Tips for Second-Chairing an Oral Argument

Introduction

It’s true what they say: advocacy is an art. But it is also a science. After years of trial and error, international arbitration practitioners (and, of course, litigators of all stripes) have established reliable processes, techniques and specific steps to follow that increase the likelihood of achieving the desired results in oral argument. Having a clear idea of those processes, techniques and specific steps – and mastering them – is the key to success.

This applies of course to the specific function of the second-chair advocate: the attorney tasked with the primary function of assisting a first-chair advocate who is pleading the case and cross-examining the witnesses. Advocacy is a team sport. But the role of the second chair remains distinct. The second chair must not only know the case inside out, but adapt to the first chair’s approach to presenting the case.

While this chapter does not pretend to be exhaustive, it does set out a summary of some of the techniques and processes that consistently prepare the second-chair advocate for success. These are presented below, loosely following the order of operations that take the second chair from the first day of hearing preparations up to the hearing itself.

Start early

The hearing should be a logical consequence of everything that came before it. Assessment and anticipation begin on day one of hearing prep.

Let us be clear about what we mean by ‘day one of hearing prep’. For many, day one means the first day after the submission of the final pleading. This is a dangerously limited definition. Day one occurs much earlier, when the brainstorming begins about the key documents and ideas that hold a case together.

In other words, ‘day one of hearing prep’ can occur as early as your case theory begins to solidify. At that point, you can already begin establishing the key themes that will need to be reinforced in oral argument.

As oral argument approaches, much of the exercise will become a matter of translating the pleadings into oral form. But the process begins before that, as soon as the key themes begin to emerge. Indeed, many themes will work better orally and in some instances be reserved for the hearing to be given their full expression. Therefore, the second chair must take a primary role alongside the first-chair advocate in performing this translation from the written to the oral. It is an ongoing process of refinement, which is just one more reason to start early.

Know your first chair

Every lawyer has their strengths and weaknesses, their tendencies and idiosyncrasies. For the sake of convenience, let’s refer to this as a lawyer’s ‘style’.

To be an effective second chair, it is important to know the first-chair advocate’s style. For example, does the first chair tend to prefer a synthetic approach in which everything is boiled down to the essentials? Or, rather, is the first chair extremely detail-oriented, preferring to think of things element by element to build up to the desired conclusion? These are of course exaggerations, and most lawyers fall somewhere in the middle of the spectrum. It is precisely the job of the second-chair advocate to determine where on the spectrum the first-chair advocate sits.

Once this is determined with reasonable certainty, the second chair should then make it his or her job to adapt to the style of the first chair. If they prefer a conceptual approach, be ready to work with that and to feed it.

This guideline also extends to the less exciting elements of the discipline. Even though formatting and printing of materials for the hearing may be handled by juniors and paralegals, the second-chair advocate should ensure that the final product is consistent with the first chair’s expectations and preferred working methods.

Become a good sparring partner

At the same time, and somewhat paradoxically, the second-chair advocate should make it a habit to challenge the first chair. It is often said that working as second chair is like being a second in a duel. This is not entirely accurate. Good second chairs do not merely dutifully check the weaponry to make sure all is in order. Rather, good second chairs are active participants throughout the process. They push the first-chair advocate to consider various angles and to improve their approach to arguing the case.

As mentioned above, various tendencies and idiosyncrasies form a core aspect of every lawyer’s style. Some characteristics are better than others. The second-chair advocate should therefore have the courage and wherewithal to work against the first-chair’s tendencies when they do not best serve the case. For example, a detail-oriented first chair can often benefit from being pushed to take a step back and see a topic from the ‘50,000-foot view’. Even if the first-chair advocate ultimately decides to stick with his or her habitual approach, a meaningful discussion of the subject from the second-chair’s perspective is excellent preparation for the moment when the tricky question comes from the tribunal (or the wily response from the witness being cross-examined).

