Young ICCA and DIS40 Skills Training Workshop: Effective Written and Visual Advocacy in International Arbitration
Post Event Report
By Tainá Moreira de Araújo, LL.M Candidate at Goethe-Universität Frankfurt am Main and Gustav Flecke-Giammarco, Senior Associate at Heuking Kühn Lüer Wojtek
Every September, Berlin plays host to the DIS Autumn Conference, drawing an increasingly international audience from various jurisdictions. Perfectly aligned with Young ICCA’s mission to help introduce young talent into the field and provide a platform for an exchange with seasoned arbitration practitioners, this year’s Young ICCA and DIS40 Skills Training Workshop Effective Written and Visual Advocacy in International Arbitration (“Workshop”) attracted 50 participants. During this intricate half-day conference, students and young lawyers had the benefit of interacting with a diverse and distinguished faculty on “how to make your case”.
Thanks to its generous sponsors (Noerr LLP, LALIVE and the German Institution of Arbitration (DIS)), many participants availed of Young ICCA’s complimentary accommodation offer and traveled to Berlin on the eve of the Skills Training Workshop to gather a taste of German bread and beer at a typical “Abendbrot” kindly hosted by WAGNER Arbitration.
Noerr LLP hosted the Workshop at its Berlin office on 27 September 2016. The participants lively debated issues concerning written advocacy and the use of visual tools to capture the tribunal’s attention. Professor Klaus Sachs, Partner at CMS Hasche Sigle and a member of the Governing Board of ICCA and the DIS, guided the workshop providing his distinct observations as the Guest of Honor.
The concept of the Workshop mirrored the players’ interaction in international arbitration by first allowing counsel to share their views and experience on each of the topics being discussed. An in-house counsel was then invited to comment upon the client’s expectations. Finally, Professor Sachs provided the audience with the arbitrator’s point of view.
1st session
After Lucie Gerhardt, Senior Associate at Noerr LLP, welcomed the participants, the first session entitled “Making Your Case: Mastering Written Advocacy”, moderated by Kieran John McCarthy, Associate at Eversheds, began. The panel was composed of Tanya Landon, Partner at Sidley Austin, Thomas Granier, Associate at McDermott Will & Emery and Alexander Schilling, Senior Legal Counsel at Siemens AG.
The first session included the following topics: (i) creating a coherent case narrative, (ii) effective use of witness statements and (iii) tone, style and knowing your audience.
(i) Creating a coherent case narrative
Tanya Landon reminded the participants that the ultimate goal of any arbitration practitioner is to persuade the tribunal. She defined persuasion as the successful communication of an idea. As counsel, you are trying to convince the decision maker that what you write is true and in accordance with justice. This can only be achieved by developing a compelling case theory, a story-telling mechanism that stirs the audience’s mind. Tanya suggested that counsel have to go beyond facts and law to create a narrative that will catch the arbitrators’ interest and convince them where the justice and equities of the case lie. Depending on the characteristics of the dispute, storytelling can be particularly important since arbitrators are human beings and have human responses. When drafting the client’s story, counsel should therefore appeal to different levels of human responses by using the three models of persuasion once outlined by Aristotle: logos, pathos and ethos, respectively reason, emotion and character. A case theory should be based on factual and legal arguments that are logical and reasonable; it should evoke the arbitrators’ sense of justice, appealing to their personal view of what is right and wrong, by convincing them that your client’s case is the just one; and it should at all times maintain the credibility of the advocate and the client. When asked for practical tips and tools that could assist the drafting process, Tanya pointed to the vital importance of a concise and compelling introduction of your theme in the client’s brief. She spoke in favor of distilling it down to one or two paragraphs and introduced the elevator ride test: you need to be able to show what you are doing and why your client should win in a two minute conversation.
Thomas Granier highlighted that preparation is key to developing a case theory. The story does not come in a snap, as much as writing a novel can be excruciating for the drafter. He considered that this process is carried out in two aspects, the collaborative aspect between the client and the lawyer, and the individual aspect of drafting. The goal is to create a story within which your theme can develop. In order to fill a blank sheet of paper with a story, Thomas suggested a four-step process: first, getting the facts of the case straight, which entails meetings with clients and witnesses, reading time and establishing the chronology of events; second, resisting the temptation to immediately jump on legal research to find or convey a theme. Making a halt helps avoid framing your argument or getting caught up in legal theories which are not supported by the facts of the case; third, doing legal research to check whether all hypotheses hold up, get the law straight and confirm whether the client has a claim; and, fourth, to draft a compelling story by applying your facts to the established conditions. To round out these suggestions, Thomas recommended avoiding overstatements and sweeping bad points under the carpet as you will get caught. Counsel should be honest and reliable. They must keep in mind that the arbitrators will delve into the facts and read their story critically and analytically.
