Whitley Tiller and Timothy L Foden, Evoke Legal, LALIVE
This is an extract from the fourth edition of GAR’s The Guide to Advocacy. The whole publication is available here.
Aim for the ‘technology’ to disappear
When deployed effectively, technology can yield improvements at arbitral hearings in two main areas: efficiency and advocacy. The former has largely been realised. For instance, cross-examinations and oral submissions have been streamlined, as large bundles have been replaced with digital technology that offers the ability to call up and then zoom in on the relevant passage of a particular exhibit almost instantly. However, the role of technology in advocacy remains more of an art than a science.
Approaches to technology vary as widely as approaches to advocacy. The use of PowerPoint presentations is a ready example, with some accomplished advocates relying on hundreds of dense slides, and other equally distinguished counsel adopting a far more minimalist approach.
In my experience, less is more, and more is often counterproductive. During a hearing in which the tribunal is likely to have been inundated with ‘huge, frightening written memorials’ (to quote Toby Landau’s 2011 keynote address at the 2011 ITA Workshop), the main task of an advocate is to separate the wheat from the chaff and to focus the tribunal on the dispositive elements of the client’s case.
The number of slides should reflect this. And because it is exceedingly difficult for an arbitrator to read a slide while listening to argument, care should be taken to simplify the slides and to pause the presentation while they are being reviewed. Whatever an advocate’s preferred style, the aspiration should be to introduce technology more seamlessly into argument and examination, and this requires substantial preparation time. As counsel and hearing teams continue to become more experienced and adept with technology, it paradoxically may be that tribunals will become less aware of its presence.– Luke Sobota, Three Crowns LLP
Understanding the psychology of visuals – why demonstratives are important
Close your eyes for just a second and think of your favourite novel. What is the first thought that comes to mind? Probably not the publisher’s name, the writing style of the author, or even the genre. More likely it is the characters. When you close your eyes, you can see them. Your brain has converted written text into a visual format. The power of images is not a new concept. Early human beings used cave paintings to communicate ideas visually. Throughout history, we have learned language through pictures. A child living in a city may have never seen a cow, but will understand the word and the meaning behind it because he or she has seen a picture. Pictures bring clarity to the confusion that language sometimes creates. Visual communication is an incredibly effective tool for eliciting emotion in nearly all areas of life.
So why are demonstratives – graphical depictions of evidence – so infrequently deployed in international arbitration hearings? In this chapter, we discuss the value and benefit of effective graphic communication in arbitration oral advocacy.
Images are expectations
We live in a visual world – one might say that we are image-obsessed. Visuals and technology are becoming expectations, not luxuries. As soon as we open our eyes upon waking, we are flooded with images. For many, the first thing they do in the morning is look at all kinds of images in various formats on their smartphone. There are posters in the railway stations we use for our daily commute. We turn on the TV because we want to see the news rather than read it. We take photos of things we want to remember, and send photos as a means of communication.
The practitioner’s perspective: How I slowly learned to like tech
While I have not been practising long enough to remember the days of the overhead projector in the litigation context, my earlier years in the arbitration hearing room seem Neolithic compared to the smooth and sophisticated visual displays we have today. I remember spending hours agonising over putting a simple profit and loss sheet on a piece of foam board. Our efforts were not only hampered by our own lack of tech savvy, but also the typical vacillations of the lead partner and a lack of suitable graphic or printing facilities in the particular jurisdiction. As one of the junior lawyers on the team, of course it fell on me both to read the mind of the lead partner and to make a reproduction company that worked past 5pm materialise out of thin air. Experiences such as this one put me off hearing room technology for some time.
A similar predicament presented itself with my earlier stabs at PowerPoint. Operating on a shoestring budget for an ICSID annulment case, I was tasked with translating the lead advocate’s vague case theory metaphor of ‘collapsing dominoes’ into a clear graphic. This presented two problems – while I toiled away at creating animated, coloured text boxes, the lead advocate abandoned his own metaphorical approach to the issue as ‘silly’, without telling me of course, and I was terribly artistically challenged. Needless to say, this experience coloured my view of PowerPoint for some time.