The right number of mock arbitrators

The lazy mind might assume that a mock arbitration (to make it realistic) should mimic the actual proceeding, and therefore be handled by three arbitrators. This is questionable. Since there are no unilaterally appointed mock arbitrators (and since each mock arbitrator should try to toughen the team by being fairly hostile), the ideal number may well be two – and a sole individual perfectly adequate. When there are three mock arbitrators, one or more of them may be tempted to underprepare in reliance on the others.

– Jan Paulsson, Three Crowns LLP

This of course requires confidence, but that should follow as a matter of course: if you have been chosen to work as second-chair advocate, rest assured that you arrived there for a reason. You have shown that you can be relied on. It is therefore only natural that you not only take orders but also take equal ownership of the case, with a view to having boiled it down to its essentials by the time hearing day arrives.

The collaborative drafting of cross-outlines provides a particularly rich opportunity for the first and second chairs to spar – as well as to synchronise (see the preceding subsection). It condenses a number of the key elements to any merits hearing: mastering the documents and the story, anticipating the other side’s responses on key issues and translating the written phase of the procedure into the oral. It also gives the second chair the opportunity to advise the first chair of potential dangers lurking in certain lines of questioning. This keeps the first chair from being lulled into a false sense of security, which is always a danger when one is left to work in a vacuum without honest feedback.

In many instances it will be helpful for the first and second chairs to rehearse the key lines of questioning together – with one playing the part of the lead advocate and the other playing the witness – to test what works off the page and seek ways to further refine the approach. Similarly, short of arranging a full-on mock hearing, the second chair can periodically fall into character and play the role of the tribunal, posing difficult questions and challenging hypotheticals. Used thoughtfully, these exercises are bound to reveal points that can be put even more forcefully. It also ensures that the second chair dutifully assumes the role of a resilient sparring partner.

Master the file

It is essential that the second-chair advocate acquire complete mastery of the file, and in particular the elements that will be crucial to the first chair’s oral submissions and cross-examination.

Short of memorising every document on the record, the second chair should identify the key documents of the case and form a complete view. This is one situation where cheat-sheets are permitted. The second-chair advocate should make liberal use of tables that synthesise and summarise key areas of interest. The good news is that much of the initial legwork can be delegated to junior members of the team. When done correctly, these materials may even serve as a basis for demonstratives to be used at the hearing, further justifying the effort to create them.

You are the key to smoothness and efficiency

From the perspective of a tribunal, the role of the second chair is indeed quite important. Also important is the role of the third chair and the role of those who may not even have chairs (because they are busy with other tasks, such as preparing binders and USB sticks with documents). It is very helpful to a tribunal if counsel’s team can provide references to documents immediately upon an arbitrator’s request; if USB sticks with the record of the case can be provided, where the record is well organised, and the documents are easily accessible; and if key documents can quickly be shown on the screen, including at the tribunal’s request. It is often the second chair who is in charge of managing those activities and they are essential for the smooth and efficient conduct of the hearing.

– Stanimir A Alexandrov, Stanimir A Alexandrov PLLC

The second-chair advocate will therefore arrive at the hearing prepared both to follow the script and to improvise when necessary. Even with the best anticipation, unforeseen opportunities will present themselves in the heat of battle, and knowing the file is the best way to maximise such opportunities.

The second-chair advocate must not neglect the procedural elements of the file. First and foremost, the procedural order or orders governing hearings, but also the procedural history that could have an impact on the presentation of the case. For example, the parties’ procedural exchanges during the document production phase (Redfern schedules included) have a tendency to take on a new life at the hearing, and the second chair can help the first to seize on opportunities as they present themselves only by having a thorough command of those elements.

Excel at ‘stage management’

In theatrical productions, the stage manager assures that everything runs as smoothly as possible when the curtain rises. As one author puts it, good stage managers organise:

diverse situations while making certain that they do not lose sight of their original objective. . . . [T]hey must be able to delegate effectively, ensuring that those given a task completely understand both the objective and the process by which they are to achieve it. To motivate others they also need self-confidence and to know that they are fully aware of the work of all concerned in the production.[2]

This happens to capture another aspect of the second chair’s role. In the service of supporting the first-chair advocate, the second chair coordinates the supporting team to ensure the seamless running of the hearing. This enables the first-chair advocate to focus on the essential task of arguing the case (the ‘original objective’).

