• Search

The Guide to Advocacy - Second Edition

Cultural Considerations in Advocacy: The UK Perspective

The incremental globalisation of international arbitration continues to blur the lines between national cultural approaches to advocacy. Historically, the complexion of an arbitration – and particularly of an arbitration hearing – may have been predominantly a function of the seat and the nationality of the arbitrators and counsel. The development of an international arbitration community and of transnational soft law, such as the various guidelines promulgated by the IBA, has tended towards the homogenisation of international arbitration. This progression is reflected by an increasing similarity of approach to advocacy, irrespective of the seat and the nationality of the arbitrators and counsel.

It would be cultural chauvinism to say that the best aspects of current international arbitration practice, and specifically the approach to advocacy, are those attributable to the UK, and vice versa. It would also not be my view. One of the strengths of international arbitration is that its slow march to uniformity has proven an opportunity to optimise practice by drawing on different national approaches. Cases involving arbitrators and counsel from different backgrounds have provided some of my most enlightening professional experiences, and mercifully few clashes of culture.

In the interests of accentuating the positives, below is a subjective summary of certain techniques that, when deployed, may go some way to epitomising the UK approach to advocacy in international arbitration, such as it is. These are no substitutes for the more detailed treatments of the subject of advocacy elsewhere in this book, which may be taken to elaborate upon the UK approach, particularly those on written advocacy by Thomas Sprange QC, on cross-examination of fact witnesses from the common law perspective by Stephen Jagusch QC, and on closing arguments by Hilary Heilbron QC and Klaus Reichert SC.[2] Any observation that the techniques below are not also followed by counsel practising in international arbitration from non-UK backgrounds is in the eye of the beholder. They are also not followed by UK-grown advocates as often as they might be. In my opinion, failure to follow them will lessen the quality of the advocacy.

Written advocacy

The UK approach to written advocacy in international arbitration still tends to favour a court-style process, with pleadings towards the start of the reference and skeletons prior to the main hearing, although fuller written memorials are becoming increasingly common. Whatever the procedure, the following non-exhaustive guidelines also provide some basis for sound written advocacy practice in international arbitration from the UK perspective.

  1. Get the opening line right. There is nothing so dreary as a skeleton argument that starts by saying ‘this is the skeleton argument of the claimant for the hearing of its claim against . . . ’ – the temptation to skim read until something of substance appears may prove irresistible to the arbitrator. The first paragraph should capture the tribunal’s imagination with a pithy description of why the case will interest them.[3] Ideally it might even outline in one sentence why the client’s case is right. For the same reasons, the conclusion should be at the start of the document (whether or not also at the end). Thus the tribunal will know its destination while reading.
  2. Short is sweet. Arbitrators are busy people. The ideal is that they read the written submissions carefully and thoroughly. The likelihood of this happening is increased if the submissions are succinct. The simplest way to avoid unnecessary length is to avoid repetition. It is an insult to the intelligence of the tribunal to think they need a submission repeated. No point gets better by its recurrence. If an argument has been crafted with enough care, it will be powerful without repetition. Prolix and repetitive submissions are the scourge of arbitrators – many will report as much – why start off by punishing those you are seeking to persuade?
  3. Know the tribunal. The extent to which the advocate’s submissions need to introduce a concept, develop a particular line of argument or explain an area of technical detail is a function of the tribunal’s expertise and background. If the tribunal have spent their careers dealing with oil and gas disputes, they will not need an explanation of the basics of a joint operating agreement or production sharing contract. If the arbitrators are retired High Court judges, they will not need extensive citation of authorities on the proper approach to the interpretation of an English law contract. If the tribunal is mixed, a more nuanced approach will have to be taken, but the different members of the panel can be relied upon to bring their different expertise to the decision-making process.
  4. Avoid adverbs and adjectives. Adverbs and adjectives are not tools of persuasion and can be counterproductive. When Stephen King wrote ‘the road to hell is paved with adverbs’[4] he might as well have been thinking of a turgid arbitration memorial. The problem with adverbs is that they tend to assertion rather than persuasion. Saying an argument is plainly right or wrong is no more persuasive than saying it is right or wrong, when what matters are the reasons that follow. The use of adjectives to heap scorn on an opponent’s case – ‘flimsy, weak, hopeless, egregious’ – also adds nothing to the debate. Use of adverbs and adjectives in this way can even be detrimental – it makes the case overblown and implies an insecurity, namely that the writer had to resort to such measures either for want of reasoning or owing to a lack of conviction in any reasoning. A strong argument does not require over-elaboration.
  5. Don’t allege bad faith unless it is both justifiable and a necessary part of your case. The ethical rules governing the conduct of barristers of England and Wales provide that a barrister must not make any allegation of fraud without ‘reasonably credible material which establishes an arguable case of fraud’.[5] Lord Bingham spoke of the need for ‘material of such a character as to lead responsible counsel to conclude that serious allegations could properly be based upon it’[6] and the same principle applies to any other allegations of serious misconduct. It is not just a matter of ethics and responsible counsel. Alleging bad faith can lead to a self-inflicted burden of proof that is higher than necessary in circumstances where the client’s case can often succeed whether or not there was bad faith by its counterparty. Alleging bad faith without good grounds can also harm the advocate’s credibility, which is hard won and easily lost.

