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Making the most of opening statements

27 April 2017

Making the most of opening statements

From left to right: Fredrick Norburg, Nils Eliasson, James Hope, Huawei Sun and Pontus Ewerlof

Speakers at GAR Live Stockholm today questioned whether opening statements are useful in arbitration – and whether counsel can make them more effective through being brief, submitting skeleton arguments or relying on visual aids, even Casablanca

As chair of the session, Vinge partner James Hope suggested that these statements can be more of a hindrance than a help – and  too often seem an unnecessary preliminary to the exchange and examination of evidence which forms the real meat of the arbitration.

In some cases they appear to serve little purpose at all, he said. “And that leads to the deeper question of just what purpose the hearing, with its sideshow of witnesses, really serves."

His view of opening statements was supported by Huawei Sun, partner at Zhong Lun in Beijing, who questioned what value they add and suggested they should form only a small part of the hearing in most cases. 

But Pontus Ewerlöf, head of dispute resolution at MAQS in Stockholm, insisted the chance to "frame the case" at the start should not be missed as it can benefit both counsel and the tribunal.

“You hope that the tribunal has reviewed all of the documents in the case but opening statements are an opportunity to make sure they have made the connections,” he explained.

For lawyers, meanwhile, they are a chance to make a good first impression. Hong Kong-based Shearman & Sterling partner Nils Eliasson said counsel can “gain confidence and credibility in the eyes of the tribunal” through their mastery of facts and evidence and responses to questions. Acknowledging weaknesses in their case at the outset is also advisable.  

Fredrik Norburg, founding partner of Stockholm boutique Norburg & Scherp, added that the statement can be a chance to advance your client's "moral" case as a backdrop to the "technical" case, which will emerge later in the hearing. Decision makers are different and some may be more receptive to this than technical arguments, he said. 

An hour's enough?

At a recent conference in Stockholm, a prominent arbitrator said that opening statements should be “no longer than an hour” or he would stop listening. Hope wanted to know whether delegates from different legal cultures thought this reasonable and their views on agreeing time frames for statements in principle. 

Sun said she understood the benefit of limiting the time for such statements, as it requires counsel to “discipline their minds” and focus their case. But Ewerlöf thought an hour would not be sufficient in all cases. While in favour of agreeing time frames, he said parties must be realistic and vocal about the time needed. 

Most often the length of time allocated can be agreed through an "open discussion" with the arbitrators, for whose benefit the statement is intended, he said. However, he warned against asking for three hours when the other party only wants 45 minutes.

“Tribunals are not normally paid by the hour and already have full calendars. They have no interest in creating a long hearing,” he said.

The bare bones

"Does a skeleton argument or pre-hearing brief enhance an opening statement?" Hope wanted to know. Eliasson thought not. While it depends on the case, generally written memorial style pleadings presenting the facts of the case are “of very little value," he said. 

Hope noted English Commercial Court guidelines stating that skeleton arguments should ordinarily be no longer that 15 pages and admitted such brevity would be surprising in international arbitration. He called for lawyers to pay more attention to the advice. After all, opening statements are “about persuasion – we cannot annoy or bore." 

Speaking from the floor, US arbitrator and Columbia Law School professor George Bermann said that, if written arguments are filed, they should be more of a "road map" than a "skeleton", showing the “progression of argument, not just its components.”

“When writing an award as an arbitrator, I am writing a road map so parties can see how I have logically reached my decision," he explained. "It assists me if counsel provide me with a road map of their own – even though I won’t follow it all together.”

Play it again, Sam 

Lawyers often rely on a PowerPoint presentation or visual aids to "add colour" to opening submissions – but do these achieve that aim or suck the life from oral presentation? 

GAR Live organisers take the latter view and explicitly discourage speakers from using such aids. However, panellists thought they can be of assistance in opening statements – noting that understanding of complex, technical cases or construction cases can be enhanced by animations or 3D models. 

Giving his perspective as an arbitrator, Norburg said PowerPoint presentations can make submissions "more lively" but they should highlight only key points rather than peripheral details. Eliasson observed that many lawyers go too far, citing one occasion where his opposing co-counsel used 150 slides in the first 30 minutes.

“Often counsel think ‘I don’t have enough time to make all these points orally, I’ll shove them in a presentation’," Eliasson said. "It’s a bad idea." Instead, they should think about how to refine their cases. 

Then there are the more creative ways of making points. Hope referenced a chapter on the use of non-traditional media in GAR's recently published Guide To Advocacy, in which Debevoise & Plimpton partner Donald Donovan describes playing Casablanca to a tribunal to illustrate a point. 

Donovan’s opposing counsel had argued that the transactions the other side were trying to enforce were illegal, even though they themselves had been involved in making them. Donovan showed a casino scene from the 1942 film in which a French official declares “I’m shocked to find that gambling is going on here” – only for a croupier to emerge from a back room to hand him a wad of cash, saying “your winnings, sir”.

“It punctuated our point in Hollywood-dramatic, if untraditional fashion,” Donovan wrote, noting that his side went on to enjoy a complete win. 

But Hope warned that such ploys “can go one of two ways”. In one case he participated in, Russian counsel played a cartoon culminating in the obliteration, Monty Python-style, of the other side with a heavy object. This unsubtle clip failed to convince the tribunal.

Whether or not you make use of movie clips, panellists agreed that the key to making sure arbitrators don't switch off during opening statements is to tie arguments to the conclusions you want them to reach.

“You often hear a lot of facts, but no points,” Norburg said. 

A second time in Stockholm

Today’s GAR Live was the second in Stockholm, held once again at the Stockholm Chamber of Commerce, with Mannheimer Swartling and Vinge as headline sponsors.

The event was chaired by Hope and Jakob Ragnwaldh of Mannheimer. As well as the opening session on openings, it included a session on what makes a good arbitrator, a debate on the SCC rules for summary procedure and the usual Q&A symposium. Philip Capper of White & Case gave a lunchtime address. 

Roschier was a conference supporter, while MAQS was associate sponsor. Supporting organisations included the International Lawyers Network, Swedish Women in Arbitration Network, ArbitralWomen, Newton Arbitration, Young Arbitrators Sweden and the Russian Arbitration Association.

Upcoming GAR Live events will take place in London, Washington, DC, Singapore, Frankfurt and Istanbul. Details of all these can be found here. Today also saw an event in Miami, held in conjunction with GAR's sister publication Latin Lawyer.

 

"Your winnings, Sir", Casablanca, 1942

Image result for casino scene Casablanca your winnings sir

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