United States: GAR The Guide To Advocacy - Edition 5 - Cultural Considerations: United States

Amal Bouchenaki¹

In a recent publication suggesting tools for effective ‘global communicators', the authors, two faculty members at NYU School of Professional Studies, defined culture as ‘patterns of thinking and doing'.³ According to the authors, successful communication across cultures entails ‘recognizing the communication patterns between us'.⁴ ‘Recognizing these patterns', they explain, ‘is our key to communication success.'5 They mention new research that ‘shows that cultivating skills with a certain cognitive flexibility is what unlocks the skills of cultural competence – a global mindset'.⁶

In our office, we practise in a team of international arbitration practitioners trained in at least nine different jurisdictions. We regularly appear before tribunals where not one co-arbitrator was trained in the same jurisdiction as the other. Awareness of the legal cultures that inform our team's, our opponents' and our adjudicators' approaches to advocacy aims precisely at developing the type of cognitive flexibility needed to ‘transcend legal, cultural, contextual and even linguistic barriers to secure a favourable outcome for one's client'.⁷

In our office, we practise in a team of international arbitration practitioners trained in at least nine different jurisdictions. We regularly appear before tribunals where not one co-arbitrator was trained in the same jurisdiction as the other. Awareness of the legal cultures that inform our team's, our opponents' and our adjudicators' approaches to advocacy aims precisely at developing the type of cognitive flexibility needed to ‘transcend legal, cultural, contextual and even linguistic barriers to secure a favourable outcome for one's client'.⁷

The corresponding chapter in the previous edition offered a US perspective on best practices in cross-examination and other aspects of oral advocacy. I will not repeat those considerations, which remain valid and relevant. This chapter provides some of the procedural, ethical and societal considerations against which the cognitive framework of advocates in the United States has developed. 

Procedural considerations

In a 1950 speech to the New York City Bar Association about the Basic Rules of Pleading,8 Professor Jerome Michael took stock of, and set the context for, how advocacy developed in the United States:

[I]n our courts, when we are at peace or at relative peace, we conduct our controversies by way of language. It follows, of course, that if you want to understand procedural law, you must understand the intellectual activities.

What, then, are those activities? In general they consist of forming issues of law and of fact; of trying issues of law by argumentation, and of deciding them by deliberation; of trying issues of fact by evidence, and of deciding them by a calculation of probabilities; and, finally, of determining the legal consequences of the decisions of the issues of law and of fact.⁹

The decision-making process in the United States, at least in the first instance, is therefore structured around three main stages:

• First, legal issues are formulated with the assumption that the facts alleged are true and that their accuracy can be established.
• Second, each party must prove its case or disprove its opponent's case through an evidentiary phase where the parties debate the admissibility of documentary and witness evidence, and the credibility of the proof presented to a judge and, when applicable, a jury.
• Third, the parties debate the legal consequences that they wish the adjudicators to draw from the facts and the law that will have been brought to their attention. 

The above outline of the stages of the decision-making process is subject to the specific rules of the trial court. Moreover, an appellate court will in most cases review evidentiary findings of the lower court for clear error, which tends to truncate the above stages to focus on issues of law. But, from the point of view of identifying ‘patterns of doing and thinking,' US advocacy and the rules of evidence before the US courts are nevertheless shaped by this three-stage structure of decision-making. ‘The conventions of the Anglo-American law of evidence are historically related to the development of the jury system . . . .'¹⁰

The function of the first procedural stage is to lay out and formulate what is to be proved and disproved during the evidentiary phase that follows. But during this stage, the ‘truth' of the facts alleged is not tested. Rather, defendants would typically seek to identify and then convince the court of fundamental defects in the legal theory of the plaintiff's case that prevent the case from proceeding to the evidentiary phase. This entails both written pleadings and oral advocacy before a professional judge. At this stage, written and oral

Effective oral advocacy generally does not require standing

It is not uncommon for US lawyers, particularly those who are relative newcomers to international arbitration proceedings, to leave the counsel's table and to stand at a podium facing the arbitrators when delivering oral opening and closing statements. Usually, the lawyer's presentation is accompanied by a slick (and frequently lengthy) PowerPoint presentation. I have never seen lawyers of other nationalities make their oral submissions from a standing position (unless possibly compelled to do so for medical reasons), although a fondness for PowerPoint slides is not uniquely American, and their use today in international arbitration proceedings is widespread.

Now, I have never seen an international arbitral tribunal object to a US lawyer standing and facing the tribunal, and I have no particular issue with an advocate wishing to do so. However, if US lawyers believe that by adopting a vertical posture, their oral advocacy will be more effective in an international arbitration, I would have little hesitancy in disabusing them of that notion. Effective oral advocacy in an international arbitration generally does not require standing and can be accomplished just as effectively sitting down. Moreover, standing tends to add a layer of formality to a presentation in a proceeding at which the advocate should be seeking to establish a comfortable and relatively informal rapport with his or her audience (the tribunal), rather than delivering a formal speech to them.

advocacy would not typically revolve around issues of fact, for example, the facts pleaded by the plaintiff are accepted as true for purposes of a motion to dismiss, and to prevail on a motion for summary judgment, the movant must demonstrate that there is no genuine dispute as to any material fact on which the relevant claim rests. This phase consists of arguing the sufficiency of the legal elements of the claims before the court.

The second stage is the trial. It ensues if the plaintiff's case survives this first stage. Litigation in the United States has developed around the principles that ‘a trial is a legal proceeding in which a legal tribunal acquires knowledge',11 and that ‘it is often unjust to resolve controversies on the pleadings because of the very frequent discrepancy between what can be alleged and what can be proved.'12 The US system of resolution of controversies is therefore rooted in the burden that falls on each party to demonstrate to the court, and the jury when applicable, the truth of their respective allegations.

Some advocates may fear that a judge will feel patronized if the lawyer tries to explain the case to him in words of one syllable. Fear not; in my thirty years of judging, I have never encountered a judge who took umbrage at being spoon-fed by the lawyers.¹³

Footnotes

1 Amal Bouchenaki is a partner at Herbert Smith Freehills. The author wishes to thank Christopher Boyd, an associate in the firm's New York office, for his assistance.

2 Richard A Posner, Judicial Opinions and Appellate Advocacy in Federal Courts - One Judge's Views, 51 Duquesne Law Review 3 (2013), 35.

3 Raúl Sánchez and Dan Bullock, How to Communicate Effectively with Anyone, Anywhere, 2021, 141.

4 Id. at 141.

5 Id. at 142.

6 Id. at 166 (emphasis in original).

7 Introduction to 4th edition of The Guide to Advocacy

8 Jerome Michael, Basic Rules of Pleading, 5 REC. Ass'n B. CITY N.Y. 175 (1950), 175.

9 Id. at 176.

10 Jerome Michael & Mortimer J Adler, The Trial of An Issue of Fact: I, 34 Colum. L. Rev. (1934), 1235.

11 Id. at 1233.

12 Jerome Michael, Basic Rules of Pleading, 5 REC. Ass'n B. CITY N.Y. 175 (1950), 189.

13 Richard A Posner, Judicial Opinions and Appellate Advocacy in Federal Courts – One Judge's Views,

51 Duquesne Law Review 3 (2013), 36.

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Previously published by Global Arbitration Review

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