This chapter features text boxes by the following arbitrators:
The use of technology in the arbitral hearing room tends to be a divisive topic among practitioners of international arbitration. The authors have met many a practitioner who has displayed either a disdain or even fear of the most rudimentary of technologies, such as PowerPoint. This fear can be borne out of the knowledge that assembling any demonstrative can be a time-consuming process during a phase in the case – hearing preparation – when there is already so much to do. Disdain can emanate from the fact that a slick presentation can often gloss over the substance of the dispute.
Ultimately, however, both fear and disdain can be overcome through applying the various technologies available in a judicious and succinct manner. Below, the authors set out, among other things, a background to hearing-room technology, the central technologies that can be used to advance one’s case, and the psychological impact those technologies can have on the arbitrators.
The authors provide two different perspectives throughout this piece. Whitley Tiller is a litigation consultant who has provided presentational support to counsel teams for dozens of international arbitrations under all applicable rules, including numerous investment treaty arbitrations. Below, she provides descriptions of various information technologies that can be deployed in support of an arbitration counsel team’s case, the existence of which many arbitration practitioners remain entirely unaware. With a background in cognitive neuropsychology, Whitley also discusses the impact that these technologies can have on their audience – the arbitrators.
In the text boxes, Timothy Foden provides the practitioner’s perspective. Over his years representing clients in arbitration hearings, Tim has come to embrace, begrudgingly, hearing-room technology and explains in the piece that follows both its upsides and downsides.
Aim for the ‘technology’ to disappear
When deployed effectively, technology in arbitral hearings can yield improvements in two main areas: efficiency and advocacy. The first has largely been realised. For instance, cross-examinations and oral submissions have been streamlined, as large bundles have been replaced with digital technology that offers the ability to call up and then zoom in on the relevant passage of a particular exhibit almost instantaneously. The role of technology in advocacy, however, remains more of an art than a science.
Approaches to technology vary as widely as approaches to advocacy. The use of PowerPoint presentations is a ready example, with some accomplished advocates relying on hundreds of dense slides, and other equally distinguished counsel adopting a far more minimalist approach.
In my experience, less is more, and more is often counterproductive. During a hearing in which the tribunal has likely been inundated with ‘huge, frightening written memorials’ (to quote Toby Landau’s 2011 keynote address at the 2011 ITA Workshop), the main task of an advocate is to separate the wheat from the chaff and to focus the tribunal on the dispositive elements of the client’s case.
The number of slides should reflect this. And because it is exceedingly difficult for an arbitrator to read a slide while listening to argument, care should be taken to simplify the slides and to pause the presentation while they are being reviewed. Whatever an advocate’s preferred style, the aspiration should be to introduce technology more seamlessly into argument and examination, and this requires substantial preparatory time. As counsel and hearing teams continue to become more experienced and adept with technology, it paradoxically may be that tribunals will become less aware of its presence.– Luke Sobota, Three Crowns
Understanding the psychology of visuals – why demonstratives
Close your eyes for just a second and think of your favourite novel. What is the first thought that comes to mind? Probably not the publisher’s name, the writing style of the author, or even the genre. More likely what comes to mind are the characters. When you close your eyes, you can see them. Your brain has converted written text into a visual format. The power of images is not a new concept. Early humans used cave paintings to communicate ideas visually. Throughout history, we have learned language through pictures. A child living in a city may have never seen a cow, but will understand the word and the meaning behind it because she has seen a picture. Pictures bring clarity to the confusion that language sometimes creates. Visual communication is an incredibly effective tool used to elicit emotion in nearly all factions of life.
So why are demonstratives – the graphical depiction of evidence – so infrequently deployed in international arbitration hearings? In this chapter, we will discuss the value and impact of effective graphic communication in arbitration oral advocacy.
The practitioner’s perspective: How I slowly learned to like tech
‘While I have not been practising long enough to remember the days of the overhead projector in the litigation context, my earlier years in the arbitration hearing room seem Neolithic compared to the smooth and sophisticated visual displays we have today. I remember spending hours agonising over putting a simple profit and loss sheet on a piece of foam board. Our efforts were not only hampered by our own lack of tech savvy, but also the typical vacillations of the lead partner and a lack of suitable graphic or printing facilities in the particular jurisdiction. As one of the junior lawyers on the team, of course it fell on me to both read the mind of the lead partner and make a reproduction company that worked past 5pm materialise out of thin air. Experiences such as this one put me off hearing-room technology for some time.
