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The Guide to Advocacy - Second Edition

Tips for Second-Chairing an Oral Argument

Effective oral argument requires the impossible – that counsel simultaneously speak, listen, think, remain flexible, stay on track, read an outline or script, search for citations, prepare responses to questions, watch the clock, triage, consult with co-counsel, make judgement calls, watch the arbitrators and opposing counsel, take notes for later, worry about the translations, remember all details of all documents, wage war on Murphy’s Law,[2] and remember to breathe. In the absence of a multitasking superpower, there is no way for a single person to handle it all.

Enter the ‘second chair’.

The ‘second chair’ is the team member who sits next to the speaker (or ‘first chair’) and serves as a second pair of eyes, a second pair of ears, a second pair of hands and second-in-command. While the first chair speaks, the second chair looks, listens and troubleshoots. He locates citations and drafts responses to questions. He watches the clock and decides what arguments can be jettisoned. He pours water and clicks through slides. He intercepts notes from other team members and determines what to pass on to the speaker. His art is complex but his job is simple: let the speaker focus on speaking, by handling all the rest. Below are some tips on how to do this job well.

Know the case

The best second chair knows everything – from exhibit numbers, to what time the hearing starts each day, to what the first chair should say in response to anticipated questions, to the facts of analogous cases, to the dates of key events, to your opponent’s best argument, to the weaknesses in your claims. Here’s how to become the world’s leading expert on your case.

First, in the weeks leading up to the hearing, reread all of the documents that might possibly be relevant. Reread the pleadings, the witness statements and expert reports, the key exhibits and authorities, and the procedural orders. Though you undoubtedly have read these documents many times before – and perhaps contributed to drafting some of them – it is important to have everything fresh in your mind.

Second, think carefully about all of the documents that you have read. What are your side’s strengths and weaknesses? What are your opponent’s? Where can your opponent poke holes in your case? Do you have a full understanding of the evidence in the record? Do you know what evidence is not in the record? Given what you have read, which arguments do you expect your opponent to emphasise? What questions do you expect the arbitrators to ask? What questions do you expect your first chair to ask?

Third, bear in mind that, to answer all of the questions that likely will come your way, you do not need to remember every piece of information you have consumed; you just need to be able to quickly locate and process that information. In the weeks leading up to the hearing, do whatever you can to make things easier for yourself on hearing day. Draft summaries of the key arguments on each side, annotated with citations to specific passages of the pleadings. Create a list of your opponent’s admissions. Compile a detailed chronology from the exhibits and witness testimony. Draft ‘cheat sheets’ for important jurisprudence, summarising the facts and explaining how each case relates to the matter at hand. Compile a list of the questions that you expect the arbitrators (or your first chair) to ask, and draft potential responses thereto. Make a list of any hearing-related rules that appear in the procedural orders. In short, do whatever legwork you can now to save time and effort in the future.

Finally, make sure you can deploy your knowledge when it really counts. Save all of your summaries, lists and cheat sheets in a folder on your desktop. (Assume that Murphy’s Law applies, that the internet accordingly will go out and that you will not have access to your law firm’s network.) Put copies of the pleadings, procedural orders, and exhibit and authority indices in the folder as well. Print out two copies of any document that the first chair might have to read aloud (one copy for her and one for you). It is much easier to hand the first chair a piece of paper than to hand over your laptop.

Know your first chair

Much as ‘beauty’ depends on the beholder, the qualities of a good second chair typically depend on the first chair and what she wants and needs. What is helpful to one first chair might be distracting to another. Thus, when assigned to be second chair, you must determine what type of second chair you need to become. It is time to get to know your first chair.

Below is a survey of some of the different personality types you may encounter. The characters introduced below are rough caricatures – composites of counsel we have worked with, witnessed, or imagined. Nevertheless, knowing how to assist these different ‘types’ of advocates will form a foundation for the other tips that proceed below.