The second chair who overlooks the importance of the hearing room set-up does so at some risk. Even though others may be doing the heavy lifting (quite literally in some instances), the second-chair advocate should orchestrate the process to ensure that everything is in the right place. Reconnaissance missions to the hearing room are to be encouraged.

A practitioner’s perspective: Keep calm and carry on

I was involved in a high-profile arbitration for which the opposing party had put forward a highly regarded professor, from an Ivy League university, as an expert witness. I was second chair to a partner who was both a woman and from the Middle East. While we were preparing for the cross-examination the week before, the partner suggested that I look at publicly available records to see if the professor had been cross-examined before. In the course of this research, we came across a transcript in which he had testified before a federal judge and the judge had criticised his testimony.

Tip 1: There is no substitute for preparation, but it also helps to think on your feet and outside the box.

During cross-examination of the expert, the professor was questioned on his prior testimony. Clearly taken aback, he became extremely belligerent and started attacking the partner personally in a very rude and unprofessional manner. The partner kept calm and did not react adversely but continued pressing on the questions. This was extremely shocking to me and my inclination was to go to the tribunal to complain about these thinly veiled attacks on her gender and race. But the partner instead continued asking the questions and the professor continued with his antics. The consequence was that when the cross-examination resumed after a short break, the arbitral tribunal made the expert apologise to the partner.

Tip 2: Pick your battles carefully and realise that silence is not always weakness. The tribunal can see what is happening.

At the closing argument, the partner again focused on the case without focusing on the expert’s behaviour. The focus was on the issues, which were presented persuasively. The outcome was great – not only did we prevail in the arbitration but we were also awarded costs.

Tip 3: Focus on the story and the issues that are important for the tribunal; do not let every event become a battle.

– Kabir Duggal, Arnold & Porter

Mundane as it may sound, the second-chair advocate should ensure that everything is already in its proper place when he or she takes the stage with the first chair. For example, exhibit bundles must be easily accessible, key materials should be even closer by and the lines of sight between counsel, tribunal and witnesses must be unobstructed.

The second-chair advocate should be seated next to the first chair. This may ruffle feathers when team members have to switch seats to accommodate a less senior second-chair advocate, but egos should readily cede to the interests of the case. We also recommend that the first and second chairs have their own separate copies of the essential materials (at least the opening slides/script and the cross-outline/cross-bundle, if not the exhibits) to avoid confusion. The goal is to have two tidy, contiguous workstations.

Sharing the advocacy with juniors shows confidence in your case

Sharing part of the advocacy with less senior counsel can be effective and send the right messages.

It is understandable why the most prominent, well-known and senior partners typically want to act as the leading counsel in an arbitration, even if they are not always on top of the evidentiary record. Their experience and sense of authority can lend weight to the party’s case, especially when the members of the tribunal are familiar with them. However, it can also be effective, and indeed refreshing for the tribunal, if senior counsel allows less senior counsel, who is usually extremely familiar with the file, to do part of the oral pleadings and cross-examination. By sharing part of the oral pleadings with less senior counsel, senior counsel can send a message of confidence in their team and by extension to their case.

– Stavros Brekoulakis, 3 Verulam Buildings

Much of the same advice applies mutatis mutandis to remote ‘virtual’ hearings, which have become increasingly common. Given the acclimation of the profession (expectations, familiarity, adaptation, etc.), they are probably here to stay, regardless of whether the conditions at the time of writing of this chapter pass as quickly as we all hope. In addition to the pointers above for live hearings, the second chair should take into account the additional challenges that result from being increasingly reliant on technology.

Just as the second-chair advocate must be mindful of sightlines in the hearing room, they must be attentive to camera angles as well as microphone quality and room acoustics when preparing a virtual hearing. The feng shui of proper screen placement (viz., the arrangement of various screens relaying the images of the other hearing participants, the transcript, the documents being projected, and so on) is another topic, arguably worthy of an article in itself.