A similar predicament presented itself with my earlier stabs at PowerPoint. Operating on a shoestring budget for an ICSID annulment case, I was tasked with translating the lead advocate’s vague case theory metaphor of ‘collapsing dominoes’ into a clear graphic. This presented two problems – while I toiled away at creating animated, coloured text boxes, the lead advocate abandoned his own metaphorical approach to the issue as ‘silly’, without telling me of course, and I was terribly artistically challenged. Needless to say, this experience coloured my view of PowerPoint for some time.
It was not until some years later when a case budget allowed for the engagement of litigation consultants did I learn to stop worrying and love the PowerPoint demonstrative, which I return to below.’
Images are expectations
We live in a visual world. One might say that we are image-obsessed. Visuals and technology are becoming expectations, not luxuries. As soon as we open our eyes upon waking, we are flooded with images. For many, the first thing they do in the morning is look at various images in various formats on their smartphone. There are photos in the train stations on our daily commute. We turn on the TV because we want to see the news rather than read it. We take photos of things we want to remember, and send photos as a means of communication.
Growing global use
We are living in a world that is not only visual, but also fast-paced. In this fast-paced world, human attention tends to drift, and instant gratification is the norm. Technology both fuels and satisfies this need for immediate visual input. This need does not end at the threshold to the arbitral hearing room.
Before discussing the means by which the need for visual stimuli permeates the hearing room, it is helpful to trace the recent history of demonstratives in the litigation context.
Modern hearing-room technologies have their roots in American jury trials. In a system where juries hear civil suits, the need to convey information to the laypeople of a jury took on increased urgency in the era of high-value patent and antitrust litigation. In 1999, the Judicial Conference of the United States concluded that ‘courtroom technologies constitute a significant enhancement to the fact-finding mission of the federal courts,’ and urged that such technologies ‘be considered necessary and integral parts of courtrooms undergoing construction or major renovation’.
Despite the recognition of the need for technology in American courtrooms nearly 20 years ago, many courtrooms still require a ‘set-up’. This means that the parties must hire an equipment vendor to go into the courtroom ahead of the trial date and set up rented equipment such as projectors and monitors, while conforming to the limits imposed by the courthouse staff and security requirements. Regardless of the amount of effort, coordination and cost that is required for these set-ups, the use of technology remains the norm in US courtrooms.
In arbitration venues across the globe, most of the hard work has already been done. These facilities are equipped with modern technology, and far more deferential to the instant hearing than a courtroom running a long docket. In most cases, this means simply plugging in a laptop in order to display presentation materials. Technology has become part of the conversation in international arbitration, with venues promoting their plug-and-play technologies for ease of use.
The development of better software, the rise of an industry dedicated to technology consulting, and the modernisation of hearing venues has led to commonplace functionality and technological progress among arbitration practitioners. It is no longer uncommon for the screens to be turned on, and used successfully, throughout a hearing.
The use of technology in the hearing room
Persuasion is a skill used in all human interaction. In the legal world, it is the reason for interaction: we tell stories using evidence and rhetoric to convince decision makers to decide in our client’s favour.
We see not only with our eyes, but also with our brains. Our brains use our past experiences to fill in gaps in information. Arbitrators, like any audience, seek clarity and understanding, which is often complicated by diverse cultural, language and regional perspectives. Further, arbitrators often begin to form opinions of the case very early in the proceedings, filling in the gaps of information based on previous case experience and their own perspectives. The use of a visual presentation not only provides an opportunity to heighten the tribunal’s interest, but to frame the story, make the arbitrators want to hear more about your case and process the evidence in your favour.
Courtroom technology has come a long way since the days of the overhead projector and foam boards. Technology today is not a bulky distraction, but rather, can make for a more persuasive presentation. What is more, the application of this technology is not nearly as daunting as it once was – it can be deployed with relative ease and at lesser expense. Below, we will focus on three areas specifically for use in international arbitrations: e-briefs (eliminating the need for hard-copy submissions), presentation technology and technology consultants (for managing documents during the hearing), and persuasive presentations (the visual piece).