Alexander Schilling shared his thoughts about the importance of collaboration between in-house counsel and advocates drafting a legal brief when developing a coherent and compelling story. He stated that a proper exchange of information is indispensable for effective case handling. Normally the in-house counsel knows more about the specific industry and market segment and is already acquainted with the facts and the parties. In order for a story to be compelling, it must take into account the particular setting of the case. However, outside counsel should keep a fresh, independent perspective on facts, check their plausibility and if they really corroborate your story. The importance of collaboration between internal and external counsel also extends to dealing with bad points. Alexander suggested that you should never close your eyes with respect to inconvenient facts but embrace them and make them part of your case. Opposing counsel will look for flaws in your storyline and you simply lose credibility and persuasiveness in case of contradictions. Lastly, he recommended that counsel keep an open mind regarding the information provided and should not have a pre-fabricated storyline or a “know-it-already” attitude.
Professor Sachs observed that not pre-fabricating the story is a lesson that should always be kept in mind by practitioners. It is most disturbing for arbitrators if counsel tells them a story that is not backed up in facts. He recommended a balanced approach, not to make the story too sharp, not to be too harsh with your words and to add a bit of “poison” but never too much. According to Professor Sachs, counsel will lose credibility if they exaggerate or are later contradicted by their opponent.
(ii) Effective use of witness statements
Tanya, while recapping that a witness statement is not a pleading and should not be treated as such, clarified that a good witness statement will be true to the witness’ story, will recount the witness’ perspective and experience of what happened and will also support and advance the case theme that counsel is developing. Witness statements can be an effective piece of written advocacy if they account for what happened, bolster the importance of certain documents and also put into context inconvenient facts.
Thomas mentioned that a witness statement will bring added value if the witness can simplify complex facts and explain, in a clear manner, industrial knowledge and specificities of the market. Only repeating facts that are already accounted for in the evidentiary record is not very helpful. A witness statement can be effectively used if, for example, it explains situations that documents cannot: while documents explain what happened, a witness statement can effectively explain why things happened in that specific way.
Alexander, commenting on frequent mistakes in connection with witness statements, mentioned that it is important for external counsel to take into consideration case management and case planning aspects, mainly with regard to analyzing the real need for the witness statement and timing of the drafting process.
Professor Sachs considered that witness statements can be very useful and help the Arbitral Tribunal to spot relevant contradictions. They also assist in focusing the arbitrators’ attention at the hearing and identify possible subjects on which the arbitrators should pose questions if opposing counsel fails to address dispositive issues. When asked whether “less is more” with respect to witness statements, Professor Sachs mentioned that it depends on the case but pointed to the danger of over-engineering witness statements. A discussion evolved and came to the conclusion that counsel should never go into a witness interview with a prepared draft, avoid that the briefs and witness statements have the same tone, and not try to put too much on the back of a single witness. Professor Sachs then mentioned that one way to ensure the effectiveness of witness statements is to have a meaningful mid-stream conference. This procedure, which is sometimes referred to as Kaplan Opening, aims at creating more interaction between counsel and arbitrators. It stems from an old tradition in the UK and amounts to having a mini-hearing after the first round of submissions in which the arbitrators, based on the briefs and documents they have received at that point, discuss with counsel the relevant issues on which they want to hear more or need more evidence. Adopting this approach will often lead to a more effective and focused second round of submissions and witness statements.
(iii) Tone, style, and knowing your audience
When asked if there are any particular expressions, styles or litigious behavior he would rather avoid considering his audience, Alexander advised to use easy to grasp language and not to use an overly aggressive tone. Clients hardly ever want to have a brief with excessive attacks on opposing counsel or witnesses filed on their behalf.
Tanya agreed that keeping language simple and easy to follow should be a rule adopted by both native speakers and non-native speakers. She referred to the "plain English" movement in legal writing and read out a highly illustrative passage from one of Lord Denning’s judgments.
Thomas advised against hammering home a point at oral hearings as the arbitrators may see this form of educating the tribunal as offensive. Counsel should rather focus on convincing briefs and anticipate problems at the hearing.
Professor Sachs also opined that practitioners should concentrate on clear language, avoid too strong terms and repetitions and try to be concise.
2nd session
After a short coffee break, the Workshop resumed with the second session entitled “Best Impressions: capturing the tribunal’s attention”, moderated by Joseph Schwartz, Associate at WAGNER Arbitration. The panel was composed of Bernd Ehle, Partner at LALIVE, Olga Hamama, Principal Associate at Freshfields Bruckhaus Deringer LLP, and Michael Bode, Legal Counsel at M+W Group GmbH.