Oral submissions

The UK approach often now involves strict time limits on oral opening submissions, with the tribunal keen to get on and commence hearing the evidence. Real argument may have to wait until closing submissions, but time can often still be tight, in particular, if the witness evidence has ended up overrunning. The following guidelines help maximise the efficient use of the time available for effective advocacy.

  1. Pick the battles . . . to win the war (or at least be more likely to do so). The successful advocate will know in advance the strengths and weaknesses of a case. Concessions are critical for credibility. If an advocate is arguing every point in the case, the patience of the tribunal may be tested such that it becomes unable, or even unwilling, to work out where the good point is hidden. It is the job of the advocate to pre-select the stronger arguments and focus thereon. There is no zero sum game here. The bad points don’t improve by being hidden in the crowd, but the good points do deteriorate from bad company.
  2. Test all the consequences of the arguments. A critical part of preparation is to stress-test the potential arguments. A superficially attractive argument may well falter at a hearing. This risk can be mitigated if sufficient time is spent challenging the arguments ahead of the hearing. In particular, the well-prepared advocate will pre-empt the counterarguments that might be raised by opponents or the tribunal. Assume that what can go wrong will go wrong. The argument may appear persuasive in isolation, but it must be considered in a broader context and any difficulties confronted openly. Problems with the argument cannot be ignored in the hope they will go away. This process allows the positive argument to be refined so that it can be insulated from counterarguments.
  3. Structure is everything. Numbered points are critical to a successful oral presentation. This is not only because they better enable the immediate digestion of the submissions by the tribunal. It is also because the oral submissions will probably be revisited by the tribunal. If this is by the tribunal looking at their handwritten notes, then the numbering will serve as their itinerary for their notes. If it is by the tribunal revisiting the transcripts, then the transcript can be helpfully punctuated and highlighted by free-standing sentences that say ‘Point one.’, ‘Point two.’, etc. With a carefully studied structure, the advocate may not need to resort to any demonstrative exhibits. The tribunal might then maximise its focus on the substance of the submissions and its interaction with the advocate. Such props rarely feature in the UK approach.
  4. Strive for verbal efficiency. Short sentences are clearer. Long sentences have a tendency to lose the attention of the listener who diverts to wandering when the speaker may arrive at the critical message. Again, think of the tribunal’s notes or the transcripts. There are no rules against single word sentences. ‘Damages’, followed by a pause, is a better introduction than ‘As my next topic I would like to move on to deal with the question of damages.’ Sixteen of those seventeen words are unnecessary. The transcribers may express their gratitude later. The same goes for other filler phrases, such as ‘The Claimant’s submission is that . . . ’. Unnecessary verbiage cannot be excused on the basis that the advocate is playing for time to think of an answer to a tribunal question. If time is required, it is better to ask for a moment to reflect, in silence, before answering the question.
  5. It’s not about you. The case is bigger than the advocate. The advocate is not there to be memorable, or to carve out a reputation, but only to try and win the case. What the arbitrators want to hear – for example, answers to their questions – is as important as what the advocate otherwise wishes to say. Charisma does not go amiss and a tribunal will prefer listening to mellifluous submissions. But ultimately, international arbitration tribunals will be persuaded by content and not by force of personality. This applies equally in the case of witness handling, to which I now turn.

Witness handling

The UK approach to advocacy encompasses a long-standing tradition of witness handling, particularly cross-examination. While the art of cross-examination is beyond the scope of this chapter, below is some brief elaboration on certain of the ‘Don’ts’ of cross-examination, which might be said broadly to reflect a UK modus operandi.