The practitioner’s perspective: E-briefs
‘In my experience, an increasing number of tribunals have requested hyperlinked submission and, in particular, witness statements. Such interactive pleadings are certainly helpful, but I suspect that they are requested by tribunals more out of the appeal of convenience than out of necessity. This is for two reasons. First, I have found that e-briefs often contain many broken links or incorrect links. This makes sense, because junior counsel in particular will know that the vendor is provided with the submission on very short notice and given a very short turnaround time to code and produce the e-brief. This, of course, leads to mistakes, but is a creature of last-minute pushes to meet deadlines. The second reason is that I find that arbitrators still love their paper. I empathise with this continued affinity with the printed paper as I tend to process and remember words on the page better than words on the screen. I have yet to see a tribunal member rely entirely on a tablet during a hearing, though I may be in the minority in this regard. Even in cases where the tribunal has requested e-briefs, I still tend to see the arbitrators working from printed bundles during the evidentiary hearing.’
One does not need to wait until the hearing phase to persuasively apply technology. A first step in conducting a paper-free hearing is to begin using available technology solutions from the initial pleading. An e-brief is an interactive version of your submission. Rather than searching through hundreds of PDF files or boxes of paper, an e-brief enables the tribunal to click on hyperlinks from the cites in your brief to all the referenced exhibits, legal authorities, witness statements and expert reports in an easily accessible digital format. The e-brief is becoming more popular because of its ease of navigation, precise linking, and accessibility via any computer or tablet. E-briefs provide the perfect affordable solution for tribunal members to easily review all submissions from the statement of claim through post-hearing briefs in a joined-up manner. In short, these submissions provide the arbitrator an opportunity to examine the submissions and evidence in a more holistic fashion.
Presentation technology and technology consultants
Commonly referred to as the ‘hot-seat’ operator, technology (or presentation) consultants are responsible for pulling the exhibits up on the screen in real time. The bundle, in electronic format containing PDF files, and possibly other types of files, must be arranged impeccably.
Technology operators create an electronic bundle of all exhibits for use in real time on the screen in the hearing room using evidence presentation software suited for the task. The use of such software yields quick access to supporting information and allows for the repetition of key points, which increases retention. Documents are presented full page of a black screen without menu bars and ribbons found in office software. Document treatments, such as zoom in, call-out (inset), highlighter and underline are used to focus the viewer on particular content. The advent of widescreen display has made it possible to display full pages side-by-side, to compare documents or read carry-over paragraphs. Exhibits, not limited to PDF documents, can be displayed natively, which means that a Microsoft Excel file can be shown in Excel, instead of the process of printing it and showing a spreadsheet across multiple sheets of paper. Certain non-printable items like large spreadsheets, animated slides and videos can present challenges for maintaining a record, as these do not print on paper as they have been displayed on the screen. Such situations ought to be brought to the attention of the tribunal particularly when the native format contains information to be relied upon.
The practitioner’s perspective: Electronic bundles
‘I had never used an electronic bundle until an ICSID hearing approximately two years ago. It streamlined the cross-examination process remarkably. The witnesses I cross-examined had a large flat screen directly in front of them. The passages to which I directed them in a particular document would be shown on that screen within a few seconds of stating the exhibit number and page reference. This allowed the witness to locate the relevant passage far more quickly than if I had just told them the exhibit and page reference. It effectively prohibited witnesses from playing the ‘bumbling witness’ role that would allow them to waste my examination time.
This technology also allowed the arbitrators to quickly follow along with the documents being used in cross-examination. One could see that the arbitrators were using the blow-up of each passage to highlight and annotate their own bundles. This, of course, is exactly what an advocate wants to see during cross-examination.’
In an electronic exhibit database, each document is coded intuitively to allow for quick access during the most important times in the hearing. For example, during a cross-examination, the examiner wishes to quickly point the witness to Claimant’s Exhibit 1, page 1. The technology consultant simply keys in the code ‘C1-1’ and the page appears instantly on the hearing room screen. A well-prepared consultant may save snapshots of each sub-paragraph of the parties’ contract for immediate display at any time, with highlights and underlines of the favourite portions. In addition to making the presentation interactive, it gives tremendous flexibility to the manner in which the case is presented. Put more simply, it allows the advocate to flick back and forth between various exhibits instantly and also pull up other exhibits in response to related questions from the tribunal. Utilisation of this technology allows the advocate the ability to present in a non-linear and on-demand fashion. Additionally, it establishes better control and speed of the presentation, giving quick access to all documents.
