Advocacy Techniques in International Arbitration and Litigation
3.5 MCLE Credits: 3.0 Skills, 0.5 Areas of Professional Practice
Live and Webcast
NYSBA Member: $150 | Non-member: $125
8:30 a.m. – 9:00 a.m. Registration
9:00 a.m. – 9:50 a.m. Organizing the Case and Knowing Your Audience
Facts win cases. Common law advocates hear this refrain often; for civil code advocates, it may be a new concept. This program will discuss the importance of a factual investigation and will identify simple and straightforward means, both formal and informal, of collecting facts. A colleague once said, “Just go knock on his door,” which was an eye-opener. In the United States, broad discovery rules and 28 U.S.C.§ 1782 are investigative tools, and from the United States, the Hague Convention on the Taking of Evidence Abroad, letters rogatory, and local rules and practice reach abroad.
The program will use the case of Minpeco S.A. v. Nelson Bunker Hunt as a prime example. We will recounts the six-month jury trial against Texas oil billionaires and Saudi royalty for manipulating silver prices in 1979-80. Minepco S.A. v. Nelson Bunker Hunt, 718 F. Supp. 168 (SDNY 1988). The scheme and its consequences were a major historic event when silver prices rose from $6 to $51 per ounce before crashing back to $10. The crash led to the first too-big-to-fail bailout engineered by Fed Chairman Paul Volcker who feared that the failure of Merrill Lynch, Bache & Co. and major banks might lead to economic havoc. The jury awarded a $197 million treble damage verdict for Minpeco. The extensive worldwide investigation and formal pretrial discovery gave the plaintiff a superior understanding of the facts, which was an advantage throughout the trial.
Case themes are a key to winning. The program will discuss how to develop a winning theme. The Minpeco opening included, “I described their scheme in stark terms: ‘[w]e’re not talking about large corporations. We’re not talking about a small country. We are talking about a group of privileged men who used their power and influence to push up the price of silver illegally . . . We will show they [used] their incredible fortunes with an utter contempt for the very legal and economic systems that were so very good to them.’” The program will discuss whether the theme was sufficient, what additional elements were added based upon pretrial research, and what was the defendants’ responses, including its “broad daylight theory” sarcastic description of plaintiff’s case. The program will invite a discussion of how these themes played out during the silver trial and draw on other cases – like the defense of Peru in $10 billion in lawsuits worldwide brought by 180 financial institutions to recover defaulted loans.
1.0 Credit in Skills
9:50 a.m. – 10:15 a.m. Psychological Impact of Procedure
During a discussion among experienced trial and arbitration advocates, a barrister once complained that written direct examinations – which are the norm in international arbitration and English civil practice – let the respondent take over the trial or merits hearing. The program will discuss the impact of psychological concepts of primacy, recency, experience, and biases on case planning. Particularly in international arbitration, the parties can negotiate the procedures for the written submissions and oral testimony. A good advocate will consider the impact of psychological factors on the outcome of the case.
0.5 Credit in Areas of Professional Practice
10:15 a.m. – 10:25 a.m. Break
10:25 a.m. – 11:15 a.m. Telling Your Story – Direct Examination
The heart of the matter for the plaintiff is the presentation of its case. The program will discuss the basic elements of telling a story directed at the audience – judge, jury or arbitrator – and the techniques for direct examination. The program will review the direct examination of Bunker Hunt in an effort to portray him as an ordinary, misunderstood billionaire who perhaps bought too much silver as an investment against inflation and the vagaries of expropriation that he had faced in one of the largest oil discoveries in Libya in the 1970s. We will compare the approach the defense took with its key witness to the direct examination of Ismael Fonseca, Peru’s woe begotten silver futures trader. These were two contrasting styles from which many lessons will be drawn.
1.0 Credit in Skills
11:15 p.m. – 12:05 p.m. Purpose and Art of Cross-Examination
Cross-examination is one of the most difficult skills for a trial lawyer and a controversial practice of international arbitration cases. The problem for many advocates starts with a misunderstanding of the purposes of cross-examination, which the program will examine, and then continue with examples of techniques drawn from real cross examinations by such masters as Peter Fleming in the Minpeco trial and others.
1.0 Credit in Skills
12:05 p.m. – 12:15 p.m. Q&As
Speaker: Mark A. Cymrot, Esq. | Partner, BakerHostetler LLP