Alishan Naqvee is the founding partner of LexCounsel, one of the ILN’s member firms in India. In this episode, Alishan and Lindsay discuss how technology has changed the practice of law, what is intriguing about the modern practice of healthcare law, and what many people misunderstand about lawyers. Don’t miss this fascinating conversation!
You can listen to the podcast here, or we’ve provided a transcript of the highlights below.
Lindsay: Hello and welcome to the Law Firm Intelligence Podcast. I’m your host, Lindsay Griffiths, executive director of the International Lawyers Network. Our guest this week is a returning guest. We’re really excited to have him back, and that’s Alishan Naqvee of Lex Counsel Law Offices in Delhi, in India. Alishan, we’re really happy to have you back with us and even though a lot of people hopefully have listened to your first episode, we’d like to invite you to say a couple words about yourself and your firm and then we’ll dive into our questions.
Alishan: Wonderful. Hi Lindsay. Happy to be here again. I am Alishan Naqvee, as you introduced me. I’m the founding partner of the Indian law firm, LexCounsel Law Offices. We have five offices in India. We practice in the areas of corporate, commercial and dispute resolution with a specialization in education and life sciences and healthcare, an area I wish to talk about a little today during our podcast.
Our practice areas and our partners have been well recognized and well awarded in India. We are completing 20 years this year, and we will also be completing 15 years of our ILN membership this year. So good times, and thanks for having me on the podcast again.
Lindsay: Of course, yes, lots to celebrate. We’re very excited. Okay, so let’s dive into our questions. The first question I have for you is: what is something that most people misunderstand about your field of work?
Alishan: Well, generally there is a stereotype around the practice of law in India, and I will talk two things about it. Often we hear the clients, because I practice in the area of dispute resolution, and in India we take a lot of time in adjudicating and coming into final decisions through courts. Arbitrations are a little faster. Now, commercial courts are also a little faster, but usually notoriously slow is our justice administration system. And therefore, a lot of times you hear the clients coming after years or after some time when they’re unhappy with the outcome, they say that “Then this is not justice, ultimately.” I mean saying also that justice delayed is justice denied, but again, so many times, even if it is an order which they have, which is not completely in agreement with what they wanted, they say, “This is not justice.”
So, I tell them that my name is Alisha Naqvee after that, comma, advocate. So, my job is to contest your matter to the best of my abilities. I try to get you justice, but delivery of justice is not my job. Delivery of justice is the job of a judge, and when you see the name of the judge, you write the name and then you put a comma, and then say justice. So as lawyer, our role is very limited and we so long as we discharge our duty in contesting our matter to the best of our abilities, that’s what you expect from us.
And again, I tell my clients a lot of the times that even the best of our abilities, and that is why lawyers should put a 100% into their matters that they’re doing. There are always three sides to the matter, one is me, one is the opposite side, and one is the judge. Even if you do your 100% at the maximum, you have 33% chance of success because the opposite party would like to disprove whatever you are saying. And then the judges are also humans. They have their own understanding, their own notions, their own biases and their own perception of justice.
So, being a lawyer, and a dispute resolution lawyer at the most, I often tell that our job is to do the best work for you. Even if we do our best, we may have a very good chance of winning, but it is never above 50%, so to speak, even with good cases. So, managing client expectations is one thing in dispute resolution, especially in India where the court system is slow. One is that.
Second perception which I see very interesting is that, incorrect, I have seen lawyers hardly being part of any disputes. As a community Lawyers are most dispute averse species. We do not like disputes in our personal life. We don’t like disputes with our neighbors, we don’t like disputes with our properties, but their perception that lawyers create disputes. If you go to lawyers, I don’t know whether it is true in other parts of the world, but in India, surely I hear a lot of non-corporate clients or general people who are laypersons who may be controlling businesses not part of multinational corporations often say that, “Oh, if you go to lawyers for business advice, they will try and create a dispute.” Completely untrue.
So, these are the two parts which according to me are most misunderstood about a lawyer’s practice. One is that a lawyer is the one responsible for delivery of justice for you. We can only fight your case. And secondly, lawyers create a dispute. No lawyers try their best to resolve your disputes and advise you also not to go for a dispute and try and resolve it any [inaudible 00:05:04]
Lindsay: Those are really interesting Clarifications that I have never thought of before. And your first point really reminds me of one of my favorite quotes by Anais Nin, which is that “We see the world not as it is, but as we are.”
Alishan: Yes, correct. Absolutely. Yes, agree.
