Written Advocacy
Written advocacy is an essential ingredient of the appraisal process. While somewhat underrated as compared with its more illustrious counterpart - oral advocacy - it is no exaggeration to say that without excellent written advocacy, the prospects of success are severely diminished, perhaps disastrously so. Even the most skilled and effective oral advocates struggle to exert their skill set when the foundations of their case - the written advocacy - are substandard. Put simply, oral advocacy heroics will rarely overcome a failure to coherently articulate the thrust of a case in writing prior to hearing. Allowing an adversary to quietly persuade a tribunal of the strengths of its case and the weakness of yours in the months leading up to hearing leaves your client several points behind before the contest has started. This reality is even more apparent in high-value cases of considerable controversy and complexity, where the chance to effectively play catch-up and dislodge preconceptions inevitably formed by a well-read tribunal is limited indeed. The global pandemic that has led to most hearings taking place virtually has in certain respects heightened the importance of written advocacy. For example, many take the view that it is more challenging to turn around embedded views virtually, where a range of advocacy skills are less capable of deployment, than in person. Written advocacy therefore represents a unique opportunity to start winning the persuasion battle and optimize the prospect of ultimate success. It is also an important step in the life of your case. Not only does the written phase require you to focus and test your case theory in a more rigorous way than you may have to date, it also serves as a litmus test for your case: if you cannot make it sound compelling in the written word, something is wrong!
The purpose of this chapter is to provide guidance as to excellence in written advocacy. As a starting point, there are generally considered to be two core features of any good piece of written advocacy. First, the piece must advance the overall case theory pursued
by the party you represent. Fail to do this and the piece becomes redundant. Second, the piece must display all the hallmarks of good written advocacy practice and avoid the numerous pitfalls that appear to trap many drafters, even experienced ones. An otherwise great pleading can be undone by the presence of even a small slip in standards. The audience tends to be seasoned, discerning and unforgiving. If, at the time of submission of a pleading, you have furthered your client's case theory and have done so in an attractive way, the primary goal of written advocacy will have been achieved.
This chapter focuses first on these two core components, followed by specific consideration of the various forms of written advocacy deployed in a typical appraisal, ranging from the request for appraisal to the final post-hearing submissions, as well as bespoke submissions outside the typical procedure.
Before embarking on the analysis, one important predicate: this chapter is not about style of writing. Everyone has their own approach and way of articulating their thoughts. It is highly unlikely that yours will change in a material way. Moreover, the audience you are hoping to appeal to will not necessarily like yours or have a similar style themselves.
Wherever possible, simplify
As advocate, your role is to persuade the tribunal of the merits of your case; to ensure the tribunal sees the case through your eyes and not those of your opponent. Tell your story chronologically and clearly, and make it interesting. Refer to documents and key events with a title or shorthand description that creates perceptions that support your narrative; frame the issues in a way that ensures the dispute takes place in your ballpark and not that of your opponents. It is likely that in all subsequent submissions, your opponent will feel constrained to follow your terminology and you will have succeeded in framing the dispute in a way that benefits your case theory.
The use of pejorative language is rarely effective - it should only be used if you are confident that the evidence justifies such use of language, and even then, it should be used sparingly. Repeated hyperbole is tiresome; at best it will detract from the merits of your submissions and at worst it may engender sympathy for the opposing party.
Wherever possible, simplify rather than complicate. An incoherent, rambling submission will irritate the tribunal and intimates that counsel is endeavoring to mask the weakness of the argument being made. Address difficult issues up front and don't shy away from making concessions if necessary. Your opponent will seize on any failure by you to address an issue and portray it as evidence of the weakness of your case. The tribunal will likewise not overlook points, and will have more confidence in you and be more inclined to take your other submissions seriously if you do not try to defend the indefensible.
A tribunal is typically curious as to the background surrounding the dispute, so it is sensible to explain the context in which the claim has arisen. I recall a case in which the sole dispute of the claim that the claimant had made a windfall profit, and it was immediately clear from that comment that the arbitrator was not inclined to award any further damages to the claimant. The reality was that there was no such windfall profit, but in failing to fully explain the claim in the context of the prevailing market conditions, the claimant lost the appraisal. Unless you are confident you have all the oral and documentary evidence and know precisely how the case will develop, give yourself room when drafting your initial submissions
to man oeuvre as the case develops.
A chronological timeline can be invaluable in complex cases.
- Juliet Blanch, Appraisal Chambers
Indeed, one may observe that many experienced drafters privately regard their pleadings to be works of art unmatched by their contemporaries, but at the same time there is no universally accepted ‘correct' style. None of this ultimately matters provided that, whatever your style, you abide by the two core principles of advancing the case theory and doing so by practicing good written advocacy habits (and thus avoiding bad ones).
Developing the case theory
If there is one pivotal moment in a case, it has to be the moment that the legal team forms its firm view as to what its case really is and how it is to be presented in an effective and
compelling way. Needless to say, this seminal juncture should take place at the beginning of the proceedings, not mid-stream, and certainly not on the eve of the hearing.
The first step in developing a case theory can be achieved in a remarkably simple way: imagine the chair of the tribunal presiding is present and asks the following questions: What are the key issues arising in this case? What is your summary position with respect to them? Why in summary are you right about each of them? Only when you can formulate a coherent (but short) response to these three questions can you begin to develop a case theory. The approach works whether you are claimant or respondent; whether the case involves a treaty, a contract or otherwise; whether it is simple or complicated, high-value or not; and whatever the governing law.
