Many of the skills U.S. trial lawyers bring to a jury trial are well-suited for advocacy in international arbitrations. However, some critical differences also exist. While many juries love melodrama in the courtroom, international arbitrators generally frown on such "antics."While many juries love a crushing, aggressive cross-examination, international arbitrators generally are made very uncomfortable by such "ungentlemanly behavior."While being a persuasive writer is secondary to being a persuasive orator in jury trial work, an advocate in international arbitration must be skilled at both. This article discusses some of the critical elements of good advocacy in international arbitration: (i) strategizing the case carefully; (ii) selecting the right arbitrator; (iii) making a persuasive impression in written submissions; and (iv) conducting an appropriate and persuasive cross-examination.
A well thought out plan for winning the case cannot be conceived without understanding the facts and the applicable law, so the preparation of the strategy must begin with them. The factual investigation and legal research provides the foundation for articulating a theory of the case. Inherent in the facts are the "equities" of the case - the human sense of "fairness" or "unfairness" arising from the acts of the parties in their dealings, the "wrongs" that were committed by one party against another, and the injury that was suffered by one party as a result.These are the engines that drive the case. Also, in developing the strategic plan, counsel should always anticipate the opposition arguments and review the documents, interview the witnesses and research the law to find the answers to those arguments, and then sharply focus one's own arguments. Focusing the arguments sharply also means developing themes for the case and jettisoning weak claims, defenses and arguments.
Good arbitrators make for a good arbitration. Typically each party selects an arbitrator and either the party-appointed arbitrators select the presiding arbitrator or the institution does. In this typical situation, the advocate can have some effect on the outcome by selecting an arbitrator who has certain important qualifications for the conduct of an arbitration. The advocate should consider several attributes. First, the party's arbitrator should be someone with integrity who will not permit untoward influences on the tribunal. Second, the arbitrator should be intelligent, someone who will be able to understand the case and see through the clever arguments of opposing counsel that have facial appeal but little substance. Third, the arbitrator should be detail-oriented, someone who will review the documents and analyze the case carefully. Fourth, the arbitrator should be articulate and have the personality to develop a good rapport with the other arbitrators, particularly the presiding arbitrator. Finally, the advocate will often seek to appoint someone who is predisposed towards his side of the case. This last point deserves particular attention.
It is not objectionable to appoint an arbitrator who is predisposed towards the party's case in the sense that he is from the same country, the same type of legal system, the same culture, the same industry, or has written or lectured on the area of the law involved or even the type of dispute involved, provided that any positions taken were generic and not specific to the case in which he is appointed. Generally, all arbitrators in international arbitration must be impartial and independent, and thus, capable and willing to exercise independent judgment in deciding the case. A generic predisposition is not necessarily inconsistent with this standard. Predisposition, as properly defined in this context, does not (and cannot) guarantee the party even one vote on the Panel. The thoughtful advocate will be reluctant, however, to sacrifice the other important qualifications of an arbitrator for predisposition. There is also another potential problem with an arbitrator who is too predisposed. It is the authors' experience that the members of an arbitral panel will often bond during a case, particularly one involving a long hearing. One of the traits that brings them together is their common perception that they are impartial and their common striving to determine how to properly decide the case. If one among them comes to the Panel with his mind already decided, effectively acting as an advocate for a party, then that arbitrator does not share the same attitude toward the case as the others and may not have the same credibility and ability to persuade in deliberations.
The advocate should interview potential arbitrators, whenever possible. Even though an in-depth discussion of the case should be avoided, counsel can use the interview to develop a rapport with the candidate. In fact, this is probably the most important consequence of the interview. While a proper interview will not inform the advocate how the candidate will vote in deciding the case, it should provide the background of the candidate, published materials to be reviewed, references to be checked, an impression of the candidate's integrity, intelligence, articulateness, and personality, an idea of whether he is detail oriented, some concept of whether the arbitrator will be receptive to counsel's style of presentation, and at least some assurance that the candidate's background and attitudes do not predispose him againstthe appointing party's case.