Trial presentation software applications are particularly helpful in the cross-examination context. We all have seen or experienced the witness who cannot seem to find the exhibit within the paper bundles. Everyone waits around while the witness finds the correct bundle, the correct tab, turns to the correct page and then searches for the correct passage. By the time the passage is found, counsel must repeat the question again and the initial vigour of the question is usually lost. With the use of a presentation technology program, the passage the witness is unable to find in an efficient manner can be immediately pulled up on the screen for everyone in the hearing room to see. This ensures that all involved are indeed following the same, relevant document. This saves an incredible amount of time and maximises efficiency.
In the weeks and days leading up to a hearing, the technology operators essentially become members of the advocacy team as they coordinate and determine database requirements, manage audiovisual set up, and operate the presentation system during the hearing. Technology operators work closely with team members to streamline and organise case information. These individuals will help choreograph opening and closing statements as well as witness examinations and cross-examinations.
Tips on presentation technology
The hearing date is set and approaching, and the exhibit bundle is submitted, who is going to be the technology operator? In many cases, the answer is to either use a paralegal or associate. I discuss below the time and cost benefits of using a skilled technology operator rather than bogging down an associate with the task, but here I will discuss specific benefits to using a skilled operator, and tips for those who choose not to do so.
A skilled technology operator has worked on hundreds, or even thousands, of hearings and will have the expertise to make your team shine. It is common in arbitrations for the technology operator to be viewed as neutral, to be utilised by all parties. During the hearing, data moves quickly and the assembly of the presentation database, by a skilled operator, is now measured in hours, not days. The presentation database evolves over the course of a hearing as items are added or modified.
The database used for presentation is short and simple, it is a mechanism to tag exhibits – and other files – with simple identifiers for quick retrieval. Although some choices must be made about what name to assign to each item (naming convention), it is common for any one exhibit to have two or three identifiers. For the numbered items, a consistent and well-factored naming convention will promote rapid retrieval. The documents and objects that do not have an exhibit number, such as moving papers, expert reports and transcripts from prior matters, require a thoughtful and internally consistent name. Ask yourself, ‘what will everyone call this item, and given zero notice, what would I type to retrieve it?’ Bear in mind, a human can only remember so many exceptions and outliers, and that number tends to decrease when the hearing room audience is impatiently waiting for that outlier. Simple one, two or three letter abbreviations ought to suffice for most items.
The types of visuals that are most effective in an arbitral hearing largely depends on the presenter and his or her audience. Timelines, charts, graphs and document treatments are the most frequently used tools and are discussed in turn below.
Timelines are used to graphically arrange the events of a case in a chronological order to reinforce the story. By the time the hearing stage arrives, there typically will have been new evidence that has emerged since the claimant’s last written submission. The timing or descriptions of some events may have changed between the initial pleading and the most recent pleading. A simple timeline will frame the entire opening presentation. This type of slide allows for separating the key issues in the case, linking the relevant documents to the key events and using the timeline as a roadmap throughout the presentation.
One does not only need to consider the traditional ‘flag and post’ timeline. The timeline should be a visual displaying a complex story over a particular period. This can be done in several manners, depending on the message being conveyed.
The practitioner’s perspective: Document treatments
‘In my experience, the document treatment is the most vital visual tool an advocate can deploy during opening submissions. They allow the advocate to tell the story through the documents themselves. Where I practise, in London, tribunals tend to be wary of PowerPoint presentations. I find that this is often for good reason. Too often, advocates write words on a slide and treat the presentation as some form of ‘backdoor submission’. Such presentations become a distraction to a tribunal. They read the presentation and then disengage from the oral arguments, assuming, rightly or wrongly that they know what will be said. They then assume that a real, forensic inspection of the evidence will have to wait until examination of witnesses.
A PowerPoint presentation that consists largely, if not entirely, of document treatments avoids this problem, but also creates a narrative focused entirely on the evidence. The advocate, rather than just orally reciting exhibit numbers, can bring them up on the screen, placing emphasis on the provisions that he or she would like the tribunal to focus on. Now, I have heard advocates complain that this obviates the need for tribunal members to open their bundles and look through and highlight material and personally engage with each exhibit. However, in my experience, the opposite is true. By referring to and calling out provisions of exhibits on the screen, the tribunal has been presented with a submission on a particular document and, moreover, a roadmap for how the case can be decided in your client’s favour. One watches them mark up their own bundles based on the document treatments on the screen in front of them and the PowerPoint printout provided beforehand.