Lindsay: So, moving on to my next question, which is: how do you think technology has changed the practice of law in recent years?
Alishan: So, Lindsay, as I said, I am a practicing litigator in addition to having a fair amount of corporate practice. As a litigator, what I have seen with corona and the courts becoming virtual, it’s something very interesting that today in India, by an order of the Supreme Court, all the courts are obligated to be virtual or hybrid. Now, our certificate of practice in India entitles me to practice throughout India. I’m not registered in a particular state. I’m registered of course in a particular state, but I’m entitled to practice in any code across the length and breadth of my country.
Now, what virtual courts have done is that I can take up matter anywhere in India provided they have a hybrid system, which means some lawyers can appear physically, some can appear virtually, and both can, and there’s a two-way communication. I hear them, they hear me, the judges hear both of us and we hear the judges, both of us.
So, now what has happened with that is today, A, the cost of litigation has gone down significantly for a lot of clients who are not looking to hire those few lawyers who are at the top. Now, if you want to hire those lawyers in a particular area, super-specialized senior advocates, of course you have to pay their fee. But there is a wider bouquet of lawyers available even to the clients in the smaller towns. They can hire somebody, they may be in a remote town in India, or in an industrial town in India where they have a dispute, and they have to go to a local jurisdictional court. But that domain expertise related to maybe oil and gas, or manufacturing is not available legally in their specific city. They can hire a lawyer from Delhi or Mumbai or a larger city of India where they have these expertise and make them appear virtually. So, it, A, lowers the cost of our traveling. B, it also makes our expertise available to them.
So, it has interestingly brought about a level playing field in a manner that never existed in India. And I’m sure it’s across the world also because courts have been virtual across the world during corona. When we were coming out of corona, we couldn’t risk public gatherings or courts being physically attended by people. So, this is one thing which I see has literally changed my practice. I am able to take more briefs across India. I have experience of appearing in different tribunals in India, different cities. We have spread the practice across India, different courts. So, our physical location is no longer a foundation or a boundary, or a limitation for the client to afford us.
Lindsay: That’s really great. I mean, you’re talking about there being a level playing field, which I think advocates for a very long time have wanted people to have greater access to the law, which you’re saying that’s doing. I’m wondering if that means there’s been a greater appetite for dispute resolution then? And are you seeing there being more litigation as a result of that? Or is there still that same level? And is that as a result of lawyers still advocating the same amount of litigation? Or are you seeking alternative dispute resolution, those types of things? What are you seeing in terms of litigation?
Alishan: Well, actually, there is a major drift in India towards alternative dispute resolution. In fact, most of our high courts have a mediation cell attached to them, which is also made part with our lower courts. And in terms of some of our laws, I won’t make it hyper technical by naming the laws here, but in terms of some of our recent laws, it is mandatory for the parties to go to a formal mediation process before they can come to the court. Now, unless of course one party is seeking some injunction which they need to obtain without the other party becoming aware of, for example, intellectual property infringement cases. So, in those cases you may still put up an application and go to the court before going to mediation. But mostly there is a major shift towards mediation and then the arbitration for dispute resolution.
Still arbitration remains more expensive as compared to litigation, which is a major factor.
Lindsay: Interesting.
Alishan: Why do people offer litigation? Because in arbitration you have to take care of the fee of the arbitrators, you have to take care of the venue. Many arbitrations are virtual. I mean, roughly about, when I speak to arbitrators, they conduct about 80% of their arbitration hearings virtually. But still you put the fee of the arbitrator and if the arbitrator is a retired court judge, retired high court judge or retired supreme court judge, the fee becomes higher. Whereas if you go to the court, you pay a court fee, but then you don’t bear the establishment expenses. Those are borne by the government.
So, there is a significant, for the lower level of disputes, there is a significant inclination to go to the court. And if you have an arbitration clause, of course you will go to arbitration. You don’t have an option of going to the courts. But given an option when the volume of claim is low and you want to get an injunction and all, people will want to go to the court as against the arbitration. In a lot of agreements still it is very traditional in India that we put the court jurisdiction. We don’t necessarily put the arbitration jurisdiction because even at the time of drafting the fact plays in the mind of the parties that in this particular case, even if I have a dispute, the dispute will not be of such financial magnitude which will justify bearing the cost of arbitration. And which is why a lot of arguments in India still see litigation as the dispute resolution mechanism is against arbitration.
Lindsay: Wow, that’s really very interesting. That’s great.
Okay, so can you tell me about a client that changed your practice?
