Young ICCA Skills Training Workshop: Making the most of the hearing
Post Event Report
Report by By Rebeca Mosquera (Hughes Hubbard & Reed LLP – New York) and Francisco J. Muñoz (Rattagan Macchiavello Arocena – Buenos Aires)
On November 4th, 2016 Young ICCA held a workshop in Buenos Aires, Argentina, on the topic “Making the most out of the hearing,” in which well-known international practitioners shared their thoughts and experiences with young practitioners and students from all over the world. The event took place at the University of Buenos Aires, School of Law, on the sidelines of the 2016 Foreign Direct Investment Moot and was kindly sponsored by the Argentinian firm, Estudio Beccar Varela.
The goal of the workshop was to promote a discussion on how to best utilize an arbitral hearing and how young practitioners can support senior attorneys and partners in the preparation of the case.
The speakers on the first panel were Prof. Dr. Guido Tawil, partner at M&M Bomchil (Argentina); Jessica Beess und Chrostin, associate at King & Spalding LLP (New York); and Emmanuel Kaufman, partner at Knoetzl (Austria). The panel was moderated by Angélica Huacuja, associate at Hogan Lovells (Mexico/New York).
After an introductory opening speech from Ms. Huacuja, the panel began the discussion by answering the questions posed by the moderator and providing advice to young practitioners on how important their participation and support to senior lawyers is before and during the arbitral hearing.
Fist, the speakers highlighted how critical it is for young practitioners to have a complete knowledge and understanding of the facts and evidence, to be helpful in the preparation of audiovisuals, witness-prep, assembling exhibits, and drafting of opening and closing statements.
Second, the speakers agreed that the best opening statements are easy to follow, and aim to seize the attention of the tribunal, which in turn will lead the tribunal to understand the key arguments supporting the party’s position. The panelists conceded that when audiovisual aids are used, they should be carefully prepared, and should contain all relevant information while being short, concise and to the point.
The panel concluded that the three worst things a lawyer can do in her opening statement are: (i) to have a long and boring speech; (ii) to read the presentation; and (iii) to prepare slides with too much information making them impossible to follow.
Third, the speakers dealt with the subject of direct examination by explaining when it is advisable to have direct examination. The explanations were meticulous given the fact that the audience was greatly composed of young practitioners from civil law systems where examinations of this kind seldom exist.
The panel presented an array of practical suggestions with respect to direct examination in arbitration proceedings. For example, the speakers agreed that a direct examination, longer than 20 minutes, is generally ineffective, unproductive and risky. The panel strongly discouraged the direct examination of unreliable witnesses.
Fourth, the panelists addressed the issue of cross-examination, which was described as a key instrument in an arbitral hearing. The speakers emphasized that a cross-examination is effective: (i) when the arbitral tribunal can follow the reasoning behind the questions asked; (ii) when the questions are short and to the point; (iii) when lawyers do not harass or berate the witness; and (iv) when the lawyer maintains control of the witness.
The panel recommended that lawyers should always observe the arbitrator’s reactions during cross-examination, and recognize whether the tribunal is comfortable with the lawyer’s questioning style, and whether the questions are useful to the tribunal. Further, the panel agreed that when a lawyer is not obtaining the desired information and is not being able to control the witness, it is better to conclude the cross-examination, instead of continuing the cross-examination expecting to get to the “I want the truth! … You can’t handle the truth!” moment.
Finally, the panelists spoke about the topic of closing statements. For a closing statement to be effective – the speakers argued – the lawyer must prepare a short (no more than 45 minutes) presentation that includes all key issues and facts argued during the hearings. The panel further agreed that, as a general rule, tribunals do not like long closing statements where the lawyers only repeat the arguments submitted in writing.
The second panel was a mock direct and cross examination, where Prof. Dr. Guido Tawil acted as Sole Arbitrator; Ms. Jennifer Permesly, counsel at Skadden, Arps, Slate, Meagher & Flom LLP (New York), acted as counsel for the Claimant; Mr. Patrick Taylor, partner at Debevoise & Plimpton (London), acted as counsel for Respondent; and Ms. Mariana Lozza, attorney at Argentina's Attorney General's Treasury Office, acted as witness.
During this exercise, the counsel for the parties demonstrated various approaches to aspects of the examinations in order to show the audience what should and, more importantly, should not be done during the hearing, for example, a lengthy direct-examination, insisting on a line of questioning when the arbitral tribunal has already rejected it, interrupting the opposing counsel’s examination with court-style objections, among others. At the end of the mock hearing, the panelists discussed the mock hearing with the audience, and what they should have done differently. Finally, Prof. Dr. Tawil shared his views, as an arbitrator, of what he believed was well done, noting in particular the value of using open questions in direct examination and closed questions in cross-examination.
After the discussion, Ms. Huacuja gave the closing remarks concluding that the hearing is a key stage in the arbitration proceedings, and that young practitioners should be prepared to assist and contribute to its success.
The event was followed by the FDI Coaches and Arbitrators Dinner, where Young ICCA members were able to network with several other arbitration practitioners.