The precise nature of the pleadings will depend on the arbitral rules and the scheduling order of the arbitrator. As a general rule, one might expect a request for arbitration containing a statement of claim, an answer and possibly a counterclaim. Replies might be allowed, although this is usually reserved for the memorials.
Advocacy in pleadings in the United States is generally unknown because they are not seen by the jury. Thus, the U.S. trial lawyer tends to prepare "notice" pleadings, which are pleadings sufficient to put the opposing party on notice of the claims or defenses. Notice pleadings are generally as brief as possible and do not elaborate on the facts or law any more than absolutely necessary. In contrast, civil law counsel often develops the pleadings in much more detail. It is the authors' opinion that the civil law approach is generally better in an international arbitration.
In international arbitration, the best and fullest opportunity for persuasion is usually provided by the memorials. The advocate should fully argue the case in the memorial and generally not leave important points solely for oral testimony or argument. The reason is threefold. First, in many countries there is little or no tradition of oral advocacy, and arbitrators from those countries are much more likely to be persuaded by the memorials than by oral arguments. Second, even in common law countries, there is a strong tradition of written advocacy in briefs and memorials, and the dominant learning sense of many, or perhaps even most, lawyers who act as arbitrators is often reading, not listening. Third, the written memorials and witness statements endure. They are enshrined in the record and are there for the arbitrators to refer to again and again, immutable. They are easy to quote in the award without mistake.Oral testimony and argument move quickly and are either noted in writing (a verbatim transcript or the arbitrators' handwritten notes) or lost. It is not easy to locate, check and quote. The advantages of written advocacy should not be underestimated.
Legal systems based on the British common law system, including the United States, embody a rich experience with cross examination, with numerous practitioners skilled in this art.Many countries however, employ little or no cross examination of witnesses in their legal systems so the experience and practice of cross examination varies widely from country to country. Nevertheless, cross examination is generally allowed in international arbitral proceedings today, and a knowledge of this art form is important.
From the practice of cross-examination as it has developed to date in international arbitration, certain rules of cross examining witnesses can be deduced. Ten such rules are set forth below.
1. Cross examination should be conducted in a civil and respectful manner.
2. Cross examination should generally be brief and to the point.
3. Counsel should know the purpose for examining the witness and have a well thought out plan.
4. The advocate should rarely plan on making his case by cross examination.
5. The force of a good cross examination is found in the substance of the questions asked. They should be carefully thought out and meticulously phrased to be very pointed, like a sharpened scalpel, not a blunt instrument.
6. The advocate must exercise some level of control over the witness.It is within the Panel's discretion, of course, as to how much or how little to allow a witness to say in response to a question from counsel, but the Panel should not allow cross examination to be frustrated by speech-making, filibustering and evasion by the witness.
7. The advocate should be prepared for the unexpected answer. Without a deposition of the witness in advance as practiced in the United States, counsel must cross examine without knowing how the witness will answer many questions posed.Thus, cross examination should often be conducted in the British style, as the authors understand it, with the first question of a line of examination being general and tentative, allowing counsel to retreat gracefully if nothing can be obtained.
8. The advocate should often begin and end the cross examination with the two strongest points that he is confident can be successfully made.
9. Avoid arguing with the witness or asking questions that are primarily argumentative in nature. Proper cross examination is factual in nature. Ask questions designed to bring out the facts. Save argument for the proper time.
10. Listen to the answers of the witness. Good follow-up questions can be asked if the questioner listens to the witness instead of thinking ahead to the next question while the witness is answering. Listening carefully means noting any evasions, subtle distinctions or nuances in the answer that deserve further scrutiny.
Preparing for written and oral advocacy by adopting the techniques outlined above should stand the advocate in good stead with any tribunal. Yet the techniques of advocacy are only the handmaidens of persuasion; the facts, the law and the equities of the case have always been, and remain, the keys to winning.
R. Doak Bishop is a litigation partner in the Houston office of King & Spalding LLP. He is vice chairman of the Institute of Transactional Arbitration. Adam P. Schiffer is a partner in the firm's Houston office as well.