Comments on 5 Types of Argument and Briefs

I haven't read the Stacie Strong article. It hasn't been posted yet and I don't know when I'll have time to write a blog this weekend. Besides, I think I might be glued to the article once I start researching or writing, so I thought I'd make a comment on the 5 Types of Argument and the VIS winning briefs.

Regarding the 5 Types of Argument, I've got to say I wish I would've thought to look at it while I worked on my brief last spring. The sad thing is that our professor added it to our booklist, but I guess I've learned my lesson. Refreshing myself on the 5 types was good, but what I enjoy even more about this book is that it has strategies to attack those types of arguments and even combination arguments. I feel like I've been given a whole arsenal of weapons. Let's just hope I know how to use them well.

What has stayed on my mind so far is the author's discussion of how the legal career is like Socrates' deconstructive teaching. In our effort to define legal concepts, we destroy any and every definition put to us. Even though we don't do this alot in our presentations and briefs, we certainly do it as we prepare for them. We have to keep a balanced and impartial mind, and look at the issues from both sides. However, thinking of every way in which our arguments can be undone helps us stregthen them. So in the process of undoing, we do.

My first reaction upon looking at the briefs was, "Wow, I better get myself out of this mess before it gets any worse." But then I realized that although they seem lengthy, they are definitely nothing that we are not capable of doing, especially considering that about half of the brief is things like table of contents, references, etc.

But then again, isn't it more difficult to make an efficient, concise brief, than a lengthy and poorly written one?

Also, I noticed that every team had different styles. While some seemed to stick to dividing their arguments between procedural, jurisdicitional, and substantive issues, while the others divided it into its major arguments. You can also notice subtle cultural differences, when you read things such as, "request for relief" and "prayer for relief" in different briefs. Basically, this means we can do things our way and still win.

Looking forward to working with you guys and seeing what our work product will be. While it's easy to get competetive, I think it's best if we all keep in mind that our chances of winning at the VIS are only increased if we all help bring the best out of each other. Sounds cheesy, but if we really want to give UT international recognition, we have to remember it.


*Edit*

I enjoyed the Strong article because it's a nice refresher on how international arbitration is a distinct world with its own set of rules. An attorney must be prepared to work with all types of sources, and not focus as much on the caselaw. Pretty much, an attorney has to be more well-rounded.

Access to two accounts....

Ok, I read Ji Nin's and Tim Roy's blogs, but could not comment on them. Neither could I comment on Emmanuel's. E-blogger keeps saying I don't have access to the site, so maybe their privacy settings are set too high or blogger hates me. Anyway, here are my responses to their blogs:

To Ji Nin:
Your post made me scram for the latest issue of Glamour sitting in our living room. Hillary Clinton was asked, "You probably have to walk into a lot of rooms full of sexist guys. How do you work with leaders like that?

To which she responded:

"You just have to figure out what you're trying to accomplish."
To paraphrase her a bit, she also says that she tries to find common ground with her male counterparts. "I understand the pressures of politics on leaders... I was in politics. I've won elections and lost elections..."  
I don't know if this adds much to the conversation. But I agree with Hillary that the best we can do as women is try not to make ourselves any more different than we already are. We should try to present things in our narrative that point out what we share in common with males in the business and legal worlds.
But does this mean that we should only wear pant suits to keep ourselves more like the men, or wear only skirts, in compliance with sexist views toward women? How far do you go tring to find that common ground to allow you to get your point across? I think I've rambled on... sorry.



To Tim:
Tim, thanks for the post. It really helped clarify things. I just have one question. You said, "I also have to argue (ii) that bringing the issue to court is not a violation of the rules. That would be an issue of clause interpretation, and also choice of law." So in an argument regarding only procedural issues, you would only say that there is no violation of the rules, and nothing else, because anything else would be substantive?

Opening and Closing Arguments

First of all, I want to apologize for the late post. I've been I'll these past couple of days, and had vertigo, so I really could not read, much less write. Hopefully I'll be good to go by Wednesday.

I really enjoyed Chapters 14 and 19 because it put words to what several of us have conceptualized about oral arguments over the years. The most important point, at least for me, out of chapter 14 was "STRUCTURE STRUCTURE STRUCTURE." Having a simple narration that conveys your arguments effectively is key to making a good opening argument.

The chapter mentions that each attorney can use an outline that provides them with enough detail to allow them to look at the arbitrators, and only look at their outline to make sure that they're hitting the key points. Being a reading/writing person, I know that just writing an outline will not do for me. I actually have to write down my whole argument, read it aloud to myself several times, and then create an outline from what I wrote. It may seem like extra work, but I think it makes it much easier for me to remember the necessary information. In the end though, everyone knows what works best for them.

The reading also pointed out things we may not have thought about before. For example, concerning your pace, it is better that you slow down or completely pause if the arbitrators are trying to locate a document you referred them to or they're writing alot. Also, you have to be aware of transnational communication issues, such as translation and the interpretation of your body language. Having done a little legal translation and interpretation in the past, I know that it is of great help to provide the translator/interpreter with the legal terms and points you will be discussing in your argument. Otherwise, your message might be lost in translation.

