposed buyers. This will further protect the interest of the buyer and avoid hardship due to one-sided agreements.
Carpet area – The Bill provides for developers to clearly specify the carpet area for each unit. As per current practices, developers usually mention “super built-up area” of a unit, which can be very misleading, as the super built-up area may be 25-40 per cent more than the carpet area.
No pre-launch bookings – The practice adopted by developers to commence sale of units in pre-launch booking before obtaining mandatory approvals for the project and at times even before acquisition of the land is to be curbed. Issuance of advertisements or booking of units in a project would be permissible only pursuant to registration of the project.
Use of funds – The Bill proposes acceptance of an advance/deposit for the proposed sale of a unit in a project by developers only pursuant to execution of a written agreement with the buyers. Further, 70 per cent or a lower percentage (as prescribed by the Authority) of the funds received are to be deposited in a separate bank account to be used only for the relevant project. This provision was introduced to the Bill to ensure that funds collected for a particular project are not diverted for other purposes.
Adherence to approved plans – Developers under the proposed Bill must adhere to approved plans and project specifications and are liable to rectify, at their own cost, any major structural defect or deficiency in the unit or services incidental thereto for one year from the date of handing over possession. If developers fail to rectify such defects within a reasonable time, they shall be liable to pay appropriate damages or compensation to the buyers as may be determined by the Authority.

Transparency – Developers would be required to make available information and documents to proposed buyers to ensure transparency in development of the proposed project such as approvals, site plans, structural designs, specifications, construction schedule, etc.
Delayed possession – The Bill provides that if the developer is unable to complete construction to give possession of the flat to the buyer, the developer would be liable to refund the deposit received along with interest at the rate prescribed by the Authority. Correspondingly, the buyer must make payments in a timely manner and would be liable to pay prescribed interest in case of delayed payment. These provisions in the Bill have been introduced to ensure timely delivery of possession/completion of the project. The Bill also strives to strike a balance by ensuring that the buyer makes timely payment to the developer.
Revocation of registration – In case of wilful default of the provisions of the proposed Act, or unfair practice by a developer, including false representation of the quality of services or status of approvals, the Authority may revoke registration of the developer.
Punishment – The provisions for punishment in case of contravention and/or non-compliance with the provisions of the proposed Act currently include imprisonment for a term of up to three years, or a penalty of up to 10 per cent of the estimated cost of the real estate project, or both.
Few practical problems in implementation of the Bill include the setting up of regulatory authorities at national and state levels, which is likely to be a long-term process. Developers may structure their projects so that each phase is less than 4,000 square metres to escape the reach of the proposed Bill; as each phase developed separately would be considered as a stand-alone project. Furthermore, the provision in the Bill for opening a separate bank account for funds collected for a project may not serve its purpose as State Governments may allow developers to maintain even less than 70 per cent of the funds collected for the project, thereby allowing for utilisation of funds for some other purpose.
Even otherwise the Bill has only been approved by the Union Cabinet, and has to be approved by the Parliamentary Standing Committee, passed by both houses of the Indian parliament, and then submitted for approval of the president pursuant to which it can be enacted as legislation. There are likely to be many more discussions and changes to the Bill following the recommendations of the Standing Committee and debate in the parliament.

The impact of the proposed regulatory Bill can be only assessed over time as to whether it is able to effectively address the issues facing the housing sector including standardization of sale agreements, efficacy in resolution of complaints and encouragement of private equity through effective regulations. This would also depend on the extent to which the major players are able to find loopholes, the Government’s resolve to plug them and its commitment to regulate growth of the real estate housing sector.

Source:The Real Estate (Regulation and Development) Bill-2013- A Giant Step in Real Estate Sector

By Anurag Tiwari, Advocate 

OpEdNews - Article: Is There a Job for Lawyers as Healers of Conflict?

OpEdNews - Article: Is There a Job for Lawyers as Healers of Conflict?:

By Sylvia Clute

In 1984, ten years after I began my practice as a trial attorney, U. S. Supreme Court Chief Justice Warren Berger told the American Bar Association:

The entire legal profession - lawyers, judges, law teachers - have become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we out to be healers - healers of conflicts. Doctors, in spite of astronomical medical costs, still retain a high degree of public confidence because they are perceived as healers. Should lawyers not be healers? Healers, not warriors? Healers, not procurers? Healers, not hired guns?

Beware of what you ask for. To heal conflict is a radically different process from what lawyers are trained to do or why their technical skills are needed.

Ten years before Justice Berger's call for lawyers to be healers, the Victim Offender Mediation (VOM) concept was born in Ontario , Canada , planting the first seeds of the legal reform he was calling for. VOM began as a joint program of the Waterloo Region probation department's volunteer program and Mennonite Central Committee Canada when two young men caused a total of $2,200 damage to 22 victims in a night of drunken vandalism. Both pleaded guilty to all 22 charges, then something radically different happened.

