如何叱咤庭辩场？来自前Vis队长的advocacy经验分享

Original 法律竞赛法律竞赛 2022-10-05

收录于合集 #VIS 专精 88个

作者简介：

隅貌，“法律竞赛”编辑。

2021年，第2届FDI SZ Moot，教练，季军；

2020年，第1届FDI SZ Moot，队长，优秀辩手；

2019年，第17届贸仲杯，队员，团队二等奖（第9名）；

2019年，第16届Vis East，队长，最佳申诉方诉状提名；

2018年，第16届贸仲杯，队长，团队三等奖。

特别感谢北师大Vis Moot队伍为本文的写作提供的支持！

Table of Contents
I. Introduction of Time Allocation and Order of Speaking
II. Self-introductionIII. OpeningIV. Road MapV. Main Submission 1) Common skills 2) Particular skills for submission 3) Particular skills for counter-submissionVI. ConclusionVII. Rebuttal and Sur-rebuttalVIII. Question HandlingIX. Time ManagementX. Manner and Cooperation

Ⅰ

Introduction of

Time Allocation and Order of Speaking

The standard mode is that each speaker spends 14 minutes on the main pleadings, reserving 1 minute for rebuttal and sur-rebuttal. Counsel for Respondent will go first on the procedural parts, followed by counsel for Claimant, rebuttal and sur-rebuttal. After that, counsel for Claimant will speak on merits, followed by counsel for Respondent, rebuttal and sur-rebuttal. However, sometimes the time allocation, even the order of speaking, is subject to the willingness of arbitrators or negotiation of both teams. This usually happens in the CIETAC Cup, rarely in international rounds. Be flexible and take it easy.

There are several ways to introduce time allocation and order of speaking, choose one from the following proposals or just write a new version. Be sure that it is clear and easy to follow:

(1) Members of the tribunal, we have agreed that each counsel spends 14 minutes on the main pleadings, reserving/leaving 1 minute for rebuttal and sur-rebuttal. As for the order of speaking, Respondent will speak firstly on the procedural parts, followed by Claimant, rebuttal and sur-rebuttal. After that, Claimant will submit on merits, followed by Respondent, rebuttal and sur-rebuttal. (I personally like this one because it is easy to remember ^-^)

(2) Members of the tribunal, each counsel will allocate 14 minutes on the main pleadings and 1 minute on rebuttal or sur-rebuttal. Regarding the order of speaking, in the procedural parts, Respondent will begin first and then Claimant, followed by rebuttal and sur-rebuttal. As for the substantive parts, Claimant will submit first, followed by rebuttal and sur-rebuttal.

(3) Members of the tribunal, Respondent will begin first and spend 14 minutes on the procedural submissions. After that, Claimant will spend 13 minutes on the counter-submission, followed by Respondent’s 1-minute rebuttal and Claimant’s 2-minute sur-rebuttal. As for merits, Claimant will go first on a 14- minute submission, followed Respondent’s 14-minutes counter-submission and Claimant’s 1-minute rebuttal and Respondent’s 1-minute sur-rebuttal.

Ⅱ

Self-introduction

In this part, be fluent and make sure that your positions are clear. If you are responsible for the procedural parts, remember to introduce your co-counsel.

Here is an example of self-introduction for counsel responsible for the procedural parts:

May it please the tribunal, my name is Victoria. I appear here together with my co-counsel, Leonie, on behalf of Claimant, PHAR LAP ALLEVEMENTO, the seller in the case. I will proceed on the procedural parts and my co-counsel the substantive.

Here is an example of self-introduction for counsel responsible for the substantive parts:

May it please the tribunal, my name again is Leonie. As my co-counsel introduced, I will plead on the merits.

Here is an example of self-introduction for counsel responsible for substantive parts：

Please the tribunal, my name again is Leonie. As my co-counsel introduced, I will plead on the merits.

Ⅲ

Opening

Actually, different arbitrators may have different opinions on what is a good opening, even on whether an opening is needed. Since some arbitrators may not be familiar with the problem/record, a simple opening in favor of your position is preferred. Once you have decided to make an opening, try to make it impressive.