Alishan: Well, let’s say very interestingly, sometimes you say what’s your calling. So that moment happened with us when we started this firm. A few months after that, two youngsters who still remain friends, neither they are youngsters anymore, nor I am, both of them walked into our office and then they wanted some advice on one area of medical laws.
I know medical laws, as you know, has a backbone of science to it and not every lawyer can practice in the area of medical laws. It’s more like patents that if you do a particular patent, you need to be engineer or a doctor. You need to have the scientific knowledge even to write the patent documentation. [inaudible 00:12:29] not that intensive, but to a great extent, if you are practicing in the area of and advising clients on drug development, clinical trials, medical sciences, life sciences, healthcare, various areas related to that, medical devices now, you need to have an understanding of the science, therefore a basic understanding of science, which eliminates a lot of lawyers practicing into this particular domain.
Now, I have a science background, so when they walked in I had a discussion, I developed interest in it, started reading up on it. One thing led to the other in such a way that for the last decade I think we would be one of the leading law firms in India in the area of life sciences and healthcare. Having the maximum number of representation of pharmaceutical companies, of medical devices companies, of hospitals.
So that is a client who changed our practice. In fact, it gifted us with altogether a practice area where we have continued to benefit for the last 10 years, increased our knowledge, increased people, increased lawyers in that practice domain, number of clients we have in that area. It just happened. I think that was the calling.
Lindsay: I would say that’s a big change for your practice. That’s huge.
Alishan: Yes.
Lindsay: And so, speaking of your healthcare practice, what really intrigues you about that today?
Alishan: So, Lindsay, in this I will wish to talk about two or three different aspects. One is what is happening is medical law practice is changing very gradually as the treatments and options are changing. They’re becoming more and more scientific. We know people had in our families, they used to check blood glucose by glucometers, that strips were at a certain price. We would also have a blood pressure machine at home, not every household would have it.
Today, technology is one major player in the area of healthcare. So much so that sometimes you even wonder when you are in the domain of technology and when you are going into the domain of medical science. I will give you one example. Today, your smartwatches and your cell phone together give you a lot of health data, which if you gauge from individual devices will make those devices medical devices. Even the heart rate, your stethoscope, your pulses, your blood oxygen level, all these individual equipment are medical devices regulated across the world and you need licensing and registration for it.
When it integrates in a smartphone, it gives you all that data. Now it tells you that don’t make clinical decisions based on it because this is just for assistance for recording, but that’s something. But again, it is nevertheless giving a data integrated at a cell phone.
So, there are very interesting questions. Would smartwatches after some time, when smartwatches give more and more reliable data, would they be classified as medical devices? Or they won’t be? In fact, the smartwatches can be more of a medical device than other devices because they integrate four or five individual medical devices: blood oxygen, heart rate monitor, blood pressure monitor, stress level. I don’t know whether there’s a device for that. But you have all that data.
So this is one thing very intriguing about my practice on medical law, and often we get queries from clients asking that if they’re collecting this kind of an information, would it become a trial or a study in human participants, which is regulated? Because before they launch these features, they also study the features and the accuracy of it.
So, it’s during the test phase, you evaluate a technology, it is fine. But if you evaluate something for medical purpose and you collect the data of human, then again international and our Indian national guidelines, you need certain regulatory and committee approvals which may become applicable. But that’s a gray area which intrigues me.
Second is of course deep learning and artificial intelligence. And the way that scans work, we used to get a X-ray scan or get a scan, CT scan or whatever. Now, today what is done is, for example, we have worked for leading technology companies in the world who are now coming into data analysis. So, they have data of a particular condition of 10,000 people, 100,000 people. Now the moment an individual’s scan is put up and if you put two or three scans, it can actually predict whether the disease will progress or not. And you can actually start a predictive and preventive healthcare from now on.
Now, there is a cost of that preventive healthcare. There may be insurance also applicable to that preventive healthcare. Today, the person does not have it, but he may develop it in some time. Insurance covers the particular condition, the treatment of it, but whether it would cover the prevention of it today because insurance company may come and say that “How do I know that this will lead to that condition? You are asking me to pay for this treatment today when this person is not suffering from this condition. All you are telling me is that as per your technology, you know the person will develop this condition in five years and therefore I should pay now because after five years I will pay more.:
So, these are the areas where different industry players become involved, and technology is the game changer and others are trying very hard to keep pace with it. With that also comes the question of reliability of the technology.
