Oral Advocacy

THE AUTHORS:
Aníbal Sabater, Partner at Chaffetz Lindsey
Svetlana Portman, Associate at Debevoise & Plimpton

Lawyering Plus Webinar: S1 EP5

“The role of the oral advocate is to distill the message in the memorials and tailor it to the tribunal.”

Aníbal Sabater

About Lawyering Plus

Lawyering Plus is an initiative set up by Mihaela Apostol, Dr Ilka Beimel, and Svetlana Portman to help lawyers build soft skills. Lawyering Plus organises webinars and invites expert speakers to share tips on a particular soft skill. Each episode ends with an interactive Q&A segment. The first webinar season focuses on communication skills and comprises the following episodes: Communicating with Clients (E1), Communication within the Law Firm (E2), Communicating with Experts (E3), Written Advocacy (E4), Oral Advocacy (E5), and Non-verbal Communication (E6).

Fifth Episode: Oral Advocacy

On 13 November 2024, Lawyering Plus hosted Aníbal Sabater, an accomplished international arbitration practitioner and Partner at Chaffetz Lindsey (New York), who delivered a compelling presentation on oral advocacy. Aníbal, with extensive experience in both hearings and written advocacy, shared practical insights and strategies to enhance oral advocacy skills, offering advice applicable to lawyers at all levels of seniority.

Preparing for the Hearing

Aníbal stressed the importance of thorough preparation ahead of any oral hearing. He highlighted the need to:

Prepare for long days and nights: Any hearing, particularly in an important case, can involve long, tiring days, and unexpected developments, such as last-minute document submissions or testimony changes. Try to be physically and mentally prepared—in the weeks leading to the hearing, ensure you are working out and getting plenty of rest.
Make a plan and manage your time effectively: Identify the tasks ahead and make sure all team members know what they are expected to do. Set out realistic deadlines. Effective time management and coordination are essential.
Study the case well: Mastering the facts and legal theories inside and out is crucial. Practising your arguments and preparing for potential questions from the tribunal will help maintain composure.
Know your audience: Understand the background of the arbitrators and consider the likely internal dynamics of the tribunal. Adapt your approach accordingly. Whether dealing with experienced arbitrators or “younger guns,” try tailoring your presentation to their profile and preferences.
Rehearse and anticipate difficult questions: Practising your arguments is vital. While it is impossible to predict every question and scenario, practising with colleagues or mentors and being ready for curveballs is essential. You should also consider organising mock trials.

Developing a Strong Delivery

A key takeaway from Aníbal’s session was the importance of delivering arguments clearly and persuasively. The following strategies were discussed:

Eyes on the target: Remain calm and stay focused on the end goal in order to present arguments effectively. Don’t follow rabbit trails.
Credibility: Maintain credibility throughout the hearing. Even if a single point seems stretched, it can harm your overall credibility.
Clarity and conciseness: Present your arguments clearly, avoiding unnecessary jargon and complexity. The tribunal is looking for a logical, structured presentation.
Control the pace: While staying concise, make sure to pace your arguments in a manner that allows the tribunal to follow. Pausing after main points gives them time to absorb the information.
Eye contact and engagement: Address the tribunal and establish eye contact with them directly. Don’t look like you are hiding or wishing to be somewhere else.
Politeness: Always remain polite and composed, even in challenging situations. Showing respect for the tribunal and opposing counsel is crucial for maintaining a professional image and credibility.
Strive to remain unflappable under pressure: Avoid changing positions or providing “rushed” explanations you may come to regret later. Instead, work on your poise and confidence, including during high-pressure moments. The best advocates remain unflappable, even if an argument or question comes up and they don’t know the answer right away. If something catches you off guard, it is fine to ask for a break or time to consider the issue, and return with a well-considered response.
Use of visuals: When appropriate, visuals or exhibits can strengthen your argument, but they should support your speech, not distract from it.

Involvement of Junior Lawyers in Oral Advocacy

Aníbal discussed the importance of developing young talent in the field of advocacy. He encouraged junior lawyers to take proactive roles in hearings, even if they are not leading the presentation and suggested the following:

Offer to help with tasks: Junior lawyers can get involved by drafting or reviewing parts of the opening and closing statements, helping to track the hearing transcript in preparation for closing statements, or summarising key points from the day’s discussions.
Ask for opportunities: Don’t wait to be asked. Speak with more senior team members about how you can contribute to the hearing, whether by outlining arguments, reviewing evidence, or drafting submissions.
Learn from others. Hearings provide a great opportunity to be in close contact with and benefit from the experience of clients, witnesses, senior lawyers, experts, and arbitrators.
Patience and persistence: Remember, oral advocacy opportunities may be few and far between, but consistent involvement in supporting tasks can set the stage for future roles in hearings.

Studying Oral Advocacy and Developing Your Own Style

Aníbal emphasised the importance of studying oral advocacy and developing your own personal advocacy style.