However, less is more. Only deploy the documents essential to your case and do so in a streamlined fashion. The opening submissions should not include all documents that you feel are helpful to your claim. As much as a document treatment can break up the monotony of an advocate talking for hours on end, it can engender a new tedium in circumstances where the tribunal is forced to look at an endless parade of, say, email images on a screen.’
A well-designed chart can be an effective tool to distil complex issues into more simple components. Let us say an advocate is tasked with the responsibility of explaining to the tribunal the different steps in a manufacturing process. Charts can explain each step of the process clearly through visuals. What could possibly take pages of text to explain can be conveyed in a single glimpse of a well-designed flowchart.
Talking about numbers is not only difficult, it can be tedious for the advocate and tribunal alike. Graphs bring the numbers to life. Graphs can be used to illustrate, for instance, the steps taken to arrive at a quantum calculation. Counsel may speak about figures and percentages for as much time as allotted, but in all likelihood, the sum and substance will be lost if only words are used. Given the complexity and length of many expert reports, using images such as bar graphs and line graphs is the best way to convey data. Bar graphs and line graphs can be used to show data trends over a period of time, or to compare different groups of data in the same time period. Pie charts, on the other hand, are used to compare individual pieces of data to the whole.
The practitioner’s perspective: The upside of tech
‘As explained above, it has been my experience that these visual tools aid your advocacy and make it a more immersive experience for the arbitrators than simply being the passive recipients of the advocate’s submissions. The arbitrators are looking at screens, marking up bundles, and looking to the speaker and the witness. If deployed properly, this technology engages, rather than distracts, the tribunal. For instance, in the last hearing I conducted, the eminently experienced chairman was continually asking me to take him to documents that just so happened to already be on the screen and on the PowerPoint deck in front of him. Soon he began to recognise that the presentation was following a linear argument that would address his questions and bring him to each of the documents he had wanted addressed. He looked to take visible comfort from this.’
The most common type of visual aid used in opening presentations is document treatments, where extracts from an important document are highlighted on screen, typically through the medium of PowerPoint. Using screenshots of important documents, with relevant passages highlighted for emphasis, is one way of showing instead of simply telling. These types of slides add authenticity to the argument and give a visual break to the tribunal. A typical setup for this type of slide is to show an image of the main document in the background, with an image of the relevant section in the foreground. These types of slides are often referred to as ‘call-outs’ or ‘blow-outs’. For example, if an advocate relies on a specific article of a contract to support their argument, they can create a slide to show that section that blows up the text to give the words of the clause prominence.
Myth versus reality
As noted above, arbitration practitioners appear to continue to harbour a number of misapprehensions or fears about visual aids and hearing-room technologies. The section below looks to dispel some of these misapprehensions.
‘I am not a visual thinker; these things are not for me.’
No one expects lawyers to wield graphic design or advanced information technology skills. Fortunately, many big law firms now have in-house graphic artists. Moreover, an entire industry has sprung up around courtroom and hearing-room technology. These companies work with the advocacy team throughout each stage of the arbitration – often reading through the pleadings in order to conceptualise themes and brainstorm ideas. If you’re not a visual thinker, consider that your arbitrator may well be, and is expecting to see them. Over three-quarters of surveyed arbitrators had personal preference to ‘always’ or ‘usually’ require the parties to provide opposing counsel a reasonable time to review demonstrative exhibits.
The practitioner’s perspective: Use consultants, not associates
‘The key cost savings in using a consulting firm to undertake this work is a reduction in associate time. Clients are naturally reticent to engage yet another vendor when they have already staked considerable resources in the advocacy team. Counsel should work to educate clients on the potential costs savings. It makes little sense in a billable-hours world to task someone with a legal education to prepare visual presentations. Of course, work expands to fill time and where associate resources have been saved by the retention of a hearing consulting firm, those resources must be redeployed thoughtfully.’
‘The arbitrators will pay more attention to the screen than the speaker.’
The last thing an advocate wants any of this material to do is to take away his or her voice or distract the arbitrators. The speaker is the centre, the focus and the message deliverer. By following the guidelines in the ‘Best practices’ section below, there will be no need to worry about competing with the slides; rather, the slides will work to enhance the overall message of the oral advocacy.
‘Hearing-room technology is too expensive.’