The Parachutist Advocate

Many of today’s top international arbitration practices possess one or more industry-recognised expert advocates, who often ‘parachute’ into a case as a hearing approaches, acquaint themselves in the details of the matter and the issues to be argued and examined, perform their advocacy duties, and then depart until the next hearing in the case. In London, this advocate is often a Queen’s Counsel. Not all Parachutist Advocates are the same. Some are uninvolved in the day-to-day conduct of the case, but put their names on the written submissions, to lend them gravitas and set the stage for the advocate’s appearance at oral hearings. Others maintain a running familiarity with case developments and lend their strategic experience at critical junctures. In any case, when the time comes to prepare for the hearing, the Parachutist Advocate will need significant, in-depth familiarisation with the evidentiary record as set out below.

The Collaborator Advocate

The Collaborator Advocate tends to think of her oral submissions and witness examinations as a team effort. Though she alone will be speaking at the hearing, she will prepare her submissions and examinations in collaboration with the second chair and perhaps the wider hearing team. This often involves long brainstorming sessions where the lead advocate maps out her approach, expecting team members to contribute points to be made and documents to be relied upon.

The DIY Advocate

The DIY Advocate tends to prepare her submissions and witness examinations on her own, seeking little input from team members. This approach is typically reflective of long-standing working habits that the advocate has adopted over the course of her career. These advocates typically need to feel a personal mastery of the evidentiary record to comfortably carry out their advocacy duties. As discussed below, serving as a second chair to a DIY Advocate can present challenges.

Prepare your first chair

Preparing the first chair is the most important task that a second chair has, both in the time leading up to the hearing and during the hearing itself (particularly if the first chair is a Parachutist Advocate). Although the precise nature of the task will vary by first chair, here is a general sense of what you can expect to do.

Select the appropriate read-in materials

Although the tribunal will treat the first chair as if she were an expert on all of the submissions, witness statements, expert reports, exhibits and legal authorities, chances are that, like you, she will need some time to become an expert. Unlike you, however, she will not have the time or the budget to devote to reading all the materials in full. Instead, the first chair likely will read all of the relevant materials and turn to you for a quick briefing on any materials that, in the interest of time, she has not read. As the hearing approaches, you should carefully select the materials that the first chair should review. Whereas the second chair’s job often requires thousands of pages of reading, the first chair should have to read only what is essential for delivering effective submissions and for use in witness examination.

Whittling down a vast record to something more manageable is helpful to each of the advocate personalities identified above. Obviously, the synthesis will be necessary for the Parachutist Advocate, who typically has only a short window in which to prepare. But the Collaborator Advocate will also need a base understanding from which to steer group discussion, and even the DIY Advocate will appreciate your efforts to save her time and focus her attention (so long as you stand ready to explain how you whittled the record down). Some first chairs may ask you to feed them documents drip by drip, giving them only what they need to know to focus on a particular task (e.g., preparing the opening statement, drafting a cross-examination outline). In these instances, make sure that the first chair begins with the written submissions, as these provide the best picture of the principal issues in dispute. Then identify the other documents that provide additional context: witness statements, expert reports, exhibits and authorities. Where possible, share your ‘cheat sheets’ and summaries with the first chair. If it is important that she review a particular document in its entirety, however, do not be afraid to tell her that is the case.

Take an active role in the preparation of witnesses and experts

In many international arbitration proceedings, it is permissible for advocates to ‘prepare’ their side’s witnesses for examination, by posing practice questions to them. Some first chairs (like the DIY Advocate) may take an active role in this. In many instances, however, the first chair’s schedule will not allow her to take part in the witness preparation. You should step in not only for the sake of the witness, but also for the sake of the first chair, who needs a candid assessment of how the witness will likely perform.

Prepare the cross-examination outlines

In addition to helping the first chair prepare for examination of your own witnesses, you also should help her prepare to examine the other side’s. In most instances, the first chair will depend on you to identify the key points that should be made and to prepare an initial draft of the cross-examination script. The Parachutist Advocate is likely to rely on this legwork substantially. The Collaborator Advocate, too, will use the preparation as a basis for brainstorming. Even the DIY Advocate – who prefers to work alone – can benefit from an extra perspective on how to approach the witness.