Third aspect, very interesting, so I’ve been a part of some of the regulations which our central agency, ICMR, has brought in. I was a legal member of the guidelines which were brought in a few years back for clinical trials in children. Because again, some of the disease and a condition are specific to children, unless you try the drugs into them, unless you conduct a trial in them, you can’t develop it. You can’t develop a child’s medicine for a condition which lasts only till seven years of age or nine years of age by doing the trial drug trial in a 45-year-old adult who does not have that condition. But it’s a very sensitive topic in itself because the child has a whole life ahead of him, so I’ve been part of that also.
Now there’s a new guideline which has coming to India, which talks about trials in healthy humans. So traditionally, clinical trials mean that a person suffering from a particular condition, there are different phases, but in nonexpert’s town you check the toxicity of the drug, and you see how dangerous it can be and how intoxicating it can be, how much time it will be, it will take to absorb in the body. Pharmacodynamic, pharmacokinetic effect. Technical terms don’t want to bore you with it.
But you basically go into a person who’s suffering from this disease, you give the standard treatment, and you also induce in some arms of the study, the new investigational drug. You see whether it is being cured, whether it is a better treatment, whether the management of the disease is better, improving quality of life. Those are the parameters. After you’re able to establish it, then you go for registration of a particular drug.
Now, an antithesis to that, completely opposite to that is the trial in healthy subjects means if I don’t have a patient just under this trial, a particular disease or a virus will be injected into my body and then my immune response to that body will be seen. And after that, maybe the vaccine or drug will be given to see what the efficacy of it is.
Now, if you see [inaudible 00:20:32] it contradicts, every doctor is supposed to go under a Hippocratic oath which says, “Do no harm.” Now this trial starts with a harm. You are injecting a toxic element or a virus or a bacteria in a healthy human and then you start forming.
So again, a very interesting area. There have been these kind of regulations in other parts of the world. When these regulations come to India, there is a significant change in landscape and the ethical issues become very serious. The reason for that is if you go to a well-developed country, joining this study is not an enticement. The money paid to the participant cannot be an enticement in a country where the per capita income is already high. But when you bring these regulations to a country which is poor, there is a chance that some people may want to just get that money, what you are paying for participation and enrolling. So, the choice that they make or the consent that they give to participate in the study is not voluntary. It is induced by the financial benefit, which goes against the basic idea of research.
Lindsay: Yes.
Alishan: So, these are the things which, there are many more, but keeping the time in mind, these are the three areas which I have recently in the last one or two months on different clients advised on, and never seems to amaze me what is the length and breadth of this practice area and how conflicting it can be.
Lindsay: Wow. Those are things that I have never even thought of and they’re fascinating.
Alishan: It is, indeed, Lindsay. It took me, I would say that in the area of medical ethics, it takes I think a couple of years even to get that understanding where you can make an informed decision yourself as a lawyer because it is so conflicting. How do you pay a trial participant? Now somebody, if you pay compensation for their time, would you pay a high-flying lawyer higher compensation as compared to a person who’s unemployed? But does that mean that you are putting a value on life which you ethically can’t?
And if you pay full consideration to all of them, a lot of these participants who have far more productive job will not come and participate in the study, so your population will not be heterogeneous. And if your population is not heterogeneous, your scientific results may not be accurate. Therefore, that clinical trials are done in multiple countries across the world because for any drug or vaccine to be launched in the world, you need to try it between different gene pools. So, you will do it in Canada also, you will do in Europe also you will do in Japan, also Australia also India also maybe Bangladesh, maybe some countries of Africa. And everybody’s response, immunological response to a drug and medicine is different. Absorption rates are different.
Even for medical devices. If you see knee replacements devices, these are governed by the sizes. And if you see if in a particular, what will fit on the South Asian size may not fit the German size. So again, you have to have trials and you have to have all those formalities completed in every jurisdiction to launch something globally. So, lots of issues, very interesting issues and very academic.
The interesting part, Lindsay, what I wish to say is that it keeps you on your heels and so many times you feel so connected because this is real life. You are dealing with life and wellbeing of people. You are dealing with health at a national and at a global level. So, every regulation or guideline that comes in impacts everyone in one stroke.
Lindsay: Absolutely, yes.
Yes. As you say, things that are real life, things that could affect you and your family and people that you know. And yes, absolutely. That’s really fascinating.
Alishan: Yes, that’s very interesting, Lindsay. And also, one more thing I would say is that there is also another thing. If you see there’s a concept of orphan drugs, which are also drugs which are developed at some point of time, but at that time they did not find a use of it. But today they can be used for something else. And there are also funding requirement and there are special provisions for it.
