Young Litigators seminar, Milan, September 2023: Advocacy do's and don'ts in international commercial disputes

David Karl Jandrasits
Schwärzler, Vaduz

On the occasion of the 4th IBA Litigation Committee Conference on Private International Law in Milan, on 14 September 2023, the IBA Young Litigators Forum presented a seminar on Advocacy. The seminar took place in the office premises of the firm ADVANT Nctm, which is the Italian member firm of ADVANT, a European association of independent law firms. 

The speakers were Ligia Popescu (Wolf Theiss, Bucharest), Saaman Pourghadiri (4 New Square Chambers, London), Shaman Kapoor (39 Essex Chambers, London), Rocco Rondi (BMG Avocats, Geneva) and Angelo Anglani (ADVANT Nctm, Rome). Among the panelists, Rocco Rondi in particular moderated the discussion and guided the seminar with questions as well as his own statements.

Angelo Anglani reminded of the importance of the Young Litigators Forum, whose members are the new generation and future of the international litigation community. Rocco Rondi then introduced the panelists and framed the term 'advocacy' for the audience. 

Ligia Popescu gave an overview of the different dimensions of Advocacy, namely narrative, oral and written, and also expressed her opinion that with regards to all of these: proper preparation is much more important than charisma and being a good show master at trial. In fact, she emphasized that knowing the facts of the case and the relevant law together with choosing a diligent case strategy are the basis for any kind of advocacy. 

Saaman Pourghadiri then focused on narrative advocacy and described it as the dimension of advocacy young lawyers have the most exposure to. In that regard, he highlighted the importance of having a clear sense about the story one wants to tell at trial. 

Following on directly from the previous speakers, Shaman Kapoor added that in his opinion, not only preparation but also regular practice is an important prerequisite for successful advocacy. In this context, he described that on the one hand, it can be helpful to be prepared for who the judge and the audience will be. On the other hand, he stressed the importance of establishing sign posts that indicate the answers or conclusions one wants the judge to make. These sign posts must be concise and precise and allow the judge to immediately understand the position of the one pleading. 

Angelo Anglani then moved on to oral advocacy, explaining that a skilled civil lawyer tries to proactively anticipate and specifically address the judge's view of the case, while Saaman Pourghadiri reminded that the best way to react to unexpected questions is preparation – the better you know the case, the better you can adapt and react in oral advocacy. 

On this topic, Shaman Kapoor shared his love for cross examinations with the participants and said that, for him, 'this is what dreams are made of'. He added two important pieces of advice: 1) cross examinations are all about leading questions - the judge needs to understand clearly when a question jumps to the next topic, and 2) every oral advocacy should start with a 'cage rattler', a strong statement that gets the attention of the judge and the audience. 

Concluding on the oral dimension of advocacy, Ligia Popescu reminded how important it is to leave one's private opinion and emotions out of the case and to remember that the only responsibility is to represent the client. She explicitly advised to be firm, articulate and responsive but not aggressive.

Moving on to the written dimension of advocacy, Rocco Rondi asked what is important to achieve effective written advocacy. Angelo Anglani shared his experience and emphasized, 'be brave and be brief'. It is essential to structure your argument with a beginning, body and conclusion, straight to the point. He reminded the participants that it usually takes more effort to write ten pages for an argument than fifty. 

Saaman Pourghadiri continued by explaining the importance of the international dimension of advocacy. He used examples to explain that the cultural differences of the persons involved in a process, and especially of witnesses, must be respected and advocacy must be adapted accordingly. Following this, all panellists shared their thoughts on the ethical aspects of advocacy from the perspective of their respective jurisdictions, discussing in particular the question of whether witnesses may or even should be contacted. The panellists came to very different conclusions, and it became clear that in some countries, it is almost impossible to contact a witness, in other countries it is at least possible to inform the witness why and on which topics he is expected to be a witness, and in yet other countries witnesses are literally prepared for their questioning by lawyers.

After a short break, the seminar moved on to the practical part where the participants were given a case study in advance and all participants were divided into four groups. In summary, the case study concerned a dispute between a bank based in England ('MPS') and an aircraft dealer based in Italy ('AdM') in connection with the sale and financing of a private jet to a private buyer resident in Monaco ('Mr Smith'). 

The groups had a few minutes to read the facts and briefly discuss the case together. Then the four groups were divided into two groups representing the plaintiff and two groups acting as the defendant's lawyer, while the panel served as a panel of judges. The aim of the teamwork and the task for the groups was to present the arguments of the represented party to the panellists/judges in their opening statements and possibly by setting sign posts, as in a moot court. Each of the four groups, represented by their spokesperson, had a few minutes to present their opening statements, with the panellists asking questions in their role as judges and trying to test the argumentation. After each opening statement, the performance of the four spokespersons was discussed among all participants and the panellists gave valuable inputs and advice on how the opening statements could have been improved. In the practical part, the participants were able to apply the panellists' helpful advice from the theoretical part of the programme and thus obtain a lot of valuable knowledge about advocacy and its many aspects and take it with them for their future as litigators.