Young ICCA Skills Training Workshop: Advocacy in Opening and Closing Statements

Post Event Report

by Sebastian Mantilla Blanco, Gómez-Pinzón Zuleta Abogados S.A.

On February 20th, 2013, Young ICCA organized a skills training workshop for young lawyers and students. Participants had the opportunity to share experiences with and obtain practical advices from five top international arbitration practitioners.

Five panelists conducted the workshop: Dietmar Prager, Partner at Debevoise & Plimpton LLC (New York); Claudia Frutos-Peterson, Senior Counsel at Curtis, Mallet-Prevot, Colt & Mosle LLP (Washington D.C.); Adriana Braguetta, Partner at L.O. Baptista Advogados (São Paulo); Christian Leathley, Partner at Herbert Smith Freehills (London & Madrid); and Eduardo Zuleta, Partner at Gómez-Pinzón Zuleta Abogados S.A. (Bogotá).

During the first part of the event, panelists discussed advocacy issues of practical importance for opening statements. In this connection, they shared the following tips:

• Use opening statements as a means to focus the tribunal on the core-issues of the case.

• Simply tell a story that the arbitrators may remember in the future. Let the tribunal reach its own conclusions.

• Prepare a clear and interesting structure.

• In most cases, short statements are more effective than long statements.

• Power point presentations, if used, should have a clean format and not contain too many words per slide. Otherwise, the presentation may become a distraction rather than an aid.

• Making reference to specific pieces of documentary evidence may help to draw the attention of the tribunal to key documents. In this vein, projecting excerpts of those documents might be convenient.

• Identify documents by reference to their exhibit number.

• Be flexible enough to adapt your presentation to questions and interruptions.

• Prepare a lively, unexpected and original presentation.

• Project confidence, but be not arrogant.

• Avoid explaining legal issues that the tribunal already knows.

• Keep your time, but avoid speaking too fast. Remember that in most cases a transcript is being prepared during the hearing.

• Observe how well does the tribunal know the case. If necessary, change your strategy on the spot.

Panelists further discussed whether there are particular differences between opening statements performed by lawyers from common and civil law jurisdictions. While some considered that common law lawyers use to be more prepared for oral advocacy, others held that style differences are mainly noticed in cross examinations rather than in opening statements. Finally, the Panel analyzed whether the tribunal should provide the parties with a guideline on the issues they expect to hear in the opening statements. Panelists agreed that such guidelines might be useful for identifying possible preconceptions. However, the threshold issue in those cases will be to prepare an opening statement able to produce a change of perception.

During the second part of the event, panelists discussed advocacy issues of practical importance for closing statements. In this connection, they shared the following tips:

• Ensure consistency between closing statements and post-hearing memorials. Keep in mind that the most important document of most proceedings is the post-hearing memorial.

• Closing statements should not be used as a means to reargue the case.

• Avoid introducing additional arguments. Focus on your strongest points.

• Be brief. Closing statements are an opportunity to provide a final message to the tribunal.

• Show confidence. The tribunal will not believe what advocates do not believe.

• If you are counsel for respondent, try to respond to claimant’s strongest points.

• If there is a choice between oral closing statements and post-hearing memorials, bear in mind that while memorials tend to level out the playing field, having success in oral statements heavily depends on your advocacy skills.

The panel further discussed whether the parties should focus on facts or on legal issues. Although opinions varied, all panelists agreed that the parties should determine their approach depending on the particular circumstances of the case.

At the end of the workshop, participants shared their opinions on the issues discussed by the panelists and approached to some of the panel members to ask a few final questions.