A common misconception is that these types of services are too costly and reserved for use only in very large cases. In fact, the argument can be made that the use of technology brings efficiency and cost reduction.
First, using a technology consultant to create an electronic database of exhibits saves a tremendous amount of time in the hearing room because the exhibits are instantly accessible. Often, the paralegal or junior associate whose sole task during a hearing day was to assist witnesses in identifying the correct bundle tab and page number is now surplus to requirements.
Second, while many will take time to make the switch from paper bundles entirely, those who embrace the paper-free hearing will see a huge reduction in printing and shipping costs. Of course, this is subject to obtaining the tribunal’s approval of this approach.
Third, as I will discuss below, there are consulting firms dedicated to visual communication in the legal industry. Do not bog associates down by having them create PowerPoints – their charge-out rates are too high to be tasked with something they are rarely skilled in in the first instance. By engaging an outside firm, you will be hiring a trusted expert in the field whose hourly rate is less than that of the associate, and can get the work done twice as fast. Clients get this.
Fourth, the technology operator can be viewed as neutral party, and is often used by both parties to display documents on the screen. For this reason, the cost of the technology operator can be split in half between the parties.
What not to do
Do not overuse
Hopefully, arbitrators will have worked through the parties’ written submissions before the hearing and prefer to be presented only with the important and relevant evidence in a succinct and well-reasoned manner. To quote Stanimir Alexandrov:
Typically I do not find it helpful for counsel deliberately to provide more PowerPoint slides than they intend to cover in their presentation. Counsel may hope that by submitting more slides than are discussed during the oral argument, they are getting an ‘extra’ submission of material to which the tribunal may refer after the hearing concludes.
By the hearing stage, arbitrators have been presented with an abundance of evidence through submissions. Do not think of the presentation as an extra submission, but rather a very simple guide to the most important evidence, which an arbitrator can reflect on post-hearing as a quick refresher of key points.
Presentations have considerable value, but can be counterproductive if overused. A useful rule of thumb is one slide per two minutes of oral presentation. Using this logic, a one-hour presentation would contain no more than 30 slides.
Going against my best advice, in a recent hearing, the lead advocate insisted on adding every useful supporting exhibit into his opening slide deck. I advised that he create one slide using the strongest exhibit in evidence and simply cite to the other relevant, related exhibits. In his opinion, this made his case appear weak, and he wanted to demonstrate to the tribunal that there was an ‘overwhelming amount of evidence’ to support his client’s case. Along with adding a slide for each exhibit, he also insisted that, behind each slide, it was important to add a full hard copy of the exhibit cited in the previous slide into the binders that were being created for each tribunal member. While adding hard copies of cited exhibits is not a bad idea in theory, it is only advised when one is capable of limiting the number of documents used in a slide deck. This quickly became a logistical nightmare when the final product was more than 800 printed pages. Needless to say, the tribunal was far from impressed.
Do not complicate
Similarly to the above, arbitrators know how to analyse a case, and identify crucial issues and focus on them. It is important to remember that if everything is highlighted, then nothing is highlighted. Never lose sight of the case theme by adding too much detail to the presentation.
Do not read from the slides
Simply typing the argument onto slides does not create an effective presentation. Well-placed summary slides including simplified bullet points are great if used sparingly, but putting text on a slide does not turn spoken word into a visual image. Great visuals are as effective as a shot of espresso. On the other hand, too many text-heavy slides can put anyone to sleep.
The use of clear and simple demonstratives, such as maps showing geographic location, photos showing the relevant site, goods and problems, and timelines and graphs showing relevant stages and actions taken, can simplify and form a record for the tribunal’s deliberations.– Julian Lew QC, 20 Essex Street
Do not tailor the message to fit the slides
Write the outline first. An effective presentation requires a compelling story. Outline your ideas before you begin to develop your slides. Once the spoken message is clear, then, and only then, should the process of adding visuals to key points in the outline begin. This way you will stay focused and on-track with your message.
Visual presentations help to illustrate the narrative of the case as well as strategically situate the most important evidence. The opening statement is the best opportunity to present a cohesive narrative to the tribunal – use the presentation to further the objectives of your oral advocacy.
Generally, there are two ways persuasive information can be processed: centrally and peripherally. Arbitrators typically process information centrally. They are analytical thinkers. Rather than using visuals to impress the audience, the persuasive appeal of visuals to an analytical thinker is using them to reduce complexity of the subject matter.