It was not until some years later when a case budget allowed for the engagement of litigation consultants did I learn to stop worrying and love the PowerPoint demonstrative, which I return to below.
Growing global use
We are living in a world that is not only visual but also fast-paced. In this fast-paced world, human attention tends to drift and instant gratification is the norm. Technology both fuels and satisfies this need for immediate visual input. This need does not end at the threshold to the arbitral hearing room.
Before discussing the means by which the need for visual stimuli permeates the hearing room, it is helpful to trace the recent history of demonstratives in the litigation context.
Modern hearing room technologies have their roots in jury trials in the United States. In a system in which juries hear civil suits, the need to convey information to the lay members of a jury took on increased urgency in the era of high-value patent and antitrust litigation. In 1999, the Judicial Conference of the United States concluded that ‘courtroom technologies constitute a significant enhancement to the fact-finding mission of the federal courts’, and urged that these technologies ‘be considered necessary and integral parts of courtrooms undergoing construction or major renovation’.
Despite the recognition of the need for technology nearly 20 years ago, many US courtrooms still require a ‘set-up’. This means that the parties must hire an equipment vendor to go into the courtroom ahead of the trial date and set up rented equipment, such as projectors and monitors, while conforming to the limits imposed by the courthouse staff and security requirements. Regardless of the amount of effort, coordination and cost that is required for these set-ups, the use of technology remains the norm in US courtrooms.
In arbitration venues across the globe, most of the hard work has already been done. These facilities are equipped with modern technology and far more deferential to the instant hearing than a courtroom running a long docket. In most cases, this means simply plugging in a laptop to display presentation materials. Technology has become part of the conversation in international arbitration, with venues promoting their plug-and-play technologies for ease of use.
The development of better software, the rise of an industry dedicated to technology consulting and the modernisation of hearing venues has led to commonplace functionality and technological progress among arbitration practitioners. It is no longer uncommon for the screens to be turned on, and used successfully, throughout a hearing.
The use of technology in the hearing room
Persuasion is a skill used in all human interaction. In the legal world, it is the reason for interaction: we tell stories using evidence and rhetoric to convince decision makers to decide in our client’s favour.
We see not only with our eyes but also with our brains. Our brains use our past experiences to fill in gaps in information. Arbitrators, like any audience, seek clarity and understanding, which is often complicated by diverse cultural, language and regional perspectives. Further, arbitrators often begin to form opinions of the case very early in the proceedings, filling in the gaps of information based on previous case experience and their own perspectives. The use of a visual presentation not only provides an opportunity to heighten the tribunal’s interest, but to frame the story, make the arbitrators want to hear more about your case and process the evidence in your favour.
Courtroom technology has come a long way since the days of the overhead projector and foam boards. Technology is no longer a bulky distraction but, rather, can facilitate a more persuasive presentation. What is more, the application of this technology is not nearly as daunting as it once was – it can be deployed with relative ease and less expense. We now focus on three areas specifically for use in international arbitrations: e-briefs (eliminating the need for hard-copy submissions), presentation technology and technology consultants (for managing documents during the hearing), and persuasive presentations (the visual piece).
The practitioner’s perspective: E-briefs
In my experience, an increasing number of tribunals have requested hyperlinked submission and, in particular, witness statements. These interactive pleadings are certainly helpful, but I suspect that they are requested by tribunals more out of the appeal of convenience than out of necessity. This is for two reasons. First, I have found that e-briefs often contain many broken links or incorrect links. This makes sense, because junior counsel in particular will know that the vendor is provided with the submission on very short notice and given a very short turnaround time to code and produce the e-brief. Of course, this leads to mistakes, but is a creature of last-minute pushes to meet deadlines. The second reason is that I find that arbitrators still love their paper. I empathise with this continued affinity with print as I tend to process and remember words on the page better than words on the screen. I have yet to see a tribunal member rely entirely on a tablet during a hearing, though I may be in the minority in this regard. Even in cases where the tribunal has requested e-briefs, I still tend to see the arbitrators working from printed bundles during the evidentiary hearing.