  1. Don’t feel inhibited by the direct evidence. This is where the UK approach diverges from – so it is understood – a common approach in the United States. As a matter of UK practice, if a witness has relevant evidence to give on a particular issue, the party tendering that witness cannot avoid questions on that issue simply by choosing not to deal with it in the evidence-in-chief, usually the witness statement. Once the witness has been tendered, the witness is open to be asked about anything material. The only way to avoid that consequence is for the party not to tender the witness at all. Insofar as the object of the exercise is to resolve the disputed facts, the case for the UK approach is grounded on considering the widest available body of evidence. Yet the object of the cross-examiner’s exercise is to resolve the facts in favour of the client of the cross-examiner. The cross-examiner must beware the unguarded questions of the tribunal, which may follow once an issue has been aired.
  2. Do not use cross-examination to argue the case. It is rare that a case can be won by the end of a particular witness’s cross-examination. More often, success results from the marriage of the facts, including those established in cross-examination, with the law in closing submissions. The witness need not understand why the answers matter one way or another – indeed, it may be better if the witness does not. As soon as the witness has given an answer that is good enough for this purpose, the cross-examiner should stop or change topic. The saying ‘Better is the enemy of good’ – attributed to Voltaire – applies to cross-examination. The question too far is a common mistake. It is the question that tries to make a good answer better, but can often have the reverse effect.
  3. Do not bully the witness. Manners maketh the advocate. The witness is more likely to give up the desired answers to an amiable inquisitor than to a belligerent combatant. Suppose, for example, the witness fails to answer a question. The instinct may be to hector the witness. But a more effective approach is to ask the question again, and perhaps a third time at most. If the witness re-offends, a courteous ‘thank you’, followed by a glance at the tribunal to pre-empt the later submission, is all that is required. A witness can be controlled with politeness as much as with severity. Such civility is all the more important in international arbitration, which is premised on the consensual involvement of all the participants – the tribunal, the parties and the witnesses.
  4. Minimise interruptions of an opponent. The advocate should ask: Is the matter really one that cannot continue uninterrupted until it is my turn to speak? Overuse of interruptions can irritate the tribunal and lessen the advocate’s credibility. The over-intervening advocate may find that the tribunal is less interested when a genuine cause for complaint arises. That said, the UK approach could take a leaf out of the US playbook when it comes to the delivery of interruptions. The inefficient ‘I hesitate to interrupt my learned friend, but I have to object to . . .’ could well be replaced by an introductory ‘Objection’, followed by a clipped explanation. The tribunal might equally respond with an efficient ‘Sustained’ or ‘Overruled’ followed by a reason if necessary.
  5. Don’t allege a witness is lying unless it is both justified and absolutely necessary. This is a narrower reflection of the rule not to allege bad faith unless justifiable and necessary. It is common for an opposing witness to say something self-serving and inconsistent with a fact that must be proven to make good the client’s case. This may trigger a temptation to allege that the witness is being dishonest. Such temptation should be resisted in the vast majority of cases. It will often suffice to contend that the witness is mistaken. This can be achieved through a combination of effective cross-examination to cast doubt on the witness’s memory and submission as to why the witness is probably mistaken.[7] Such a submission is also more likely to succeed than the more serious allegation – arbitration tribunals are rightly loath to find a witness to have been dishonest where there is an alternative way out.

Conclusion

The biodiversity of international arbitrators may mean that there are no universally correct approaches to advocacy. The handful of suggestions above are only some general indications of the UK approach that can be considered a starting point. The devil is in the detail.

Notes


[1]      David Lewis QC is a barrister at 20 Essex Street Chambers, London and Singapore.

[2]      See Chapters 2, 7 and 9 above.

[3]      This mirrors the advice of Jonathan Sumption QC – now Lord Sumption JSC – when delivering a lecture to the South Eastern Circuit of the Bar of England and Wales on 29 September 2009 on the subject of Appellate Advocacy. It is equally applicable to arbitration. He also commented that ‘Appellate Judges are bigger than you and they hunt in packs.’ Whether that is equally applicable may depend upon the particular tribunal.

[4]      Stephen King – On Writing: a Memoir of the Craft, Simon & Schuster, 2010, p. 125.

[5]      Bar Standards Board Handbook, 3rd Ed., April 2017, Rule C9.2.c.

[6]      Medcalf v. Mardell and Others [2002] 1 AC 120 at [22].

[7]      The unreliability of memory was recently re-emphasised, including by reference to psychological research, in the judgment of Leggatt J in Mr Jeffrey Ross Blue v. Mr Michael James Wallace Ashley [2017] EWHC 1928 (Comm.) at [66]-[69]. Perhaps the continental European system, with its limited reliance on oral evidence, knew this all along?