Working with the DIY Advocate in the lead-up to a hearing can be perplexing. One might think, ‘If she wants to handle things herself, what am I supposed to do?’ You may feel left with little to do as the first chair secludes herself with the case file, plotting out her submissions and cross-examinations. But even to the DIY Advocate your help is still valuable. Offer to cite-check, proofread, time or moot draft presentations and examinations – taking time to review the drafts for substance in the process. The DIY Advocate, no matter how talented, is not infallible and will at times focus myopically on some issues to the exclusion of others. It is in those moments that you can provide much-needed perspective. Additionally, you should, to the extent possible, use this opportunity to observe the DIY Advocate’s approach and store away any useful habits and tactics for use in your own advocacy in subsequent cases.

Identify and attack case weaknesses

In the lead-up to hearing, the lead advocate’s focus will be on the strengths of her client’s position. Therefore, it will often fall to the second chair to make sure that the lead advocate is briefed on all of the factual and legal issues on which the other side has the better of the arguments. This can often be stressful – in the hearing preparation phase, some arbitration teams and lead advocates can often gee themselves up by focusing largely on the positive aspects of their positions. A state of groupthink can take hold. A good second chair will take care to maintain a position of equanimity and identify areas of vulnerability. It is not enough, however, to simply be contrarian. As the person with mastery of the case file, it is for you to assist the first chair in finding ways to shore up the case weaknesses. Find pieces of mitigating factual evidence, distinguish unhelpful authorities, and – when it makes better sense to admit and accept the weakness – find some way to explain why the weakness ultimately does not matter.

Be the first chair’s eyes and ears

To do her job effectively, the first chair needs to maintain a myopic focus on the submissions that she is to give and the examinations she is to undertake. To do this, she likely will need to keep a certain distance from the hive of activity that is the team’s ‘war room’ and the constant preparation going on around her. She also will need to excuse herself early to get sufficient sleep. To help the first chair keep her focus where it should be, you will have to take on more project- and team-management responsibilities than usual. You also must pick up on any verbal and non-verbal signals from the tribunal which the lead advocate may not be able to see while performing her advocacy duties. In short, you must be the lead advocate’s eyes and ears.

Mind the tribunal

Tribunals typically give a number of cues – verbal or non-verbal – about what they find interesting, important or, frankly, boring. Keep track of these cues, in case the first chair has missed them; they offer real-time feedback on her performance. It is part of your job to alert the first chair to these cues. As discussed below, how to do this depends on the first chair – you might hand her a note, whisper a brief remark to her, or inform her of a particular observation during a break.

Mind the team

The preparation for, and the conduct of, an evidentiary hearing can be a particularly stressful period. Tensions run high and morale can plummet. First chairs are often also the team leaders; it is up to them to manage the team. However, because the first chair tends to focus on her advocacy duties, she may be unaware of friction among team members or of poor morale. She also may not have the time to intervene in every petty squabble precipitated by sleep-deprived junior lawyers. As second chair, you should therefore take a more hands-on approach to managing the team and keep a constant measure of the team’s collective morale. Bring any serious problems to the lead advocate’s attention before relations become overly fraught.

But keep in mind also that evidentiary hearings should be fun. Do your best to keep the proceedings light. Everyone will be aware of the seriousness of the undertaking, but an opportune joke, a team meal and a healthy sense of self-deprecation can make a stressful situation far more bearable. And remember that the team members are, first and foremost, people; modern science has not yet invented arbitration robots. Though it might be easy to forget, life continues outside the hearing room. Team members may be dealing with pregnant spouses, sick family members or personal issues in addition to their work responsibilities. Strive to treat your team members the way that you would like to be treated in those circumstances.

Mind the client

As with your team members, your client – whether a party himself or just a representative (like in-house counsel or a government minister) – typically will have needs that must be serviced during the course of the hearing. Although it is often the first chair who works most closely with the client, when the first chair’s attention turns to advocacy, client service must be maintained. A good second chair will pick up the slack in this regard. He will act as a sounding board for the client’s suggestions, concerns and complaints. He will also explain hearing processes to the client, decode the arbitrators’ cues and evaluate the witnesses’ performances. He will take the client to dinner. Importantly, he will act as a gatekeeper between the client and the lead advocate. While some lead advocates are skilled at simultaneously handling clients and preparing for a hearing, this is not always the case. Where it is not, the second chair plays an important role in listening to the client’s suggestions and complaints and filtering the important, helpful and necessary information for the lead advocate.