One does not need to wait until the hearing phase to apply technology persuasively. A first step in conducting a paper-free hearing is to begin using available technology solutions from the initial pleading. An e-brief is an interactive version of your submission. Rather than searching through hundreds of PDF files or boxes of paper, an e-brief enables the tribunal to click on hyperlinks from the cites in your brief to all the referenced exhibits, legal authorities, witness statements and expert reports in an easily accessible digital format. The e-brief is becoming more popular because of its ease of navigation, precise linking and accessibility via any computer or tablet. E-briefs provide the perfect affordable solution for tribunal members to easily review all submissions from the statement of claim through post-hearing briefs in a joined-up manner. In short, these submissions provide the arbitrator with an opportunity to examine the submissions and evidence in a more holistic fashion.
Presentation technology and technology consultants
Commonly referred to as the ‘hot-seat’ operator, technology (or presentation) consultants are responsible for pulling the exhibits up on the screen in real time. The bundle, in electronic format containing PDF files, and possibly other types of files, must be arranged impeccably.
Technology operators create an electronic bundle of all exhibits for use in real time on the screen in the hearing room using evidence presentation software suited for the task. The use of such software yields quick access to supporting information and allows for the repetition of key points, which increases retention. Documents are presented as a full page of a black screen without the menu bars and ribbons found in office software. Document treatments, such as zoom in, call-out (inset), highlighter and underline are used to focus the viewer on particular content. The advent of widescreen display has made it possible to display full pages side by side, to compare documents or read carry-over paragraphs. Exhibits, not limited to PDF documents, can be displayed natively, which means that a Microsoft Excel file can be shown in Excel, instead of the process of printing it and showing a spreadsheet across multiple sheets of paper. Certain non-printable items, such as large spreadsheets, animated slides and videos, can present challenges for maintaining a record, as these do not print on paper in the same way as they have been displayed on the screen. These situations ought to be brought to the attention of the tribunal particularly when the native format contains information that needs to be relied upon.
The practitioner’s perspective: Electronic bundles
I had never used an electronic bundle until an ICSID hearing approximately two years ago. It streamlined the cross-examination process remarkably. The witnesses I cross-examined had a large flat screen directly in front of them. The passages to which I directed them in a particular document would be shown on that screen within a few seconds of stating the exhibit number and page reference. This allowed the witness to locate the relevant passage far more quickly than if I had just told them the exhibit and page reference. It effectively prohibited witnesses from playing the ‘bumbling witness’ role that would allow them to waste my examination time.
This technology also allowed the arbitrators to quickly follow along with the documents being used in cross-examination. One could see that the arbitrators were using the enlargement of each passage to highlight and annotate their own bundles. Of course, this is is exactly what an advocate wants to see during cross-examination.
In an electronic exhibit database, each document is coded intuitively to allow for quick access during the most important times in the hearing. For example, during a cross-examination, the examiner may wish to direct the witness quickly to Claimant’s Exhibit 1, page 1. The technology consultant simply keys in the code ‘C1-1’ and the page appears instantly on the hearing room screen. A well-prepared consultant may save snapshots of each sub-paragraph of the parties’ contract for immediate display at any time, with highlights and underlining of the favourite portions. In addition to making the presentation interactive, it allows tremendous flexibility in the manner in which the case is presented. Put more simply, it enables the advocate to flick back and forth between various exhibits instantly and to pull up other exhibits in response to related questions from the tribunal. Use of this technology gives the advocate the ability to present in a non-linear and on-demand fashion. Additionally, it establishes better control and speed of the presentation, giving quick access to all documents.
Trial presentation software applications are particularly helpful for cross-examination. We all have seen or experienced the witness who cannot seem to find the exhibit within the paper bundles. Everyone waits while the witness finds the correct bundle, the correct tab, turns to the correct page and then searches for the correct passage. By the time the passage is found, counsel must repeat the question and its initial vigour is usually lost. With the use of a presentation program, the passage the witness is unable efficiently can be immediately pulled up on the screen for everyone in the hearing room to see. This ensures that all involved are following the same, relevant document. It also saves an incredible amount of time and maximises efficiency.