The second session included the following topics: (i) “Demonstrative Exhibits” and why they are effective, (ii) visual tools in written submissions and at the hearing and (iii) impressions outside of written and oral submissions.
(i) “Demonstrative Exhibits” and why they are effective
Bernd Ehle launched the debate on this topic by giving a presentation in which he explained the term demonstrative exhibits, their origin and the psychology behind their use. According to Bernd, who wrote a seminal article on the topic, demonstrative exhibits were first used in jury trials in U.S. criminal and civil litigation to increase the jury’s level of understanding and retention of facts. Demonstrative exhibits are evidence presented through visual aids with no probative value that are expressly created for the proceedings. In other words, they are not evidence as such but serve to bring evidence to life and capture the tribunal’s attention. Examples frequently encountered in practice are charts, graphs, timelines, computer animations or simply enlarged copies of decisive contract provisions. Statistics comparing the communication styles of practicing attorneys with the general public however show that 61% of the general public are visual learners, whereas the share among practicing attorneys is only 46,9%. When asked which rules should be taken into account when using demonstrative exhibits, Bernd stated that there are no hard-and-fast rules with respect to demonstrative exhibits, and that arbitral tribunals generally admit them but retain discretion to address their cogency and probative value.
Olga Hamama stated that demonstrative exhibits are a tool that should not be used to educate the tribunal but should rather be used in the most effective way possible to draw the tribunal’s attention to the most important documents of the case. They simply turn complex information into interesting and persuasive graphics. A question from the floor then triggered a discussion on the market for service providers who specialize in preparing demonstrative exhibits upon the client’s demand.
(ii) Visual tools in written submissions and at the hearing
Olga followed up with a presentation that discussed the use of visual tools in written submissions. She considered that the use of demonstrative exhibits depends on the subject matter of the case: the more complex the issues dealt with in the arbitration, the higher the probability of using demonstrative exhibits. The goal is to find a perfect balance and not to overdo this exercise by focusing on the most relevant aspects. Olga explained that counsel should always verify whether visual aids are really useful to know and understand the facts of the case. Regarding technical issues, it may rather be helpful to liaise with the client. However, engineering issues can for example also be visualized to help the tribunal understand what counsel or experts are talking about. Other examples include tables detailing payment streams or damage calculation, charts showing developments in different markets, shares or currencies or other graphs such as timelines that tribunals often find helpful.
Professor Sachs remarked that it makes a difference whether demonstrative exhibits are incorporated into a brief or used in an opening statement. He has seen them trigger disputes between counsel on whether graphs are admissible as they are “new” documents. The other party will normally counter that it has not created something new since all relevant facts used in the demonstrative exhibit are already on record.
(iii) Impressions outside of written and oral submissions
When considering the use of demonstrative exhibits, Michael Bode reminded the participants that from the in-house perspective the costs associated therewith have to be considered in order to decide whether the demonstrative exhibit is of decisive importance in the case. The client’s first inclination may often be to ask: do we really need this? He also shared his impression following his move from private practice to his company’s legal department that he had never imagined how hard it is to find facts when you are close to the people. It can also be very challenging for an in-house counsel to trace the right information. The next task then consists of understanding what is technically relevant and translating it for external counsel so that they can digest the facts.
Professor Sachs mentioned that he considers it very important to provide the tribunal with charts visualizing all relations, dates, assignments and mergers in multi-party and multi-contract arbitrations. Concluding this topic, Professor Sachs stated that there is a common agreement that demonstrative exhibits are helpful if used correctly. They must be well prepared and well dosed - otherwise they will not enhance the quality of the pleadings. At the same time, arbitration practitioners have to take a critical look at such new developments because the more parties use innovative tools such as demonstrative exhibits, the more complex and therefore more expensive the proceedings become. Professor Sachs left the audience on a personal note, stating that maybe it would be time for practitioners to forget a little about complicated visual aids and to go back to the roots of arbitration: having an efficient system of dispute resolution. Arbitrators should therefore actively work against this trend by streamlining the proceedings.
Elizabeth Hincapié, Legal Counsel at Hyundai Motor Europe, closed the Workshop by thanking the excellent faculty and sponsors. She was impressed by the very active discussion and concluded that the goal of the Workshop, to give young professionals an opportunity to learn from real life experts how to capture the attention of tribunals, was successfully achieved. Thanks to these valuable lessons on effective written and visual advocacy, all participants could now apply their knowledge in practice and strive to present compelling cases.