Personal style: Developing a personal style in presenting your arguments is vital, and it happens over time. By learning from senior team members and understanding different approaches, you can create a delivery that works for you. Draw inspiration from various sources, but adapt them to form your own advocacy identity.
Always keep learning: Continuous learning is crucial to refining oral advocacy skills. Aníbal shared a reading list for those looking to improve their advocacy skills. These readings provide valuable insights into effective presentation techniques and the underlying principles of strong advocacy. They also include some Roman classics, who were true advocacy masters and remain very fun to read.
- Cicero, On the Orator (Loeb edition, 1942); Brutus & Orator (Loeb edition,1939); How to Win an Argument (Princeton edition, 2016).
- Quintilian, Institutes of Oratory (Institutio Oratoria) (Loeb edition, 1920-1922).
- Parrish, Clyde H., and Yukio Yokoyama, Effective Lawyering: A Checklist Approach to Legal Writing and Oral Argument (2007).
- Weston, Anthony, A Rulebook for Arguments (5th ed., 2017).

Audience Engagement and Q&A Session

During the interactive Q&A session, participants asked Aníbal for practical advice on handling surprises during hearings, presenting complex evidence to a tribunal, and adapting advocacy styles as an arbitrator. He provided the following insights:

Handling unexpected or challenging questions during hearings:
- Don’t be intimidated by tough questions. Being right in your answer, even if it takes some time to think it through, is more important than coming across as quick on your feet. Maintain credibility. Don’t try to appear overly smart.
- It is acceptable to ask for time to study an issue before responding. Tribunals generally understand and appreciate thoughtfulness.
  In case of unexpected allegations or situations (e.g., accusations of witness tampering, corruption, or document forgery), remain calm, gather facts quickly, and address the tribunal with a composed and fact-based response.
- Turn the crisis into an opportunity. If you are caught off guard, use the question as an opportunity to demonstrate your deep understanding of the case and reliability. You may even ask the tribunal for further clarifications of their question if needed.
Presenting complex technical evidence to a tribunal:
- Understand the tribunal’s level of expertise and adjust the presentation accordingly, balancing high-level explanations with necessary detail.
- Keep in mind that arbitrators may not have the same depth of familiarity with the case as counsel, so avoid assuming their understanding matches yours.
- Aim for clarity and simplicity, especially when dealing with technical issues, to ensure the tribunal can follow the argument effectively.
Adapting advocacy style as an arbitrator:
- Sitting as an arbitrator provides perspective on common advocacy mistakes, such as overuse of humour, which might not resonate well in multicultural or formal settings.
- An arbitrator values clarity, conciseness, and culturally sensitive communication over rhetorical flourishes or attempts at levity.
- Focus on what helps the tribunal understand and decide the case efficiently.

Key Takeaways on Oral Advocacy

Preparation: Master the facts, manage time well, and tailor your approach to the tribunal. Rehearse arguments and anticipate tough questions.
Delivery: Be clear, credible, and concise. Maintain composure under pressure and engage the tribunal with eye contact and politeness.
Junior lawyers: Seek proactive roles, assist with tasks, and build experience for future advocacy opportunities.
Personal style: Continuously refine your advocacy style through practice and learning. Observing senior advocates and key texts can help sharpen your skills.
Handling surprises: Stay calm, take time if needed, and turn unexpected questions into chances to demonstrate your knowledge.
Complex evidence: Simplify technical details to match the tribunal’s understanding.
From an arbitrator’s point of view: Prioritise clarity and efficiency, avoiding excessive humour or complexity in communication.

The episode recording is available on the Lawyering Plus YouTube channel.

Next Episode

The next session, scheduled for February 2025, will focus on demeanour and non-verbal communication in legal settings. Follow Lawyering Plus on LinkedIn and Arbi.City to receive updates on future episodes and learn more about soft skills or subscribe here.

ABOUT THE AUTHORS

Aníbal Sabater is an International Arbitration and Disputes Partner at Chaffetz Lindsey (New York). He is admitted to practice in the District of Columbia, California, New York, Spain and England & Wales. With almost 30 years of experience in international commercial and investment arbitration, Aníbal has handled complex cases under all major arbitration rules. Aníbal is widely recognised in professional peer-reviewed repertoires such as Chambers, Legal 500, and Who’s Who Legal. Clients and peers commend Aníbal as an advocate who “excels at hearings, with an outstanding performance at cross-examination, knowing the key commercial goals of the client and implementing the best strategy to reach those goals.” (Chambers USA). In addition to his work as counsel, Aníbal has an active practice as an arbitrator. He writes and speaks often on advocacy issues.

Svetlana Portman is an Associate in the London office of Debevoise & Plimpton and a member of the International Dispute Resolution Group. Her practice focuses on international arbitration and public international law. Svetlana represents private clients and states across multiple jurisdictions in investor-state and international commercial arbitrations governed by various substantive laws and conducted under the auspices of the major arbitral rules, including ICSID, LCIA, ICC and UNCITRAL. She is familiar with disputes across a broad range of industries and sectors. Svetlana is admitted as a Solicitor of the Senior Courts of England & Wales and to the bars of New York State and Israel. As a solicitor-advocate, Svetlana has full rights of audience before all civil courts of England & Wales. She is one of the founders of Lawyering Plus.

*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.