In the weeks and days leading up to a hearing, the technology operators essentially become members of the advocacy team as they coordinate and determine database requirements, manage audiovisual set-up and operate the presentation system during the hearing. Technology operators work closely with team members to streamline and organise case information. These individuals will help to choreograph opening and closing statements as well as witness examinations and cross-examinations.
Tips on presentation technology
The hearing date is set and approaching, and the exhibit bundle is submitted. Who is going to be the technology operator? In many cases, it will be either a paralegal or associate. There are benefits in time and cost in using a skilled technology operator rather than bogging down an associate with the task, but before discussing those, let’s look at the specific benefits of using an operator with the appropriate skills, and some tips for those who choose not to do so.
A skilled technology operator will have worked on hundreds, or even thousands, of hearings and have the expertise to make your team shine. It is common in arbitrations for the technology operator to be viewed as neutral, to be used by all parties. During the hearing, data moves quickly and the assembly of the presentation database, by a skilled operator, is now measured in hours, not days. The presentation database evolves during the course of a hearing as items are added or modified.
The database used for presentation is short and simple; it is a mechanism to tag exhibits – and other files – with simple identifiers for quick retrieval. Although some choices must be made about what name to assign to each item (naming convention), it is common for any one exhibit to have two or three identifiers. For the numbered items, a consistent and well-factored naming convention will promote rapid retrieval. The documents and objects that do not have an exhibit number, such as moving papers, expert reports and transcripts from prior matters, require a thoughtful and internally consistent name. Ask yourself: ‘What will everyone call this item and, given no notice, what would I type to retrieve it?’ Bear in mind that a human being can remember only so many exceptions and outliers, and that number tends to decrease when the hearing room audience is impatiently waiting for that outlier. Simple abbreviations of one, two or three letters ought to suffice for most items.
The types of visuals that are most effective in an arbitral hearing largely depend on the presenter and his or her audience. Timelines, charts, graphs and document treatments are the most frequently used tools and are discussed in turn.
Timelines are used to graphically arrange the events of a case in a chronological order to reinforce the story. By the time the hearing has begun, typically new evidence will have emerged since the claimant’s last written submission. The timing or descriptions of some events may have changed between the initial pleading and the most recent pleading. A simple timeline will frame the entire opening presentation. This type of slide allows for separating the key issues in the case, linking the relevant documents to the key events and using the timeline as a road map throughout the presentation.
One does not only need to consider the traditional ‘flag and post’ timeline. The timeline should be a visual displaying a complex story that covers a particular period. This can be done in several manners, depending on the message being conveyed.
The practitioner’s perspective: Document treatments
In my experience, the document treatment is the most vital visual tool an advocate can deploy during opening submissions. It allows the advocate to tell the story through the documents themselves. Where I practise, in London, tribunals tend to be wary of PowerPoint presentations. I find this is often for good reason. Too often, advocates write words on a slide and treat the presentation as some form of ‘backdoor submission’. These presentations become a distraction to a tribunal. They read the presentation and then disengage from the oral arguments, assuming, rightly or wrongly, that they know what will be said. They then assume that a real, forensic inspection of the evidence will have to wait until examination of witnesses.
A PowerPoint presentation that consists largely, if not entirely, of document treatments avoids this problem, but also creates a narrative focused entirely on the evidence. The advocate, rather than just orally reciting exhibit numbers, can bring them up on the screen, placing emphasis on the provisions on which he or she would like the tribunal to focus. Now, I have heard advocates complain that this obviates the need for tribunal members to open their bundles and look through and highlight material and personally engage with each exhibit. However, in my experience, the opposite is true. By referring to and calling out provisions of exhibits on the screen, the tribunal has been presented with a submission on a particular document and, moreover, a road map for how the case can be decided in your client’s favour. One watches them mark up their own bundles based on the document treatments on the screen in front of them and the PowerPoint printout provided beforehand.
However, less is more. Only deploy the documents essential to your case and do so in a streamlined fashion. The opening submissions should not include all documents that you feel are helpful to your claim. As much as a document treatment can break up the monotony of an advocate talking for hours on end, it can engender a new tedium in circumstances where the tribunal is forced to look at an endless parade of, say, email images on a screen.