The following mode is to deal with the circumstance when you are confronted with an arbitrator or arbitrators who are not familiar with the problem, for example, they are lawyers and not coaches: The first speaker (usually counsel for Respondent responsible for the procedural parts) gives the detailed introduction of the facts, in a way supporting his or her own position. The second speaker (usually counsel of Claimant responsible for the procedural parts) deals with this part flexibly: (1) If the first speaker does not introduce the facts, then a detailed introduction in favor of the speaker’s position is preferred; (2) If the first speaker has an introduction, then a simple and responsive introduction is preferred. As for the third and fourth speakers (usually in the order of counsel of Claimant followed by counsel of Respondent, both responsible for the substantive parts), they can choose to do or not to do the opening. As I have mentioned, once you have decided to have one, keep it impressive.

When you are confronted with a bench composed of coaches, who are quite familiar with the problem, unless you are sure that your opening can impress the bench, do not spend too much time on introduction. In this situation, counsel responsible for merits may go straight on the submissions.

Example of openings (recordings of other teams may be more helpful than this example):

Before we start, Claimant would like to point out that Claimant has fulfilled all the obligations under the contract. Beyond that, Claimant even paid the tariff which should not be burdened by itself. Now, Respondent refused to perform the obligation and pay the tariff, which is not acceptable.

Ⅳ

Road map

Clearness itself will make your road map. Use bullet point to make it simple and easy to follow. Here are two points worth your attention, language and completeness.

Be mindful of the language you use and try to avoid ambiguity. For example, there are some differences between we submit that the evidence is admissible, which is the Partial Interim Award from another arbitration and we submit that the Partial Interim Award from another arbitration is admissible.

Make sure the sentence makes sense. For example, vagueness may be caused when you submit that the evidence is admissible. Things become different when you submit that the evidence, which is the Partial Interim Award from another arbitration, is admissible.

A sample road map is as follows:

In the procedural parts, we make two submissions: firstly, the tribunal has jurisdiction and powers to adapt the contract; secondly, Claimant is entitled to submit the evidence, which is the Partial Interim Award from another arbitration.

Ⅴ

Main Submission

A good and fluent main submission is one of the key factors contributing to a good submission. Another factor is Question Handling, which will be introduced in Part VII. Since submissions and counter-submissions share some common characters but have some differences, introduction of this part is divided into three sub-parts: common skills 1); particular skills for submission 2); particular skills for counter-submission 3).

You will not get a high score without the bench’s understanding. Therefore, one of the most important things is to make your arguments easy to follow. Here are some suggestions, which may help to get yourself across the arbitrators.

Firstly, use short sentences. Avoid using complicated phrases or clauses. English is not the mother language of many arbitrators. Therefore, simple and accurate expression is always preferred. However, do not be constrained by this suggestion. Sometimes, simple English will help to establish your arguments clearly. On this occasion, do not be afraid to use them.

Secondly, use specific wordings or phrases to improve the cohesion/coherence of your argument. Two examples are followed: When you are moving to the next submission, say unless I may further assist the tribunal on this issue, I will now move on to address our second submission; when you have to make concessions, say we acknowledge that, but…/ that statement makes sense to some extent, but….

Thirdly, use bulletpoints. Where each point is short, this method will help to establish yourargument sharply and impressively. However, I personally do not recommend this method where some points cost a lot of time to explain.

After all, use the expressions that make you feel comfortable. For example, say does not have jurisdiction rather than lacks jurisdiction.

Another important skill is to make a careful alternative argument. You are recommended to make concessions when you are trapped by difficult questions from the tribunal and already spent a lot of time on explaining the same point. However, do not switch to an alternative argument immediately when you are confronted with a difficult question. Arbitrators ask questions out of interests. They prefer answers that can solve their puzzles directly. Therefore, avoid saying if you are not convinced by this standard/argument, …/Alternatively, even if…right after you got a question. Instead, give another point to support the same argument, which makes you more persuasive and evidences the team’s good preparation. If the arbitrators still cannot be convinced and ask another question, make a simple explanation then advance the alternative argument.

The main task for the first speaker for procedure/merits is to establish the argument within time limitation. Therefore, in addition to the requirement of clearness, try to submit the strongest points in all possible submissions you have thought of, rather than attempt to cover all aspects.