Mind the witness

As a hearing approaches, witnesses often begin to grow nervous about giving their evidence and, in particular, facing cross-examination. The lead advocate usually cannot dedicate herself to calming any nerves, except for perhaps the most important witnesses (or clients who also serve as witnesses). The second chair, then, must take up the task of providing comfort to nervous witnesses and ensuring that they remember their training (subject to the applicable ethical rules). This usually will involve further preparation sessions and, at times, arranging social engagements to take the witness’s mind off of matters. Of course, there may be times where it is necessary for the lead advocate to intervene. Witnesses can have fits of pique, they can begin to doubt their own evidence (even if it is objectively true) and they can even threaten to refuse to give their evidence. In these more extreme circumstances, as part of your triage and gatekeeping responsibilities, you should make the lead advocate aware of the witness’s particular misgivings and ask her to speak with the witness if necessary.

Mind the opposition

Although you have significant responsibilities in aiding the lead advocate during submissions and cross-examinations, you also are the best placed to monitor the behaviour and reactions of the opposition. While most lawyers aspire to maintain strong ‘poker faces’ during the course of an evidentiary hearing, the opposition’s intended stoic façade is frequently not sustained. Sometimes a particular reaction can provide insight into weaknesses in the other side’s case, or alert you to an imminent objection. Although you should not read too much into the outward behaviour of opposing counsel, there are times where a reaction or a pattern of conduct can allow your team to change tack, or to focus additional questioning on issues that appear to be a sensitive area for opposing counsel.

Be the gatekeeper

Given the number of tasks that the first chair has on her plate – and the sheer excitement of ‘doing battle’ – at hearings, people are always volunteering to help. On the one hand, help is constructive. When it comes to thinking through a problem, looking for evidence or listening for admissions, two minds (or pairs of eyes or ears) generally are better than one. On the other hand, help can be harmful – for example, when too many people pass notes to the speaker (or worse, pass incorrect or contradicting notes). As second chair, your job is to make sure that help offered to the speaker actually is helpful. Sometimes, this means defending the speaker from well-intentioned colleagues who pass distracting notes on minor issues or at inopportune times.

As a junior associate, you might think it awkward – or insubordinate – to decline to pass on a note from the client, or from a more senior attorney. But as the second chair, you are the one best placed (and, indeed, authorised) to decide when to distract the speaker with a note. If you are at all concerned how to handle a particular situation, discuss the issue with your first chair in advance. She may tell you to hold certain notes, but to pass others through, or to hold all substantive notes until a break. Or she may tell you to use your judgment and smooth things over with your colleagues if you decide not to pass on a note. But do not simply sit back and allow your first chair to be distracted. Protect her ability to focus as best you can.

Communicate effectively with the first chair mid-presentation

This is one of the most difficult – and important – parts of being a second chair. If you cannot relay information to the first chair in a way that she is able to understand, assimilate and act upon without expending too much effort – or if you relay the information in a way that is distracting – then it does not matter how well you know the case, or how desperately you want to save the speaker from a difficult question. Unfortunately, learning to communicate with a speaker mid-presentation takes a bit of trial and error. (And preferences often tend to differ.) In general, however, here are some things to keep in mind:

  • Unless instructed otherwise, expect to communicate with the speaker by handwritten note. There may be some instances where the speaker turns off her microphone to consult with you, but these will be rare. Never send messages via email or instant message; few advocates have the wherewithal to check those media while speaking (and there is always a possibility that your email or instant message could pop up on the presentation screen, for the entire room to see).
  • Write legibly. Do not use shorthand or abbreviations unless you are absolutely certain that the speaker will understand.
  • Err on the side of providing more detail than less. Remember, you are the leading expert on the issues for which you second-chair. You might understand that ‘wrong interpretation, see Case XYZ’ is shorthand for ‘this particular treaty cannot be interpreted that way, as the XYZ tribunal held, because of A, B and C.’ But the speaker, who has spent less time immersed in all of the research (and who likely has been trying to answer the question on her own, during the time it took for you to scribble out your note), may not follow. Write in full sentences where possible.
  • Wait to pass notes until the speaker has finished a thought and is moving on to a new thought, issue or even slide. In most instances, this is the least distracting time to pass a note.
  • Establish a method for distinguishing notes intended to be read aloud from notes intended just for the speaker’s information.
  • Decide in advance how time will be tabulated: ‘30 minutes elapsed?’ ‘30 minutes left?’ Ask the speaker how much time she will need to make a barebones conclusion in the event she is running out of time. Guard that amount of time.
  • In the event that the speaker needs to jettison some arguments (and you have agreed with the speaker in advance that you will walk her through this if necessary), swap the speaker’s script or notes with a marked-up copy.
  • Watch how the speaker handles your interactions and adjust as necessary. Hearings can be long, and counsel frequently must give presentations on very little sleep. What may be perfectly fine for the speaker when well rested could be distracting after an all-night work session. If the speaker tells you that she will not be able to handle any substantive notes, you should listen.