A well-designed chart can be an effective tool to distil complex issues into more simple components. Let’s say an advocate is tasked with the responsibility of explaining to the tribunal the different steps in a manufacturing process. Charts can explain each step clearly through visuals. What could possibly take pages of text to explain can be conveyed in a single glimpse of a well-designed flowchart.
Talking about numbers is not only difficult, it can be tedious for the advocate and tribunal alike. Graphs bring the numbers to life, and can be used to illustrate, for instance, the steps taken to arrive at a quantum calculation. Counsel may speak about figures and percentages for as much time as allotted, but in all likelihood, the sum and substance will be lost if only words are used. Given the complexity and length of many expert reports, using images such as graphs is the best way to convey data. Bar graphs and line graphs can be used to show data trends over a period of time, or to compare different groups of data in a single period. Pie charts, on the other hand, are used to compare individual pieces of data to the whole.
The practitioner’s perspective: The upside of tech
As explained in the panel, above, on ‘How I slowly learned to like tech’, it has been my experience that these visual tools aid your advocacy and make it a more immersive experience for the arbitrators than simply being the passive recipients of the advocate’s submissions. The arbitrators are looking at screens, marking up bundles, and looking to the speaker and the witness. If deployed properly, this technology engages, rather than distracts, the tribunal. For instance, in a hearing I conducted, the eminently experienced chairman was continually asking me to take him to documents that happened to be on the screen already and on the PowerPoint deck in front of him. Soon he began to recognise that the presentation was following a linear argument that would address his questions and bring him to each of the documents he had wanted addressed. He appeared to take visible comfort from this.
The most common form of visual aid used in opening presentations is document treatment, in which extracts from an important document are highlighted on screen, typically through the medium of PowerPoint. Using screenshots of important documents, with relevant passages highlighted for emphasis, is one way of showing instead of simply telling. These types of slides add authenticity to the argument and give a visual break to the tribunal. A typical set-up for this type of slide is to show an image of the main document in the background, with an image of the relevant section in the foreground. These types of slides are often referred to as ‘call-outs’ or ‘blow-outs’. For example, if an advocate relies on a specific article of a contract to support an argument, he or she can create a slide to show that section, enlarging the text to give the words of the clause prominence.
Myth versus reality
As noted above, arbitration practitioners appear to continue to harbour a number of misapprehensions or fears about visual aids and hearing room technologies. The aim of the next section is to dispel some of these misapprehensions.
‘I am not a visual thinker; these things are not for me’
No one expects lawyers to wield skills in graphic design or advanced information technology. Fortunately, many big law firms now have in-house graphic artists. Moreover, an entire industry has sprung up around courtroom and hearing room technology. These companies work with an advocacy team throughout each stage of the arbitration – often reading through the pleadings so as to conceptualise themes and brainstorm ideas. If you’re not a visual thinker, consider that your arbitrator may well be and is expecting to see them. More than three-quarters of surveyed arbitrators expressed a personal preference to ‘always’ or ‘usually’ require the parties to provide opposing counsel a reasonable time to review demonstrative exhibits.
The practitioner’s perspective: Use consultants, not associates
The key cost savings in using a consulting firm to undertake this work is a reduction in associate time. Clients are naturally reticent to engage yet another vendor when they have already staked considerable resources in the advocacy team. Counsel should work to educate clients on the potential costs savings. It makes little sense in a billable-hours world to task someone with a legal education to prepare visual presentations. Of course, work expands to fill time and where associate resources have been saved by the retention of a hearing consulting firm, those resources must be redeployed thoughtfully.
‘The arbitrators will pay more attention to the screen than the speaker’
The last thing an advocate wants any of this material to do is to take away his or her voice or distract the arbitrators. The speaker is the centre, the focus and the message deliverer. By following the guidelines in the ‘Best practices’ section below, there will be no need to worry about competing with the slides; rather, the slides will work to enhance the overall message of the oral advocacy.