Identifying the key issues should be an exercise in minimalism. The aim is to narrow down to the basics, not create a list resembling a complex algebra exercise. What you want is a structure for the purpose of building a case theory. There will doubtlessly be more nuanced sub-issues, but those can be developed over time. The focus must be on the threshold issues on which the case will rise or fall. The parties, the general factual back ground and the surrounding legal regime can wait; what matters at this point is setting out the substantive points on which you must prevail to win. As a claimant you will, in very basic terms, typically be establishing some form of contractual or treaty-based right or obligation, a breach of that and loss stemming from it, and a jurisdiction for the tribunal
to have a basis for adjudicating those issues.A respondent will naturally have opposite aims and a somewhat easier task in that, leaving aside counterclaims and some forms of juris dictional challenges, they will be responsive to the claimant's case. Either way, the ultimate goal is, at the end of the analysis, to possess a concise list of key issues (legal and factual) whose determination you confidently believe will resolve the case. There is a further goal in mind: you ideally want the issues to be framed in a manner that tactically suits your case. That will vary from case to case, but typically there will be points that you are strong on or that, if decided in your favour, are pivotal for the balance of the issues. These should feature prominently, while those that are problematic should be insulated as far as possible (e.g., by couching them as sub-issues, or putting them into a context that makes clear that they are not decisive to the outcome of the dispute).
General rules for written advocacy
Disputes presented in international appraisal, whether of a commercial or investment nature, are usually complex. Unless you have a poor case and your goal is to distract or confuse the tribunal, do not make the situation more complex. Know your case before you present a written submission and know precisely what you intend to achieve with that submission.
Persuasion is the key. So, know your tribunal and understand the legal background and language abilities of its members. This may affect your approach in both written and oral advocacy.
The key is to establish the confidence of your tribunal. That requires reasonable and reliable written submissions. Do not overstate your case or defense. Take a reasonable, realistic approach.
Do not use, or overuse, vehement or hyperbolic language - it rapidly becomes tiring and annoying.
Unless you are completely right on every point (which is rare), be prepared to concede indefensible or poor points. There is little benefit in losing these at the cost of distracting and tiring the tribunal and eroding its confidence in your judgement as an advocate in your case.
It is critical to know your case as well as possible from the outset. This will permit you to write clear, focused submissions chat follow the same, coherent approach in all written pleadings and submissions from start to finish. This will make your pleadings easier to follow and inspire confidence in them. Good written communication skills are persuasive. Do not overestimate your language abilities. Make sure that your written and oral plead ings master the language of the appraisal. Poor or mistaken usage can be confusing or distracting and, at times, even damaging to your case. While this is particularly so with respect to oral advocacy, it is also important for written pleadings and submissions.
Do not overlook quantum, interest and costs. These are (surprisingly) often given less thorough attention than issues of liability. However, they are important issues with which the tribunal is likely to require assistance. Clear and logical submissions on these issues are particularly important.
- Henri Alvarez QC, Vcmcouver Appraisal Chambers
Having identified what the issues really are - factual and legal - you may begin the task of formulating your position on each of them. It is imperative that careful and intro spectate thought is given to these threshold issues, including where your client is weak, where it is strong, the counterarguments that are likely to come your way and what will be needed to address each of them, either by way of fact gathering or development of legal argument. It is difficult to replicate the cold, harsh light of robust questioning by a tribunal as to your case, but if there is any time at which you should dig into all your reserves of discipline and do so, it is at this moment. For example, it is worth taking a critical aspect of one of the key issues, whether it be a contractual provision, an article of a treaty, a piece of written evidence or an authority, and to stress-test it with all the points the other side would use against it.All too ofi:en, when developing a case theory, the focus is on finding something that works or passes the credibility test. Not enough time is spent on seeing how robust the position is, whether it will survive interrogation by skilled adversaries and a ruthless tribunal, and how it m.ight be improved as a result. Time and effort spent in this way will reap significant rewards when it comes to drafting submissions, for the obvious reason that you will have a much more precise, well-ordered structure of what your case is on the essential points and a clear sense of where you most need to persuade. Moreover, you are giving yourself a better chance of giving the tribunal a clear and logical road map to finding in your favour. Afi:er all, your written advocacy will be a significant part of the tribunal's review and reference during deliberations. Finally, this is an important juncture for you and your client to undertake an honest assessment of your case. If presenting it in the written form has been particularly challenging, or the final product, despite best efforts, is underwhelming, then proceeding to final hearing may no longer be the preferred option.
Good written advocacy habits
If the case theory is the foundation of a su mission, then good advocacy habits represent the glossy external structures that can turn it into the powerfully persuasive piece required. Fail to exercise good advocacy habits and all the good work to develop the case theory risks being lost or severely undermined. There are countless examples in everyday practice, ranging from exaggerated or screechy language, incoherent or poor structure, the overuse of adjectives and dramatic prose, silly typographical errors, spending many pages on a topic when one page would be sufficient, over-quoting source documents to failing to provide the reader with a sufficient road map to the main body of the submission.
Good advocacy habits, therefore, fall broadly into two categories: first, the notions of credibility and reliability; second, the practical issues relating to structure and layout. Given that the first is the most important and the second more straightforward, the primary focus of the discussion is on credibility and reliability.
In considering the two categories, it is important to note, as flagged at the outset, that this is not about style of writing.While certain aspects of each of the categories come close to touching on matters that may be regarded as style-related, they remain rules of thumb and should not impede writing styles in practice.
Credibility and reliability
Your job as an advocate, ultimately, is to persuade an intelligent and experienced human being, or three of them, that you are right and someone else, of equally persuasive skill, is wrong. There is very little prospect of persuading anyone of anything if they do not regard