"The judge agreed that the two young men, along with their probation officer and the volunteer coordinator from MCC who had come up with this idea, would meet face to face with the victims to work out restitution agreements. The originators today agree that the approach used was very simplistic. They had the boys walk up to the door of the victims and knock, telling them who they were and why they were there. They talked to all but two victims who had moved. Restitution was established and within months repayment had been made." (Victim Offender Conferencing, 21.) The case was resolved without requiring lawyers to interpret the process for those involved in it.

The same type of victim-offender program was introduced in 1978 in Elkhart , Indiana , after a probation officer visited the Ottawa program. While it first began in the probation department, it was soon moved to a nonprofit community organization.

The 1980s seems to have been at time ripe for new ideas about justice. That was when, without knowing about the VOM experience, I realized that justice as I knew it and practiced it in the courtroom represented but one model of justice. It was the punitive model that has its roots in our separation and fear of one another. It was the one Berger pointed out has us so mesmerized.

The non-punitive model justice is grounded in our connectedness and love (agape) for one another. My first encounter with other attorneys who were having similar realizations was at an early conference of the International Alliance of Holistic Attorneys in the 1990s. That was where I met Alan Reid, an attorney from Ottawa , Canada who had written a book called Seeing Law Differently: Views from a Spiritual Path (1992).

Drawing upon the teachings of A Course in Miracles, Reid suggested that forgiveness offered an opportunity for healing in every context, be it the family, the environment, business or the constitution. He had the courage to suggest that those in the legal system could give up the judgment that stands in the way of healing. That book was my introduction to the notion that justice could be more reflective of our spiritual inclinations. It felt like a call to join a revolution!

Next, I came upon a book that had come out two years earlier, Howard Zehr's Changing Lenses: A New Focus on Crime and Justice (1990). Zehr is not an attorney, but his early work was closely tied to the criminal courts. Zehr is sometimes called the grandfather of restorative justice, a worldwide movement that now extends well beyond the court system and addresses conflict in all kinds of situations. It is also effective in preventing conflict before it manifests as violence.

Here is the dilemma for lawyers. The model of justice that stems from love and seeks healing is simple, not complex. It requires no legal degree to become a "facilitator" of the process. Dominic Barter, an accomplished practitioner of this new model of justice who also has no law degree, says that it is more like a trade than a profession. Good training consists of an apprenticeship under an experienced facilitator and the willingness to be totally open to possibility, without preconceived limitations.

Is there a job for lawyers when resolving conflict means healing the pain that the harm has caused? You be the judge.



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How to Spot a Liar — HBS Working Knowledge

How to Spot a Liar — HBS Working Knowledge: 

Some excerpts from the article :

KEY FINDINGS: WORD COUNT, PROFANITY, AND PRONOUNS

In terms of strategic cues, the researchers discovered the following:

Bald-faced liars tended to use many more words during the ultimatum game than did truth tellers, presumably in an attempt to win over suspicious receivers. Van Swol dubbed this "the Pinocchio effect." "Just like Pinocchio's nose, the number of words grew along with the lie," she says. 

Allocators who engaged in deception by omission, on the other hand, used fewer words and shorter sentences than truth tellers. 

Among the findings related to nonstrategic cues:

On average, liars used more swear words than did truth tellers—especially in cases where the recipients voiced suspicion about the true amount of the endowment. "We think this may be due to the fact that it takes a lot of cognitive energy to lie," Van Swol says. "Using so much of your brain to lie may make it hard to monitor yourself in other areas." 

Liars used far more third-person pronouns than truth tellers or omitters. "This is a way of distancing themselves from and avoiding ownership of the lie," Van Swol explains. 

Liars spoke in more complex sentences than either omitters or truth tellers. 

The researchers also examined when and whether the receivers trusted the allocators—noting instances when receivers voiced doubts about the allocators' statements, and correlating the various linguistic cues with the accuracy of the receivers' suspicions. They also noted instances in which receivers showed no suspicion toward deceivers.

On average, receivers tended to trust the bald-faced liars far more than they trusted the allocators who tried to deceive by omission. In short, relative silence garnered more suspicion than flat-out falsehoods. "It turns out that omission may be a terrible deception strategy," Van Swol says. "In terms of succeeding at the deception, it was more effective to outright lie. It's a more Machiavellian strategy, but it's more successful."

POSSIBLE APPLICATIONS

In the latest phase of their research, the team is investigating the linguistic differences between lying in person and lying via email. Results regarding the latter may be increasingly useful as a larger portion of business is now being conducted via email, and such communications leave a transcript that can be analyzed carefully—and at leisure—by suspicious counterparts. "People detect lies better over the computer than they do face-to-face," Van Swol says.

That said, the researchers are quick to emphasize that linguistic cues are most definitely not a foolproof method of detecting lies, even among those who are trained to look out for them.

"This is early stage research," Malhotra says. "As with any such work, it would be a mistake to take the findings as gospel and apply them too strictly. Rather, the factors we find to be associated with lies and deception are perhaps most useful as warning signs that should simply prompt greater vigilance and further investigation regarding the veracity of the people with whom we are dealing."