‘Hearing room technology is too expensive’
A common misconception is that these types of services are too costly and reserved for use only in very large cases. In fact, the argument can be made that the use of technology brings efficiency and reduces costs.
First, using a technology consultant to create an electronic database of exhibits saves a tremendous amount of time in the hearing room because the exhibits are instantly accessible. The paralegal or junior associate whose sole task during a hearing day was to assist witnesses in identifying the correct bundle tab and page number is now surplus to requirements.
Second, while many will take time to make the switch from paper bundles entirely, those who embrace the paper-free hearing will see a huge reduction in printing and shipping costs. Of course, this is subject to obtaining the tribunal’s approval of this approach.
Third, there are consulting firms dedicated to visual communication in the legal industry (see below for further discussion on this). Do not bog associates down by having them create PowerPoint slides – their charge-out rates are too high to be tasked with something for which they are seldom skilled in the first instance. By engaging an external firm, you will be hiring a trusted expert in the field whose hourly rate is less than that of the associate, and can get the work done twice as fast. Clients understand this.
Fourth, the technology operator can be viewed as neutral and is often used by both parties to display documents on the screen. For this reason, the cost of the technology operator can be divided between the parties.
What not to do
Do not overuse
It is to be hoped that arbitrators will have worked through the parties’ written submissions before a hearing and will prefer to be presented only with the important and relevant evidence in a succinct and well-reasoned manner. To quote Stanimir Alexandrov:
Typically I do not find it helpful for counsel deliberately to provide more PowerPoint slides than they intend to cover in their presentation. Counsel may hope that by submitting more slides than are discussed during the oral argument, they are getting an ‘extra’ submission of material to which the tribunal may refer after the hearing concludes.
By the hearing stage, arbitrators have been presented with an abundance of evidence through submissions. Do not think of the presentation as an extra submission, but rather a very simple guide to the most important evidence, which an arbitrator can reflect on afterwards as a quick refresher of key points.
Presentations have considerable value but can be counterproductive if overused. A useful rule of thumb is one slide per two minutes of oral presentation. Using this logic, a one-hour presentation would contain no more than 30 slides.
Going against my best advice, the lead advocate at a hearing insisted on adding every useful supporting exhibit to his opening slide deck. I advised that he create one slide using the strongest exhibit in evidence and simply cite to the other relevant, related exhibits. In his opinion, this made his case appear weak and he wanted to demonstrate to the tribunal that there was an ‘overwhelming amount of evidence’ to support his client’s case. As well as adding a slide for each exhibit, he also insisted that, behind each slide, it was important to include a full hard copy of the exhibit cited in the previous slide in the binders that were being created for each of the tribunal members. This quickly became a logistical nightmare when the final product was more than 800 printed pages. Needless to say, the tribunal was far from impressed.
Adding hard copies of cited exhibits is not a bad idea in theory; however, it is only advised when one can limit the number of documents used in a slide deck.
Do not complicate
Similarly to the foregoing, arbitrators know how to analyse a case, identify crucial issues and focus on them. It is important to remember that if everything is highlighted, then nothing is highlighted. Never lose sight of the case theme by adding too much detail to the presentation.
Do not read from the slides
Simply typing the argument onto slides does not create an effective presentation. Well-placed summary slides, including simplified bullet points, are great if used sparingly, but putting text on a slide does not turn spoken word into a visual image. Great visuals are as effective as a shot of espresso. On the other hand, too many text-heavy slides can put anyone to sleep.
The use of clear and simple demonstratives, such as maps showing geographical location, photos showing the relevant site, goods and problems, and timelines and graphs showing relevant stages and actions taken, can simplify and form a record for the tribunal’s deliberations.– Julian Lew QC, Twenty Essex Chambers
Do not tailor the message to fit the slides
Write the outline first. An effective presentation requires a compelling story. Outline your ideas before you begin to develop your slides. Once the spoken message is clear, then, and only then, should the process of adding visuals to key points in the outline begin. In this way you will stay focused and on-track with your message.
Visual presentations help to illustrate the narrative of the case and strategically place the most important evidence. The opening statement is the best opportunity to present a cohesive narrative to the tribunal – use the presentation to further the objectives of your oral advocacy.