The main task for the second speaker in procedure/merits is to respond to the opposing counsel’s argument. Therefore, responsiveness is the most crucial factor of a good counter-submission. Responsiveness requires good reasonings. For example, if the opposing counsel raises a standard that is not in favor of your position and you have another standard in favor of your position, submit your standard and give reasons. Persuade the tribunal to use your standard rather than the opposing counsel’s. Another example is, if the opposing counsel submits the application of a principle or doctrine that is not in favor of your position, object to the application of that principle/doctrine and give reasons. Reasons are the weapons.

However, do not forget to establish your own argument. Your final goal is to persuade the tribunal to support your argument, yet in a responsive way within your own framework. So, when you give reasons, do not just cover the reasons why your opposing counsel is “wrong”, but also why you are “right”.

Ⅵ

Conclusion

Conclusion, like a road map, is to make your argument clear. Unlike road maps, a good conclusion requires a summary of the reasons. In the road map, you can just submit that the tribunal has jurisdiction and powers to adapt the contract. While in the conclusion part, submit that the tribunal has jurisdiction and powers to adapt the contract, because the arbitration agreement combined with the hardship clause constitutes an express conferral of power.

Ⅶ

Rebuttal and Sur-rebuttal

Short, sharp and penetrative. This is an arbitrator’s comment on a good rebuttal. A good sur-rebuttal should also be equipped with these three characters. Therefore, try to shorten and simplify each point of your rebuttal/sur-rebuttal.

Usually, a rebuttal that strikes down your opposing counsel’s strongest point is sharp and cut-throat. If possible, take advantage of your time and make 2 points in rebuttal. Always remember, rebuttal is the last chance to impress the tribunal. So, unless in extreme situations, never waive your right to rebut.

Ⅷ

Question Handling

As mentioned above, besides the main submission, question handling is the other most important part of the scoring system.

Most questions from arbitrators could be prepared well before the oral hearings. However, sometimes, it is not easy to understand arbitrator’s questions. Even though you understand them quite well, to answer the question directly and smartly also requires experience and skills.

Here are two suggestions regarding how to better understand the arbitrator’s questions. The first is to train your listening and be as familiar with the issues and relevant facts as possible. The second is don’t be afraid to ask for clarifications if you are confused. Feel free to use phrases like could you please explain your question and if I understand your question correctly, you mean that…. However, do not use this tactic too often. If the arbitrator has already clarified the same question for more than twice and you still cannot understand, apologize or give skillful answers, then go on.

Regarding how to answer arbitrators’ questions directly, actually, it needs training. The following skills may be helpful: (1) If the arbitrators give a general question, answer YES, NO or IT DEPENDS firstly and give reasons with bullet points;
(2) If the arbitrators ask for reasons, such as why…, then give reasons by bullet points directly;
(3) If the arbitrators ask for comparison between cases or doctrines, state the similarities by bullet points and the differences by bullet points respectively.

After all, there is no solid way on how to answer panels’ questions. However, good preparation will always help you.

Ⅸ

Time Management

Although the rules allow you to allocate your time as you want,I highly recommend you to spend equal time on each issue. However, a hot bench sometimes will not let you go to your next submission so easily. In this situation, only good preparation can help you deal with difficult questions and balance time management.

Remember to ask for more time when the time is running out. It is appropriate to ask for an extension of 30 seconds or 1 minute. Be smart when you ask for more time. Some arbitrators may seem to be restrictive on time, you should then ask for 1 minute at most; if the arbitrators seem to be generous, you could ask for 2 minutes. If your opposing counsel extends his or her submission to three more minutes, then ask for an equal extension.

Examples for asking more time:

(1) (30 or less seconds are left) Members of tribunal, I see my time is running out, may I have 1 more minute to answer your question/conclude my submission/summarize my submission?

(2) (Time is up) Members of tribunal, I see my time has run out, may I have 1 more minute to answer your question/conclude my submission/summarize my submission?

Ⅹ

Manner and cooperation

Keep your desk clean. Sit like a professional lawyer. Speak in a confident voice. Go on in a moderate pace. Avoid being aggressive. Be calm when you are faced with difficult questions.

Remember to assist your co-counsel, such as turning pages, time keeping, writing down the questions, and serving water.

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