There is also a huge challenge globally, which is a legal and financial challenge of developing the drugs for the people for the disease and condition which affect a minuscule amount of population. One in a million, one in 10 million. So, if the pharmaceutical companies invest money and develop these drugs, then they will perhaps be during the patent life of a drug of 20 years never be able to recover the investment, which is a disincentive for them to put money in the research of this particular molecule. Does not mean that governments can turn a blind eye towards this. That is where the whole issue of patient advocacy and government regulations come in. So many times when we advise on regulatory side, there are these considerations also which come into play.
Lindsay: Right. Right. I mean we just celebrated rare disease day the other day, and I know several people who either themselves suffer from rare diseases or have children who suffer from rare diseases, and it’s really interesting to see how many people there are who are, as you say, one in a million. And it doesn’t mean that you don’t study those diseases or advocate for treatment or drugs for those diseases but, as you say, the funding for those rare cases is so hard to come by. And that, as you say, that’s the question, is it these drug companies who are making those decisions of profit over people, it’s an ethical question.
Alishan: It’s an ethical question. And I would say that you cannot blame the investors in a pharmaceutical company. That is where the governments and the international bodies need to stand up, and they do so. They also support, there are also patient advocacy groups who develop it. There are also support groups who develop the funds. And we have seen various things. I’ve been involved with some of these societies in India who have garnered this kind of a funding. And then getting the funding, setting up a funding protocol in place, taking approval for these entities to receive donations.
Getting tax exemption for those donations is also something very different because you have to go to the department of income tax for that particular certificate, which will make it tax exempt. And you have to explain to them why this is necessary. Because just if you make a society capable of accepting donation does not make the donation tax exempt in India. You have to have something more. You have to go and apply. And that is where all the science and logic and emotional side and ethical side and financial side come into play.
Lindsay: Absolutely. Absolutely. Yes, that’s very interesting. That’s really great work you’re doing. As you say, I think sometimes people … That goes back to your first question that I asked you, what people misunderstand about your field of work, which is that a lot of times people think that lawyers are not doing important work, or that lawyers are a necessary evil. And this really goes to show that the work that you’re doing and that a lot of lawyers do is very important because they’re really advocating for real people who are doing very important work.
Alishan: Lindsay, again, a civilization thrives on the rights. And when I have a right, somebody has an obligation. And rights and obligations if they can’t be enforced in a civilized environment, then rights and obligations lose their value. I don’t have a right if I cannot enforce a right. And it is for enforcement of rights that first the governments are made responsible. And after that, if you look the social architecture, that is where the judges and judiciary come in. And laws are made to enforce your rights, to protect you and to preserve you and to give you rights. So, lawyers, I think, are a very important spoke in the whole wheel of civilization, if not the axis of the whole of it.
Lindsay: I absolutely agree. I absolutely agree. So, one final question, and that is one of my favorites, and it’s what does being part of the ILN mean to you?
Alishan: Well, Lindsay, as I said earlier, we will be completing 15 years of it, of ILN. I cannot think of any year where I haven’t attended an ILN conference and not met my friends. Of course, when we take membership, referral remains an important consideration. But if you live in a network enough and longer, you tend to see a lot of benefits which are not apparent from the face of it.
Now, everybody knows referral is a benefit of coming into legal networks. I will talk about a few other things. Over the years, I am a founding member of this law firm, so many times I need ideas for the growth of the firm, for the management policies of the firm, internal management. And I have found the partners of other firms who are members of ILN so helpful in sharing their experiences over this issue. And that’s priceless because I can’t go and talk to anyone in the market who doesn’t know me well enough or who I don’t have an association close enough to tell me how he’s running his practice, what has been his failures, what have been the experimentations worth doing, which path shall not be followed because it can be disastrous, though it looks attractive in the beginning.
So all those experience I have to share. And I have received tremendous feedback and support from a lot of older members of the ILN network. The younger members, you just talk to them, as you say, well, lawyers make friends. So, it goes far beyond referral. And ILN means a lot to me from that perspective as well.
Lindsay: I’m so glad to hear that. That makes me very happy. Well, Alishan, as always, this was really delightful. Thank you so much for joining us. And to all of our listeners, thank you so much for joining us. We’ll be back again next week with our next guest and please take a moment to rate, review, and subscribe on Apple Podcasts, or wherever you listen to podcasts. Thank you so much.
Alishan: Thanks a lot, Lindsay. Thank you very much.
