Tips for Second-Chairing an Oral Argument

This is an Insight article, written by a selected partner as part of GAR's co-published content. Read more on Insight

The evidentiary hearing marks the culmination of any arbitration and is usually the most enjoyable phase of the proceeding for a lawyer. While many of us may dream of being as skilled as Cicero, Atticus Finch or Ruth B Ginsburg, it is important to acknowledge that these exceptional lawyers would not have been able to deliver brilliant oral arguments without the help of a reliable second chair.

Some may view second chairing as a less than thrilling role. However, being entrusted with this task is in itself a reason for pride and satisfaction: it means you are dependable and valued by both client and fellow colleagues. The second chair is responsible for providing support to the first chair, assisting with organising and strategising the presentation, and helping with the examination of witnesses and experts. Second chairs pass notes to the first chair, keep track of every detail of the case file and help the chair manage time. Additionally, if necessary, they must also be prepared to take the reins and move the hearing forward in the event of the first chair’s absence or illness.

There are numerous ways to excel as a second chair. However, this chapter outlines 10 tips and strategies that result from my own experience in the practice of law. Some of them are intentionally open-ended and abstract, while others are able to be more specifically and directly implemented. Although these strategies may seem rather intuitive, having them spelled out in a simple manner can help you reflect on whether they resonate with your experience and whether it makes sense for you to implement them. They are not hierarchically but rather loosely presented, following the logical sequence of a hearing.

Be humble and patient

Success in oral advocacy, like in any other area of law, relies on understanding the context. When given the responsibility of second chairing, it is important to realise that it is not your time to shine (yet). The opportunity will come, but for now, as a second chair, your role is to support the lead counsel and assist them as they take the spotlight. The second chair is like the director of an opera, whose main job is to ensure that the prima donna shines.

In fact, it is wrong to think that the role of second chair is exclusively assigned to junior or less experienced lawyers. Partners and senior members of the team may also serve as second chairs, particularly in complex cases where it is sensible to distribute responsibilities between a first and second chair. While the first chair may handle the opening and closing statements and examine and cross-examine witnesses, the second chair may, for instance, assume the responsibility of doing the same with the experts, or vice versa.

If the case’s structure and complexity do not require a speaking second chair, your success will be determined by your ability to remain inconspicuous. In this regard, your job can be likened to that of a chief of staff, who is always there for his or her principal but is never seen or heard.

Know your first chair

Understanding your first chair, including their style of advocacy and working preferences, is critical to the success of the hearing. However, just as there is no single correct approach to being a first chair, there is no fixed method for being a second chair. Some first chairs may be meticulous about details, while others may rather focus on the bigger picture. Some may have a tendency towards narcissism, while others may be more receptive to different viewpoints.

Accordingly, a good second chair should be able to recognise and adjust to their first chair’s specific personality and working style. This is not about following a set of objective rules that can be applied universally, but rather about sympathising with the first chair’s perspective and providing effective assistance that is tailored to their specific needs.

To achieve this, I recommend a simple three-step approach. First, take the time to observe and analyse your first chair’s approach to the case. During the preparation of the written submissions and the weeks leading up to the hearing, pay close attention to how your first chair communicates, which type of assistance they request and whether they have specific working needs. Again, this is not the time to judge whether you or someone else would do it differently, but rather about understanding your first chair’s personality.

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, Independent arbitrator

Second, communicate with your first chair to gain a better understanding of their expectations and how you can best support them. This will involve asking questions, being an active listener, and providing feedback when necessary. During the hearing, it is crucial to avoid making assumptions about what your first chair will require unless the circumstances so require. Therefore, during the weeks leading to the hearing, when in doubt always ask for clarification.

Finally, once you have a clear understanding of your first chair’s approach and expectations, adjust your own behaviour and working style to complement theirs. This may involve taking on specific (and often unfamiliar) tasks, adapting your communication style or simply being flexible and responsive to their needs. Remember, effective collaboration requires empathy and willingness to adapt to your first chair’s needs.

Know your team

Second chairs can also be compared to orchestra directors. Their role is to coordinate a team of lawyers, paralegals and assistants, similarly to how an orchestra director brings together a team of musicians to create a harmonious sound.

In a hearing room, while there may be only one person speaking to the tribunal, there are many others who do much of the behind-the-scenes work but are otherwise absolutely essential for the success of the mise-en-scène. The second chair is the person responsible for ensuring that everything runs smoothly.

To achieve this, the second chair must have a good understanding of the team to ensure an effective and efficient use of the resources available. They need to know who is best positioned to assume a particular task, who prepared the first drafts of a cross-examination and thus can find relevant documents more easily, or who has worked long hours and needs special recognition and motivation.

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

Usually, the first chair is not capable of dealing with these questions unless something significant comes up. Therefore, it is the second chair’s responsibility to know every person in the team, their strengths and weaknesses, and to harness the team’s full potential for the benefit of the case.