Generally, there are two ways in which persuasive information can be processed: centrally and peripherally. Arbitrators typically process information centrally. They are analytical thinkers. Rather than using visuals to impress the audience, the persuasive appeal of visuals to an analytical thinker is using them to reduce the complexity of the subject matter.
Know your audience
Build the most compelling story to reach all arbitrators. Know the baseline attitudes and experiences.
Understand that the credibility and persuasiveness of the presentation is not only about what is presented, but how it is presented. Are you organised? Prepared? Concise? When your presentation exudes these qualities, it gives merit to your argument. It projects confidence and adds to your professional image.
There is no universally accepted correct style of presenting. Be true to your own voice. Be one with the message and use visuals to support and enhance that message.
Nothing makes any presentation – especially an interactive one – more fluid than good preparation. An underprepared speaker does not present the image of being in control of the presentation. With everything else going on during the lead-up to the hearing, counsel will sometimes put off practising with the technology until the very last minute. The best way to prepare is to work closely with the technology consultant. Be aware of how they go through documents and annotate them. Always do a dry run so that you feel comfortable using the technology and interacting with the person running the presentation system.
Make sure the technology consultant tests the equipment to ensure the whole team is comfortable with the set-up. It is also important that the person who will be running the presentation clicks through the slides to check that all the images will appear as expected during the hearing. Do not forget to print copies of presentations for the tribunal and opposing counsel.
Considerations for hiring litigation consultants
Not all attorneys are created equal. One would not hire an estate planning attorney to litigate an oil and gas matter. The same can be said when looking for a litigation consulting firm. An attorney would not hire an artist who is good at advertising to create slides for a hearing; it is a different form of communication. Specifically, you want a firm that has worked with different triers-of-fact and knows from experience the different types of things to which arbitrators will respond.
Seasoned consultants are experts in their respective service areas and have a vested interest in the cases on which they consult. Frankly, they have been to more hearings than most counsel. For instance, I attend an arbitration hearing on average once every two weeks. A good consultant has worked with all types of attorneys, on all kinds of cases. Find someone who knows the specific arbitrators’ preferences. Hire a consultant who ‘gets it’. Ask them to explain their ability to understand a case quickly and to easily digest complex information and legal argument.
Litigation is not a nine-to-five business. Responsiveness is critical. Ideally, the advocacy team should begin working with a litigation consulting firm at least four weeks before the hearing. However, a consulting firm with the proper resources can meet the needs and manage the deadlines even at the eleventh hour.
Pick a firm that will understand your vision and case theory and help to move it along. Do not look for someone who can only make pretty pictures. To differentiate your argument from that of the opposition, you need to be creative, clear and be able to develop themes and interpret complex concepts so that the members of the tribunal have the information they need. Find someone who can look at your case with a fresh perspective, identify areas where the tribunal may struggle with the information and then develop graphics to overcome that.
The ability to work together may be the most important. It is absolutely necessary to find someone who makes you and the rest of the trial team feel comfortable. There is an inverse correlation between preparing for a hearing and the amount of sleep one gets. Find someone whose attitude will be an asset to the team, not a hindrance, at 3am on the day the hearing opens.
As noted, the arbitration market’s reluctance to embrace hearing room technology is slowly receding. Naturally, in a hearing where one faces opposing counsel effectively deploying hearing technology, one’s own presentation is likely to pale in comparison. What is more, one is likely to come under significant pressure from one’s own client, who will invariably ask: ‘Why didn’t we do that?’
Notably, several arbitration practitioners who were approached to participate in putting together this chapter demurred on the basis that they think the technology is an unnecessary distraction. It is true that the misuse of hearing room technology has the power to confuse or seem a bit too rehearsed if not used appropriately. However, these advocates clearly have not seen it used appropriately and efficiently. It is natural for people to be apprehensive of new means of carrying out tasks that have been done the same way for hundreds of years. However, a failure to adapt to the use of technology in the hearing room carries great risk for one’s case and, ultimately, one’s business.
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