At the end of last year, I had my first experience of conducting the advocacy in an international commercial arbitration. For the first time, I was up there in front of the tribunal, not just listening to what was being said and helping to locate documents, but making submissions and cross-examining witnesses.
Fear. Excitement. Trepidation. Pride.
These were just some of the emotions I felt in the days leading up to the hearing. In fact, if I’m totally honest, it was mostly fear. Fear of getting it wrong, fear of looking stupid, fear of freezing up and not knowing what to say. But, in spite of the fear, I knew it was something I could do and I was excited; scared, but excited at the prospect of finally getting to speak.
Now that I’ve done it, and had a chance to reflect on it all, I thought I’d share my own personal experiences, in the hope of encouraging other young arbitration practitioners to get up there and give it a go.
Here is my list of the top five dos and don’ts:
1. Prepare, prepare, prepare (and then prepare some more).
Have you ever heard of the six Ps rule? I heard about it for the first time when shadowing a judge in the Technology & Construction Court (TCC). It stands for Proper Planning and Preparation Prevents Poor Performance. No doubt you’ll have heard that the best cross-examiners do not follow a script; they approach the examination with maximum flexibility. That is all well and good, but by no means does it mean that those advocates spend less time preparing. They will have spent days drilling into the issues and familiarising themselves with the evidence in order to prepare a trial plan, which they will have committed to memory. They will know exactly what admissions they need to get out of each witness and what evidence to use. As a junior advocate, your preference may be to have a script. That does not mean that you should not spend time preparing a trial plan. The thinking involved in preparing a trial plan is vital for an effective examination. Ask yourself what you need to establish to succeed and how you are going to do that (with what documents, with which witness/expert).
2. Know your documents and the cross-references to the hearing bundle.
Nothing is more disruptive (and stressful) than having to waste precious time searching for documents. This may seem like an obvious point but it’s surprising how often advocates either haven’t spent enough time familiarising themselves with the hearing bundle, or rely on cross-references prepared by others who are not as familiar with the case. If you are going to rely on the cross-references prepared by someone other than you, check that they are to the correct documents. Knowing the documents and where they can be found will not only make you feel more confident (which, in turn, improves the quality of your cross-examination), but will also make you look prepared in the eyes of the tribunal.
3. Listen to the answers being given by the witness and know when to keep pressing and when to stop.
As a junior advocate, chances are that once you’ve asked a question you’ll be looking at your notes to see where you need to go next. Don’t. Ask the question, look up from your notes and listen to the witness. If you don’t, you may fail to realise when the witness has just provided helpful testimony which needs to be either followed up with a detour, or means that there is no need to continue with that line of examination. If they’ve given you what you want, don’t say anything (resist the urge to say “thank you”!) and move on.
4. Don’t be afraid of silence.
This is one of the most important lessons that I learned during my first hearing. It’s okay to take some time to think before asking a question. No one will mind if there is a minute of silence. Plus, pauses don’t come up on the transcript.
5. Be brave.
I cannot stress this enough. On the first morning of your first hearing you will probably be feeling a mixture of fear and apprehension. In all likelihood, you’ll be asking yourself why you ever agreed to do this. It’s okay, just breathe. If you’ve done the preparation, you will be fine.
I have learned so much from my first experience as an advocate. I have a far greater appreciation of the amount of preparation that is required and of the skills that are needed to draw out helpful evidence and to control difficult witnesses. All of the long hours of pre-trial preparation were definitely worth it, and I was so thrilled and proud to see my name on the transcript at the end of the hearing, and to know that I’d done it. So all I’d say is: be brave. You can do it. I did.