Know your case

As a general rule, second chairs do not speak in hearings unless the complexity of the case so requires. However, as second chair, it is essential to be well versed in every detail of the case and to have a comprehensive understanding of the file. This is because you may need to step in for the first chair if they are unavailable, and you must be prepared to assist them in any way necessary.

Instead of being a passive listener, the second chair must be highly engaged and involved in the hearing. This includes presenting exhibits on screen at the appropriate time, passing notes to the first chair when needed or identifying relevant details that may be useful afterwards.

It is without doubt more effective to prepare for the hearing well in advance rather than relying on last-minute, late night (or worse still, all-night) reviews of the file. Neuroscience has consistently shown that a steady and reliable study of a subject leads to deeper and longer-lasting memory retention. One key concept that supports this idea is known as ‘spaced repetition’. This means that by reviewing material at increasingly spaced-out intervals, the brain is better able to retain the information over time.

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

Get acquainted with the setting

As second chair of an arbitration proceeding, it is your job to be well prepared and knowledgeable about the logistics of the hearing. One of the key responsibilities of the second chair is to identify the location of the hearing as early as possible and familiarise oneself with the setting.

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 are 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

To achieve this, the second chair should endeavour to visit the venue of the hearing, be it a hotel conference room, an arbitral institution’s hearing room or a law firm’s meeting room. This provides an opportunity to assess the layout of the space, the seating arrangement and the equipment available for the hearing, such as audiovisual aids, microphones and videoconferencing systems.

In addition, virtual hearings require a different and more challenging kind of preparation compared to in-person hearings. In a virtual hearing, the quality of the sound and image is particularly important. The second chair should ensure that every member of the team has the appropriate equipment and a reliable internet connection to ensure that their audio and video quality are excellent. This will allow them to present their case effectively and persuasively.

In today’s world, where remote communication is the norm, it is essential to prepare the technical aspects of a virtual hearing. Failure to do so could undermine the credibility of your case, with all that it entails. We all remember very clearly the initial virtual hearings during the onset of the covid-19 pandemic. Some teams were not adequately prepared to cope with the audiovisual aspect of hearings, resulting in issues such as distorted sound or the mixing of counsel’s image with the documents being projected. These technical glitches can significantly distract the tribunal and undermine the effectiveness of the arguments being presented.

To avoid these issues, it is essential to test your equipment and internet connection well in advance of the virtual hearing. This includes checking your microphone, camera and internet speed to ensure that they are all in good working order. You should also test the software that will be used for the hearing to become familiar with its various features and ensure that you know how to use it effectively.

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

Furthermore, it is advisable to establish ground rules for virtual hearings, including guidelines as to the use of the mute function and protocols for sharing documents. This can help avoid any confusion or misunderstandings among team members, with opposing counsel or even with the tribunal during the hearing and ensure that everything runs smoothly.

Clear your agenda

The days immediately before the hearing and the hearing days can be quite stressful and hectic for all the team, but particularly for the first and second chairs. In the case of the second chair, this is because rather than focusing on one specific job, he or she has multiple tasks: ensuring that logistics run smoothly, being attentive to the first chair’s needs, coordinating the whole team’s work, actively following what is going on in the hearing, etc.

It is important to recognise that the demands of a hearing can be difficult to manage, especially because drawing the line between personal and professional life can be tricky. If you are juggling many different tasks, such as taking care of children, teaching at university or managing household duties, it can be challenging to stay afloat and keep up with everything.

To manage these demands, it is wise to clear your schedule as much as possible during the hearing period. This means prioritising the most important personal and professional tasks and communicating with those around you about your limitations. It may be necessary to make compromises and difficult choices, but by focusing on what is most important, you can help ensure that the hearing goes smoothly and that you are able to manage your other responsibilities as well.

Be self-confident and give confidence to your first chair

Self-confidence is one of the most valued attributes of second chairs. This is because, in the middle of a busy hearing, first chairs need to rely on someone to take care of virtually everything (from analysing the tribunal’s micro facial expressions to taking notes, to amending subsequent cross-examinations or to keeping to the schedule). If the second chair lacks self-confidence, this will unsettle the first chair, who will be more likely to lose focus.

While some individuals are naturally more self-confident than others, it is necessary to distinguish between self-confidence and arrogance. Self-confident people trust themselves because they have put in the work and know they have the necessary knowledge. Arrogant individuals, on the other hand, simply believe in themselves without justification.

Feeling nervous or anxious during a hearing does not necessarily imply a lack of self-confidence. In fact, a certain level of nerves can help maintain alertness. I recall my first time advocating in a hearing. I was extremely nervous, but my partner at the time reminded me that I had prepared the case thoroughly and would do well. Even after decades of experience, he admitted to getting a little bit nervous before entering the hearing room. This confidence instilled in me the necessary self-assurance to deliver the oral arguments calmly and contribute to eventually winning the case.