Expect technology to fail

Over the past decade, it has become quite common for counsel to rely on tools such as PowerPoint and Prezi when making an oral argument. Though useful, such tools can also lead to stress and frustration when they malfunction. To avoid that stress and frustration, you should first do everything possible to avoid malfunction altogether. Test and practice using the technology in advance, in as realistic a setting as possible. Make sure you have all of the necessary cords, adapters and accessories (e.g., a clicker). Bring batteries. Save documents to your hard drive in case the internet goes out. Learn how to fix – or know whom you should call to fix – potential mid-presentation problems. Plan for Murphy’s Law and do your best to defeat it. And, of course, have a back-up plan in case Murphy’s Law prevails. What will you do if there is no internet? If you have internet but cannot connect to your firm’s network and access documents? If the vendor cannot print copies of your presentation? If your presentation cannot play? If the trial graphics vendor does not show up on time? How will this affect the first chair? How should she handle these situations? (Remember: as second chair, you should be the one with all the answers.)

Find a good third chair

By this point, you may be daunted by the volume and importance of the responsibilities that a good second chair must execute. This is for good reason. Though the second chair’s role may not be as visible as that of the first chair, he is the engine that propels the hearing team vehicle. Depending on the economics or the relative complexity of the case, you might be doing everything identified above on your own. Where the case allows, however, you should look to involve a more junior lawyer to assist you.

Just as the typical second chair aspires to one day take on the lead advocate’s role, the right profile for a ‘third chair’ is a lawyer who aspires to serve as second chair. The ideal candidate is one who looks to have the capacity to take on the responsibilities outlined above. He will be a person with a strong work ethic, ability to work under pressure and withstand stress and, ideally, maintain a smile. Perhaps most importantly, in addition to the tasks that he originally had been assigned (for example, preparation of certain witnesses, assistance with cross-examination outlines), he should look to take burdens away from the second chair. He should also anticipate your needs and serve a similar gatekeeping and triage function in your respect as you perform for the lead advocate.

Preferably, this person should be an ‘arbitration lifer’. Hearings are where a team distinguishes itself. Superbly written submissions frequently can be laid bare by an arbitration team’s lacklustre performance in a hearing, its case exposed by poor cross-examinations or unconvincing and poorly prepared witnesses. Conversely, a case with bad facts and bad law can be salvaged by a team’s commanding performance in the hearing room. But to accomplish this, the team must have a collective passion for presenting evidence and attacking weaknesses in the other side’s case. This requires long hours, thinking on one’s feet, overcoming any interpersonal tension, and – at the junior level – a great deal of thankless and often mundane tasks. To cope with those conditions requires someone dedicated to the practice of international arbitration. When selecting a ‘third chair,’ the preference is for junior team members with a keen interest in pursuing a career in the field. This advice is particularly relevant in the context of American arbitration practices, where the junior lawyers often split their time with other practice groups and are testing the waters to determine if this niche area of the law is for them. To identify a ‘third chair’ who will provide the kind of support needed in the circumstances, look for someone who, no matter the assignment – or amount of sleep on which he operates – is still striving cheerfully to help you out.

Notes


[1]      Mallory Silberman is an associate at Arnold & Porter Kaye Scholer LLP. Timothy L Foden is a senior associate at Quinn Emanuel Urquhart & Sullivan LLP.

[2]      Murphy’s Law is an epigram typically stated as: ‘Whatever can go wrong, will go wrong.’