Whether the hearing is in person or virtual, the second-chair advocate should ensure that everything will be in place at the appropriate time by providing intermediate deadlines for the team in charge of preparation. Work backwards from the hearing, and ensure that there is sufficient time to complete each step (with cushion – since as we all know emergencies will happen). And remember – as Atul Gawande warns – no human, no matter how intelligent, is above a checklist to keep track of it all.[3]

A practitioner’s perspective: Prepare as if you are the first chair

Having a proactive attitude will take you a long way towards being a brilliant second chair. In the case of preparation of an oral argument, this means that rather than wait for guidance, step in the shoes of the first chair and structure the work in a strategic way. Consider asking yourself the following questions: What are the most important arguments? What is it you want to be certain that the tribunal takes away from the hearing? What are the risks to be avoided? What points should be made in cross-examination?

You need to have a very clear vision of the hearing schedule and know what you want to achieve in each part. Sometimes, this includes minimising risks.

Have a thorough knowledge of the case and the documents

No one will know the case better than you on the day so make sure you have read through all the material and anticipate the moves of the opposing party.

Have all the work that can be ready ahead of time prepared well before the week preceding the hearing as you will need the time preceding the hearing for adjustments, briefing of the first chair and client meetings.

Act like the bodyguard of the first chair

The most important role for the second chair role is to protect the first chair so that he or she can focus on and answer all questions coming from the team, experts, witnesses and the client. Anticipate what those questions might be.

Also anticipate any potential adjustments to the strategy of the other side. This will come in handy during the hearing to be adequately responsive. Your ability to find the appropriate answers when potentially new issues are raised will demonstrate that you have a thorough knowledge of the case. You should also anticipate the corresponding useful documents. If you anticipate that a specific authority might be cited, have it handy for the first chair.

Dare to lead

With the first chair busy with preparing his or her advocacy, you will have to step into shoes that could feel enormous on the day: resolving conflict within the team, management of the client and selecting priorities. This may include collaboration with more senior team members from other practices in your firm. Remember that you are the person who is best suited to appreciate these priorities. Do not pass any question or observation note from other team members or the client to the first chair: you have to select what is relevant.

Being a second chair – although it may seem less attractive than being the first chair – is also your time to shine and prove that you are taking the steps towards taking on the next role.

Enjoy it

Last, but not least, always remember to enjoy this part of the work, as your time in this role will pass by so fast.

– Flore Poloni, August Debouzy

On match day

It would be a shame for a second-chair advocate to employ some combination of the tips outlined above and be thwarted by circumstances when the hearing finally begins. With that in mind, we provide a few considerations specific to the hearing room once things are under way, to ensure that the second-chair advocate realises the fruits of all the hard work put into preparation.

Be a master of time

The second chair should be a master of time at the hearing. This subdivides into two main tasks: (1) keeping track of the order of play (i.e., the hearing timetable) to ensure that everything is in place at the right moment; and (2) keeping track of the time allotted to the first-chair advocate for whatever phase of the hearing the second chair is providing assistance.

Even if a junior or paralegal (or an iPad for that matter) is designated as the official time-keeper, the second chair is best placed to assess and advise as to whether the opening or cross-examination is proceeding on schedule to be completed in the time allotted. Tough calls may have to be made to exclude precious but less important points (‘kill your darlings’, as Hemingway said) to ensure that the first chair has sufficient time to address the key facts, propositions and documents. The second chair has a duty to assist in making those decisions.

Even when things are going smoothly, it is advisable to periodically signal to the first chair in pre-determined intervals how much time is remaining. For example, rather than waiting until the ‘two-minute warning’ to incite panic, the second chair can gently signal to the first-chair advocate how much time is remaining: thirty minutes to go, then fifteen minutes, then five minutes, and then two. Again, this method helps to ensure that the best work done in preparation doesn’t get cut simply because of a time management issue.