You also want to be credible, and to this end, many of us from the western countries like to look the arbitrators in the eye. However, the reading points out that other cultures might see this as a sign of disrespect. Obviously, this can make a HUGE difference to the credibility and acceptance of your argument.

I was surprised to learn that in arbitration, the closing arguments should not be a simple summary of your arguments. It should include information that reminds the arbitrators of specific facts which support specific arguments.

But I am left wondering, why are counsels given 2-3 weeks to submit their closing arguments if these are in writing? I don't see why it takes so long, considering they have all discussed the facts, evidence, and legal arguments already.

A few notes and thoughts on the CISG initial reading...

Right away, the author notes that the CISG governs only three areas: conclusion of the contract, obligations of the seller including the respective remedies of the buyer, and the obligations of the buyer including the respective remedies of the seller. Having not done much contract law since my traumatizing experience in the spring with Professor Kadens, I initially assumed this was enough. Eventually, I came to the realization that very important things were left out.

However, I do appreciate the CISG alot more than the other organizations which we have read about, because the convention seems to recognize the neutrality that may be attained through uniformity. CISG’s  principle of autonomous interpretation and the international character help promote this uniformity. Domestic standards of interpretation do not suffice in the international business arena, and this is awesome because it eliminates at least a little bit of variation amongst different countries.

Neverthe less, there remains the commitment to honoring the parties' intentions, as stated in Art. 8(1): Subjective meaning will be used to interpret the intention behind the statements or conduct of parties when they all intended the same meaning – subjective meeting of the minds - and when there is no other way that the parties could have understood more than one meaning.  In case these alternatives fail, Art. 8(2) gives us a familiar standard: If the first options fail, then resort to objective interpretation based on what reasonable person would’ve thought. Finally, I like the fact that negotiations and subsequent actions b parties will be considered to determine what the parties thought was the meaning of the contract. The CISG excludes parol evidence rule, which has seemed have lost its objective over time anyway. Quite frankly, I found it an archaic rule - another obstacle for attorneys to overcome.

Nevertheless, CISG has received criticism for trying to apply univormity. Particularly, it has been criticized for applying the Incoterms to contracts, but that promotes uniformity, and easier application of the law, as shown by the German courts. Furthermore, there is a reasonable approach to the desire for uniformity. The CISG does not push for any “world languages,” merely that the parties understand the language in which they read terms, particularly standard terms.

Furthermore, the CISG attempts to "fill in the gaps" and thus promote uniformity through the gap filling principles of the CISG Art. 7(2). It states that the gaps are to be filled according the CISG general principles, and if these don’t exist, according the private international law – but not domestic law. UNIDROIT Principles may be used only to support the CISG’s general principles.

However, this is precisely where I begin to see vagueness... because the principles may not be written, they may either be invented or "erased." Different rules may end up being applied to different situations.

Finally, I go back to my initial point - that which the CISG does not cover. Art. 4. CISG: "CISG governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. CISG is not concerned with the validity of the contract or of any of its provisions or of any usage. Nor is it concerned with the effect which the contract may have on the property in the goods sold." Domestic remedies are the remedies usually proscribed to those not covered by the CISG, so this leads to lack in uniformity in several areas, including important areas such as tort and contract defenses such as fraud. Indeed these are important matters that I think the CISG should address, considering how fundamental they are to contracts law.

Potential Inconsistencies in Arbitration

In one of my prior posts, I referred to how cumbersome the arbitration process in the international arena is becoming. Redfern and Hunter's chapters describing the laws governing arbitration add to my frustration with the process. While ideally international arbitration is supposed to be binding, in reality it is the superior tribunal's ruling which is binding... supposedly. The losing party can still appeal in the "seat" of the arbitration proceedings.

Furthermore, this whole process is complicated by the fact that no uniform set of procedural rules has been established in international arbitration. Indeed, the reading indicates that such rules might be impossible given the different cultural and educational backgrounds of all legal professionals. However, if delocalization, with its more sensible idea of having only one procedural law - that of the place of enforcement, cannot be uniformily agreed upon, what hope do other procedures have? Remember, these procedures come with the already familiar problems of distinguishing between procedural (lex arbitri) and substantive law. They're further complicated when for some reason or another, some attorneys decide to use the procedural rules of one state, while located in another state with its own procedudral mandates, and at the same time having to apply the original substantive law that is involved. No wonder there are appeals processes. The whole process is too convulated.

Greater uniformity is needed in the arbitration process. Otherwise, losing parties will keep finding procedural, substantive, or adjudicative grounds to appeal. With the extensive appeals opportunities, what is the point of arbitration other than privacy? Finally, we run into the same problems of enforcement, with commercial pressures and the state systems having to get involved - options which could've been used in the first place. In the end, the parties can forum shop to find a state that will enforce awards in both in the arbitration world, with the support of the NY Convention, and in the states' judiciaries.