Whether acting as the first or second chair, the same principle applies. Concentrating on preparing the case will naturally boost self-confidence, leading to an improved performance and greater trust from the first chair. It is helpful to remember the 99-1 rule of thumb: the result of your work will likely be 99 per cent perspiration and 1 per cent inspiration. Often, the most talented lawyers are those who work the hardest, rather than those with innate abilities. As Pablo Picasso once said, ‘When inspiration strikes, let it find me working.’

Behave and keep your cool

You can usually tell an experienced second chair from a rookie just by their demeanour. Experienced second chairs tend to have an organised and tidy table, they do not look anxious and it is hard to tell what they are thinking. They are discrete, attentive and well mannered. In fact, the odds are that you will barely remember any particular detail about them other than their professionalism.

This does not mean that second chairs, or any lawyer for that matter, should refrain from expressing their identity through their clothing or other personal choices. In today’s world, diversity is celebrated, and everyone should be free to express themselves. What is important is that the tribunal, your team and your client can focus on what you are saying rather than being distracted by your appearance or quirks.

Keeping your cool during the hearing can also have a positive impact. Although it will not directly guarantee a victory, it can help the tribunal attain a better perception of you and the arguments delivered. This can be particularly helpful when it comes to minor procedural aspects of the case.

To keep your cool, it is crucial to show respect and politeness towards the tribunal, opposing counsel and witnesses. This means avoiding any negative comments or actions and maintaining a positive attitude throughout the hearing. Additionally, remaining calm and composed can help make a good impression on the tribunal.

Interestingly, another important factor is mastering your poker face. This means controlling your facial expressions and body language, so that no one can tell whether you perceive what is being said as beneficial or detrimental to your case. By doing this, you can avoid giving the impression that you are being overly defensive or aggressive, or that you are fearful or fearless, and instead appear impartial and professional.

All that being said, bear in mind that keeping your cool does not mean sacrificing your principles or compromising your arguments. Rather, it is about presenting yourself in a way that is respectful, courteous and professional, while maintaining the integrity of your case.

Ask for and provide feedback

Hearing preparation is not a one-off activity that ends when the hearing starts. Instead, it is a continuous process that requires revisiting your notes, interrogatories and arguments repeatedly throughout the hearing. The goal is to ensure that you are well prepared and able to present your case effectively.

During a long hearing day, you must be alert and remain focused, paying close attention to the conduct of the proceedings and taking note of any developments that may impact your case. Once the day is over, the team convenes to debrief and strategise for the following day. This is a critical aspect of hearing preparation, as it enables you to fine-tune your arguments, witness and expert examinations, and closing remarks. The evening preparation sessions involve an iterative process that may feel like an endless task, but it is a necessary one.

An honest and open relationship between the first and second chairs is crucial for successful hearing preparation. The first chair may need to be focused on the oral advocacy aspect of the day and may miss relevant details of the case. They may have overlooked a critical statement from a witness, forgotten to ask about a particular matter, or become overly aggressive or friendly with the tribunal. Therefore, the second chair must be prepared to provide feedback when necessary and ask for input from the first chair to ensure that they are receiving the kind of assistance they need. Even when there is a significant seniority difference between the first and second chairs, respect and professionalism are key to bridging the gap.

Asking for and providing feedback is necessary not only during the hearing but also after its conclusion. A post-hearing debriefing session is a valuable opportunity to reflect on the hearing, review what did and did not work and identify areas for improvement. It is an opportunity for the team to learn and grow together and to apply those lessons to future cases.

Enjoy the game

‘Go out there and enjoy the game’, legendary coach Johan Cruyff once said to F C Barcelona’s players before they won their first Champions League in 1992. This is true in football – and it is also true in international arbitration. When it is hearing day, you realise that you have put in countless hours of work preparing for this moment. You have collaborated with the first chair to develop your strategy, organised the setting, motivated your team and cleared your agenda. You understand your role and have worked hard to improve your self-confidence and keep your cool. So, on the day of the hearing, why not to try to enjoy the experience? After all, you have earned it.

In addition to the (ultimate) personal reward of reaping the fruits of your labour, there are also positive side effects of being excited during the hearing. Your passion for the case will be evident to everyone, and enthusiasm is contagious. People naturally prefer to work with optimistic individuals, and your cheerful attitude will create a welcoming atmosphere that will allow everyone to work comfortably, despite the stress of the hearing. This positive environment will bring out the best in the team and help everyone perform at their highest level.

Conclusion

Although it remains uncertain whether Cicero, Atticus Finch or Ruth B Ginsburg ever worked as second chairs, what is certain is that, at some point in their careers, they were assisted by exceptional second chairs.

With the above tips and suggestions, a second chair can rapidly enhance their performance, emerge as a valuable member of any legal team and contribute in a meaningful way to achieving successful outcomes for the client. While second chairing an oral argument demands a blend of art and science, diligence and perseverance are essential to excel in this role.


Notes

[1] Oriol Valentí is a partner at RocaJunyent.

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