1. Come to the hearing unprepared
The golden rule is to be prepared. Preparation is the most important factor affecting the outcome of a case. Know your file, the facts, the law, your strategy – and perhaps most importantly, where to find things. It’s obvious that counsel haven’t prepared when they spend a lot of time looking for documents and going through their notes. Really good counsel are prepared; and most arbitrators will look favorably upon a carefully thought out and organized position.
2. Carry on a debate directly with opposing counsel
The role of a lawyer is to bring information to the Tribunal. It is not to try to debate with opposing counsel. Some counsel forget that the arbitrator is there at the hearing, and that is a bad move. It is not appropriate for counsel to interrupt a dialog between opposing counsel and the Tribunal. The worst situation is when two aggressive lawyers, who dislike each other for whatever reason, have decided to use the proceedings as a way to settle the score.
3. Argue with an arbitrator after a ruling
You win some, you lose some. Counsel should accept a ruling with good grace and carry on. Even if there are legitimate grounds to appeal a decision, counsel should accept the decision during the hearing and refrain from re-arguing the case after the arbitrator’s decision has been made. Any appeals can made in a different forum. The matter is closed. Move on.
4. Badger a witness
It’s acceptable to make a fair attack on the credibility of a witness. What is offensive, however, is to badger or berate a witness. The media often perpetuates an image of lawyers who seem to be successful by being belligerent and bullying. This may sometimes work in a courtroom, but it almost never works in an arbitration.
Here’s a good career-limiting move: give the Tribunal incomplete information about the evidence. While it may seem obvious that providing incomplete information to the Tribunal is not a good idea, some counsel panic under pressure and distort the facts. Arbitrators prefer counsel who are straightforward about the facts and do not try to twist them to suit their purpose. Arbitrators want all the relevant information; not just the best cases from one point of view. Honesty always remains the best policy.
6. Come up with as many arguments as possible, regardless of their worth
Arbitrators value counsel who are brief and to the point. They don’t want to hear arguments on six different points when only two have merit. I believe that lawyers are being too careful, trying to leave no stone unturned. But the downside of that approach is that when some of the arguments are clearly borderline, the arbitrators may start to question the worth of all the arguments put forward. Far better to face boldly the difficulties in the case. There’s no point in burying your problem and hoping that no one will notice. The most effective counsel will come up with an answer to the problem, rather than trying to avoid it.
7. Contact an arbitrator about a case in progress
Follow the rules: don’t make an ex parte communication with an arbitrator while a case is underway. Another common complaint is correspondence sent to an arbitrator that has not been copied to opposing counsel.
8. Show disrespect to the process
In many ways, this category covers all of the points already listed. If you want to really test an arbitrator’s patience:
• Whisper with colleagues or witnesses when other people are speaking.
• Make faces or gestures in reaction to testimony or counsel’s questions.
• Remain seated while you’re speaking.
• Interrupt people.
• Offer no explanation for being late.
• Never extend a professional courtesy.
• Never apologize.
• Treat staff rudely.
To conclude, arbitrators try hard to overlook personal quirks and nervous habits, unless they interfere with the orderly running of the process. They do care, however, about counsel who are rude to staff or disrespectful of the process, and particularly counsel who stretch the truth and play games.
About the author: Haig Oghigian, F.C.I.Arb., is a partner with K&L Gates in Tokyo. He is recognized by Chambers Global, Asia Pacific Legal 500 and Euromoney Expert’s Guide in the field of dispute resolution. He is co-convener of the Japan Chapter of the Chartered Institute of Arbitrators and teaches International Commercial Arbitration at the University of Tokyo.