Know your audience
Build the most compelling story to reach all arbitrators. Know the baseline attitudes and experiences.
Understand that the credibility and persuasiveness of the presentation is not only about what is presented, but how it is presented. Are you organised? Prepared? Concise? When your presentation exudes these qualities, it gives merit to your argument. It projects confidence and adds to your professional image.
There is no universally accepted correct style of presenting. Be true to your own voice. Be one with the message and use visuals to support and enhance that message.
Nothing makes any presentation – especially an interactive one – more fluid than good preparation. An underprepared speaker does not present the image of being in control of the presentation. With everything else going on during the lead-up to the hearing, counsel will sometimes put off practising with the technology until the absolute last minute. The best way to prepare is to work closely with the technology consultant. Be aware of how they go through documents and annotate them. Always do a dry run in order to feel comfortable using the technology and interacting with the person running the presentation system.
Be sure to have the technology consultant test equipment to ensure the team is comfortable with the set up. It is also important for the person who will be running the presentation to click through the slides and make sure all the images appear as expected in presentation setting. Do not forget to print copies of presentations for the tribunal and opposing counsel.
Considerations for hiring litigation consultants
Not all attorneys are created equal. One would not hire an estate planning attorney to litigate an oil and gas matter. The same can be said when looking for a litigation consulting firm. An attorney would not hire an artist who is good at advertising to create slides for a hearing. It is a different form of communication. Specifically, you want a firm that has worked with different triers-of-fact and knows from experience the different types of things to which arbitrators will respond.
Seasoned consultants are experts in their respective service areas and have a vested interest in the cases on which they consult. Frankly, they have been to more hearings than most counsel. For instance, I attend an arbitration hearing on average once every two weeks. A good consultant has worked with all types of attorneys, on all different types of cases. Find someone who knows the specific arbitrators’ preferences. Hire a consultant who ‘gets it’.Have them explain their ability to understand the case quickly and easily digest complex information and legal argument.
Litigation is not a nine-to-five business. Responsiveness is critical. Ideally, the advocacy team should begin working with a litigation consulting firm at least four weeks in advance of the hearing. However, a consulting firm with the proper resources can meet the needs and manage the deadlines even at the eleventh hour.
Pick a firm that will understand your vision and case theory and help to move it along. Do not look for someone who can only make pretty pictures. Creativity, clarity and the ability to develop themes and interpret complex concepts so that the tribunal is given the information they need is how to differentiate your argument from the opposition’s. Find someone who can look at your case with a fresh perspective, identify areas where the tribunal may struggle with the information and then develop graphics to overcome that.
The ability to work together may be the most important. It is absolutely necessary to find someone who makes you and the rest of the trial team feel comfortable. There is an inverse correlation between preparing for a hearing and the amount of sleep that one gets. Find someone whose attitude will be an asset, and not a hindrance, to the team at 3am the night before opening.
As noted, the arbitration market’s reluctance to embrace courtroom technology is slowly receding. Naturally, in a hearing where one faces opposing counsel effectively deploying hearing technology, one’s own presentation is likely to pale in comparison. What is more, one will likely come under significant pressure from one’s own client who will invariably ask, ‘Why didn’t we do that?’
Notably, several arbitration practitioners who were approached to participate in putting together this chapter demurred on the basis that they thought such technology was an unnecessary distraction. It is true that the misuse of hearing-room technology has the power to confuse or seem a bit too rehearsed if not used appropriately. However, these advocates clearly had not seen it used appropriately and efficiently. It is entirely common for people to be apprehensive of new means of carrying out tasks that have been done the same way for hundreds of years. But a failure to adapt to the use of technology in the hearing room carries great risk for one’s case and, ultimately, one’s business.
 Whitley Tiller is a litigation consultant and co-founder of Evoke Legal Design, and Timothy L Foden is Counsel at Lalive.
 Rehnquist, W. H., Mecham, L.R. Report of the Proceedings of the Judicial Conference of the United States March 16, 1999. Washington, D.C.: Federal Judicial Center.
 Stanowich, T. J., Ulrich, Z. P. (2014) Arbitration in Evolution: Current Practices and Perspectives of Experienced Commercial Arbitrators. The American Review of International Arbitration 25:396, 452
 See the ‘Opening Submissions’ chapter of this publication.