You’re on

The second-chair advocate must always remember that they are always ‘on’. They may not be talking and may not be the primary object of focus, but they are nevertheless performing. The second-chair advocate should therefore remain reserved at all times and avoid the temptation to have a private moment. The term poker face comes to mind. Indeed, you can often tell a seasoned second-chair advocate from a newbie on the basis of how much their expressions reveal. Newbies tend to show their responses, whereas seasoned second-chair advocates respond to difficult moments and good moments with equal aplomb.

Furthermore, the moment will likely arise for the second-chair advocate to intervene and take the floor, even if only briefly. Whether by directing a struggling witness to a page number or even assisting the tribunal with a document reference or date, the second-chair advocate should be prepared to judiciously seize opportunities to speak up when helpful.

Curate with care

Much like a curator selecting works for an exhibition, the second-chair advocate has the job of fielding input from other team members (clients included) while the first chair speaks. The second chair must first review the incoming input and decide whether it has a likelihood of being useful to the first-chair advocate in light of the topics at issue (and in consideration of the time remaining to address them). For those elements that make it past this selection process, the second-chair advocate must decide on the best way to package and present the information. In some instances, passing on a Post-it may suffice. In other instances, it may be more practical to synthesise the information or enhance it with points that the second chair deems relevant. The task requires a sufficiently confident command of the case to know the difference between something useful and something merely relevant, and to make the calls quickly.

Time is limited – not only to make points, but to convey the message to the first-chair advocate in a meaningful way. Therefore, the second-chair advocate is urged to select, package and present wisely and effectively.

Anticipate

The hearing is the moment when science meets art. All of the methodical preparation becomes something more, unexpected even, in the heat of battle. It is improvisation and inspiration. A random word evokes a thought. The ‘script’ might not mention it, but there may be an opening to explore a topic, and only thorough preparation allows for the moment to be seized with confidence, and in security.

The second chair must constantly look out for such opportunities. This requires keeping an ear out for everything of potential relevance that may occur throughout the hearing, regardless of whether the first-chair advocate is speaking. It is not enough to be on call for the first chair. Rather, the second-chair advocate must actively absorb everything that may serve as new material for the first-chair advocate to address. We have all witnessed that moment when opposing counsel introduces a novel angle or nuance, and the second chair should not merely rely on the first chair to pick up on it, but should take ownership. Even if the first-chair advocate has picked up on it, the well-prepared second chair will be in a position to offer an informed view and at a bare minimum help solidify the approach.

Once the information is processed, the second chair must then choose the moment for conveying his or her input. Often, a break will come at just the right moment and allow for a quick huddle. At other times, the second-chair advocate will have to do it on the spot, such as when the tribunal asks an unexpected thorny question. While an off-mic three-minute discussion between first and second chair might push the limit, there are more subtle approaches. For example, a Post-it with bullet points outlining key elements of a response or even a subtle finger to a key passage in an important document laid out next to the first chair can be of much assistance.

Conclusion

As mentioned in the introduction, the above tips are of course not exhaustive. Furthermore, many of the tips will need to be tailored to the specifics of a case (or the particularities of the relationship between the advocates). But regardless of which techniques one ultimately chooses to employ or forgo, the second chair must commit to being methodical in preparation and flexible in execution. Assuming that the second chair has been thorough and systematic at all stages of the process, the only thing that remains to do is to trust in that process and make the magic happen on game day.


Notes

[1] Tunde Oyewole is of counsel at Orrick Herrington & Sutcliffe LLP.

[2] Daniel Bond, Stage Management: A Gentle Art (Routledge, 2004), p. 10.

[3] See Atul Gawande, The Checklist Manifesto, p. 17: ‘We have accumulated stupendous know-how. We have put it in the hands of some of the most highly trained, highly skilled, and hardworking people in our society. .. . Nonetheless, that know-how is often unmanageable. . . . And the reason is increasingly evident: the volume and complexity of what we know has exceeded our individual ability to deliver its benefits correctly, safely, or reliably.. . . . That means we need a different strategy for overcoming failure, one that builds on experience and takes advantage of the knowledge people have but somehow also makes up for our inevitable human inadequacies. And there is such a strategy – though it will seem almost ridiculous in its simplicity . . . It is a checklist.’

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