Do you know what we, homo sapiens sapiens, love above all? Good stories. We have been telling them since the dawn of time. Everyone enjoys listening to gripping tales. Judges and arbitrators are not different.
A case pending before the court is always a story. Unfortunately, it usually seems tedious and complex… unless counsels do something about it. If you are able to turn the facts of your case into a coherent, engaging narrative, then you are in a good position to swing the tribunal in your favour. Your points are more likely to be heard, your arguments will resonate stronger and the panel will have a better understanding of your position. Just because it will pay more attention.
Easier said than done? Each case is different, each provides different challenges and opportunities. However, there are a few basic steps you can take to make sure that the story you will be telling the tribunal is easy to digest and engaging.
- Find a theme for your case
A ‘theme’ is an underlying motive you attach to your case. Its aim is twofold: Firstly, it is a glue which binds all your arguments together, the very essence of what your position is all about. Secondly, it should demonstrate that the sense of fairness and justice will suffer if the court or tribunal rules against you. A theme can be understood as a recurring message you put across so that it stays with the tribunal and is taken into account in their decision-making process.
A good theme is short and simple. You should be able articulated in one or two sentences. It should cause no outrage or surprise and be derived from facts and law relevant for the case which support the position of the party that you represent.
Themes can differ significantly depending on the circumstances of each case. They may stress equity or legal certainty, procedural propriety or effective administration of justice. In a commercial dispute a theme can be build e.g. around an attempt of one party to burden the other with the consequences of their business mistakes in an unfair way. In an investment case it could be disguising an illegitimate takeover of private property as an action in the public interest. And so on, and so forth.
Finding a credible theme that you can come back to an use in the course of your pleading is by no means easy. Ask yourself a question: what this particular case is all about? Once you have this big, yet accurate picture, it will give both you and the arbitrators judging your performance a sense of meaning and direction.
- Draw a map of your pleading with clear borders
It is easy, is it not? Well, maybe if you stick to the regular ‘introduction – arguments – conclusions’ scheme. To make sure your pleading maintains good flow, you have to move beyond it. Arbitrators or judges need to know at all times at which point of the pleading you all are.
To lay foundation of clarity, you have to begin with a good intro. A perfect introduction has to include a roadmap in which you briefly, but exhaustively explain what are your submission and in which order you will address them. E.g., the tribunal has to know that firstly, you will argue that it has jurisdiction over the dispute and secondly, that interim measures requested by respondent lack merit and should not be granted. Signpost when you move to our first submission and when you conclude it to move to the next one. If you jump straight to the argument and fail to signal that you finish it to discuss another one you almost guarantee that the judges will get lost at least for a second (human attention span is really limited and not all moot arbitrators have mastered mindfulness, I guarantee).
The same logic should be applied to the core of each of your submissions. Each of them will be likely supported by a couple of arguments which will require discussing them in a structured way. Again, before you go deeper, and to build on the previous example, stress at the very beginning that the tribunal has jurisdiction, since the parties signed a valid arbitration clause and your client followed al the pre-arbitral steps instead of jumping straight to countering your opponent’s arguments.
It is your responsibility to make sure that at all times the tribunal knows where your story is going. In lengthy arguments that you will be making this sense of clarity will be highly appreciated.
- Use connectors and linkers to keep your speech smooth
Without connections you are doomed – your pleading will be disjointed, confusing and unpersuasive. It is not enough to outline what you will discuss and signpost when you move from one issue to another. To be a great storyteller, you need to go further, up to the level of a single sentence.
Sentence connectors and phrase linkers give flow to your argument, skeleton for your syllogistic thinking when you are making a legal argument and contrast when you need to compare and distinguish. Without using the words ‘therefore’, ‘hence’, ‘consequently’ it will be difficult to demonstrate you are reaching a conclusion. Without ‘however’, ‘nevertheless’ or ‘likewise’, a positive or negative inference you draw will not resonate well. If you fail to connect different parts of your pleading this way you hurt your story.
- Do not get distracted or carried away
In a perfect world when you plead and you feel the flow nobody should feel like interrupting you. The best pleaders simply leave no door (or window) open for questions or interruptions because their argument is so smooth: one thing leads logically to another without the need for any clarifications. Even when you are in the zone, you may still get questions. Do not lose your focus then. Answer them like an expert and return to your structure and sequence of arguments you were planning to follow. They should be at worst a minor disruption, no a reason for you to abandon the story you were recounting altogether.
- Check if the tribunal follows
It is necessary to make sure that you and the tribunal are on the same page all the time. You can see it from their body language, eye contact and reactions. If you see that arbitrators did not understand a particular point you were making, it is fine to rephrase is, support it with a real-life example or use an alternative you have up your sleeve. When you notice their attention disappearing, you can gently wake them up by beginning he next phrase with a direct exclamation, like – ‘members of the tribunal’. When you realize they cannot find a page in the record, wait for them. The point of observing the tribunal is vital, since once the connection you have is severed for some reasons, it takes precious seconds to re-establish it – and it always might be the precious seconds when your key argument is made.
A transition from a pleading which is just an orderly presentation of arguments to a story that every judge would enjoy is a difficult process. However, I hope that now, with a mindset of a storyteller, you will at least try!
All the best,