—To learn more about how to deal with liars during business negotiations, read Negotiation Genius: How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond by Deepak Malhotra and Max H. Bazerman.

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Lesson in Socialism - Insightful reading.

An economics professor at a local University made a statement that he had never failed a single student before, but had recently failed an entire class. That class had insisted that socialism worked and thatno one would be poor and no one would be rich, a great equalizer.

The professor then said, "OK, we will have an experiment in this class on the socialism principles".. All grades will be averaged and everyone will receive the same grade so no one will fail and no one will receive an A.... (substituting grades for Ranks - something closer to home and more readily understood by all).

After the first test, the grades were averaged and everyone got a B. The students who studied hard were upset and the students who studied little were HAPPY.  

As the second test rolled around, the students whostudied little had studied even less and the ones who studied hard decided they wanted a free ride too so they studied little.

The second test average was a D! No one was happy. When the 3rd test rolled around, the average was an F.As the tests proceeded, the scores never increased as bickering, blame and name-calling all resulted in hard feelings and no one would study for the benefit of anyone else.

To their great surprise, ALL FAILED and the professor told them that socialism would also ultimately fail because when the reward is great, the effort to succeed is great, but when government takes all thereward away, no one will try or want to succeed.

Could not be any simpler than that. Remember, there IS a test coming up.

The 2014 elections.

These are possibly the 5 best sentences you'll ever read and all applicable to this experiment:

1. You cannot legislate the poor into prosperity by legislating the wealthy out of prosperity.

2. What one person receives without working for, another person must work for without receiving.

3. The government cannot give to anybody anything that the government does not first take from somebody else.

4. You cannot multiply wealth by dividing it!

5. When half of the people get the idea that they do not have to work because the other half is going to take care of them, and when the other half gets the idea that it does no good to work because somebodyelse is going to get what they work for, that is the beginning of the end of any nation.

Can you think of a reason for not remembering this Lesson ? Neither could I.

How shell companies turn black money into white and vice versa ???

How shell companies turn black money of India Inc, politicians into white and vice versa - The Economic Times:



A manual that the Gujarat income tax department prepared for its officers, and which devoted an entire chapter to such companies, summarised the tried-and-tested way of doing so: "The method...entails breaking up large amounts of money into smaller, less suspicious amounts. In India, this smaller amount has to be below Rs 50,000 as deposit of cash below this amount does not require providing PAN of the depositors. The money is then deposited into one or more bank accounts either by multiple people or by a single person over an extended period of time. Also, even larger amounts are deposited in the banks with PAN numbers of individuals who are mostly illiterate and work for these...operators for small salary or commission. The money is then routed through paper companies controlled by these operators."


These paper companies then invest this money into the target company as share capital. Money laundered. And while this last step seems a tad labour-intensive, even this process can be speeded up and costs cut, if bank officers are amenable enough (a recent investigation by Cobrapost revealed the role banks had to play in money laundering). And it is the operators who will carry out this last step for their customers. This, in a nutshell, is how the process works. At the start and end of the process are 'customers' who have opposing aims. Between them sits the operator who brings the two together.

On February 14, 2008, Seventeen companies, many of them belonging to wellknown industrial groups, injected a total of Rs 121.24 crore into Jagathi Publications, the flagship media company owned by Jagan Mohan Reddy, son of former Andhra Pradesh chief minister YSR Reddy. Ultimately, according to news reports, the CBI would go on to investigate a total of over Rs 1,100 crore worth of investments into Jagathi over a period of years.




At the heart of this business, and what ensured its survival and growth, is the reality that the Indian economy has a kind of dual personality, split as it is, into the 'white' and the 'black' economy, with cash transactions (though not always of an illicit nature) dominating the latter. But these economies don't exist separately from each other. They drive each other, and feed off each other, and money flows from one into the other, depending on the economic cycle and entrepreneurs' 'animal spirits'.



The Kolkata company, and thousands of others like it across the country, sit squarely at the junction between white and black. They perform what is an essential function — that of converting, or laundering, black money to white. But they do the reverse as well, converting white money to black. And in the same way that a stockbroker brings together buyers and sellers of a share, and 'makes' markets, such companies, and the people who operate them, bring together buyers and sellers of another, much sought-after commodity.

It's worth noting that all of these are transactions that occur only on paper, with no real cash flow or assets backing them.



But what the operator has done is infuse capital, on paper, into a set of companies that are now ready and waiting for a new set of owners. Such companies will be sold off to anyone looking to launder black money, converting cash they have into an asset that has documentation backing it, and can be audited by anyone who cares to look.

A buyer starts off by buying the shares of such a company at a steep discount to the 'paper' value of the company. He pays, say, one rupee for a share, which on paper, is worth fifty rupees. This is the white money leg of the transaction, and in effect, is the commission paid to the operator (in this case the commission is 2%). All that remains is for the black money to be brought in. 

Source - http://articles.economictimes.indiatimes.com/2013-07-07/news/40408005_1_kolkata-firm-black-money-india-inc

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