Author: Amanda J. Lee[1]
| Jurisdictions: United States England and Wales |
Topics: Diversity Young Lawyer Rule Procedure States as Parties |
“Old lawyers never die—they just lose their appeal.”[2]
The counsel of today are the arbitrators of tomorrow.[3] Yet one cannot become a great advocate, or, in due course, a great arbitrator, by watching from the sidelines. Opportunities to address a tribunal or a court are worth their weight in gold, and many young and diverse counsel have earned the opportunity to come off the bench and get in the game.
Supportive colleagues who are prepared to champion junior advocates, and clients who are prepared to put their faith in them and their abilities, are required. Perhaps more art than science, the path to becoming a great advocate is paved with lessons learned on your feet. Yet, it is primarily domestic courts, not arbitral tribunals, and institutions, that presently appear to be leading the way in championing junior advocates.
Encouragement from the English Commercial Court
A case in point: the new edition of the English Commercial Court Guide, which articulates the procedures that parties and counsel must follow when bringing proceedings in the Commercial and Admiralty Courts in England and Wales, expressly identifies situations when junior advocates may be best placed to assist the Court.[4] The Commercial Court Guide actively encourages the participation of junior advocates in proceedings before the English Commercial Court and provides examples of when a junior advocate may be well-placed to take the lead in assisting the court. Paragraph J8.7 states:
Where a party is represented by more than one advocate at the trial, the advocates may share the oral advocacy, although the court’s permission is required for more than one advocate to cross-examine the same witness. The Court encourages oral advocacy to be undertaken by junior advocates.[5]
In particular, the Case Management Conference is highlighted as a potential opportunity for junior advocates to assist the Court:
Parties should consider in every case (a) whether attendance by the more (or most) senior advocates instructed in the case is reasonably required, and (b) whether, even where that is the position, at least some of the matters arising may appropriately be dealt with by the more (or most) junior advocates.[6]
Disclosure issues are specifically identified as “a good example of issues on which it may be appropriate and helpful for the argument to be prepared and undertaken by a junior advocate”,[7] with “oral argument about costs or other consequential matters” listed as a further opportunity, when appropriate.[8]
New York Leads the Way
The evolving approach of the English courts is welcome and consistent with developments in the USA. Similar policies have been adopted by numerous New York courts and individual judges in recent years. For example, the well-established policy of the Bankruptcy Court for the Eastern District of New York, adopted in May 2018, provides:
[W]here junior lawyers are familiar with the matter under consideration, but are not experienced in arguing before a court, they should be encouraged to participate. In such circumstances, where it creates an opportunity for a junior lawyer to argue, this Court is amenable to permitting more than one lawyer to argue for a party.[9]
Individual judges in New York have also championed the educational benefits of providing opportunities for junior advocates to conduct oral advocacy and noted the potential benefits for diversity at the commercial bar. Notably, in his Part Rules, Justice Joel M. Cohen of the Supreme Court of the State of New York, Commercial Division expressly encourages both the participation of historically underrepresented and junior advocates, and seeks to incentivize parties and legal teams to facilitate their participation, providing:
“The Court strongly encourages substantive participation in court proceedings by women and diverse lawyers, who historically have been underrepresented in the commercial bar. The Court urges litigants to be mindful of in-court advocacy opportunities for such lawyers who have not previously had substantial court experience in commercial cases, as well as less experienced lawyers generally (i.e., lawyers practicing for five years or less). A representation that oral argument on a motion will be handled or shared by such a lawyer will weigh in favor of holding a hearing when otherwise the motion would be decided on the papers.”[10]
Providing a junior advocate with the opportunity to argue a motion that would otherwise be decided based on the papers before the Judge is expressly recognized as a factor that may tip the balance in favour of an oral hearing.
Arbitration Action or Lack Thereof?
While it is important to acknowledge that the choice of advocate is ultimately a matter for the party and the legal team, and not a court or tribunal, could proactive steps by arbitral institutions encourage tribunals to similarly champion opportunities for junior advocates?
Arbitration has been slow to formally embrace and encourage the participation of junior advocates. The International Institute for Conflict Prevention & Resolution (“CPR”) is a notable exception. It became the first arbitral institution to formally add a ‘Young Lawyer” Rule to its Arbitration Rules in 2018.[11]
Identifying the “salient features” of its then new domestic and international Non-Administered Arbitration Rules, the CPR highlighted the inclusion of the ‘Young Lawyer’ provision, noting:
Rule 12.5 facilitates the development of the next generation of lawyers by empowering the Tribunal to encourage lead counsel to share witness examination and/or legal argument with more junior attorneys.[12]
The “Young Lawyer Rule” appears in multiple versions of the CPR’s Arbitration Rules, and provides as follows:
In order to support the development of the next generation of lawyers, the Tribunal, in its discretion, may encourage lead counsel to permit more junior lawyers with significantly less arbitration experience than lead counsel to examine witnesses at the hearing and present argument. The Tribunal, in its discretion, may permit experienced counsel to provide assistance or support, where appropriate, to a lawyer with significantly less experience during the examination of witnesses or argument. Notwithstanding the contents of this Rule 12.5, the ultimate decision of who speaks on behalf of the client in an arbitration is for the parties and their counsel, not the Tribunal.[13]
This text appears in Rule 12, 12.5 of the 2018 CPR Non-Administered Arbitration Rules and International Non-Administered Arbitration Rules, which came into force on March 1, 2018, and the 2019 Administered Arbitration Rules, and the 2019 CPR Rules for Administered Arbitration of International Disputes, which both took effect on March 1, 2019. The CPR’s leadership in this area is commendable, but the idea has yet to gain significant traction in the arbitration community.
The widespread adoption of virtual hearings provides fertile ground for junior advocates, many of whom have earned their stripes in an age of technological innovation in arbitration and are in some cases more comfortable dealing with the demands of the virtual hearing room than their more senior colleagues.
In announcing the implementation of the Young Lawyer Rule, the CPR acknowledged that the adoption of similar “Young Lawyer Rules” by Judges in New York increased following the publication of the New York State Bar Association’s November 2017 Report, “If Not Now, When? Achieving Equality for Women Attorneys in the Courtroom and in ADR.”[14]
The NYSBA Report, which focused on female advocates, concluded that “the more complex the case, the less likely that a woman appeared as lead counsel,” and noted that women held just 24.9% of lead counsel roles and 27.6% of additional counsel roles, representing 25.2% of all counsel appearing in commercial and criminal cases in New York courtrooms.[15]
Diversity is the Watchword
Why do “Young Lawyer” Rules improve diversity? The answer is simple – due to the increased focus on diversity in recent years and the nature of the challenges that diverse counsel often face as their careers progress, we tend to see greater diversity at the more junior end of the legal profession.
Young and diverse counsel who have worked extensively on aspects of the case, handled specific witnesses, and are otherwise well-placed to assist the court or the tribunal by speaking on behalf of their client are therefore likely to be buoyed by initiatives that promote and support their active participation as advocates.
Although the NYSBA Report focuses on female advocates and does not provide equivalent statistics for counsel appearances in arbitration proceedings, it is unlikely that such data, were it to be available, would paint a prettier picture.
Diversity remains the watchword in international arbitration, with studies, seminars and scrutiny devoted to promoting diversity in myriad forms. To date, age and experience have regrettably received limited focus, with notable exceptions including the launch of the Rising Arbitrators Initiative,[16] and the development of initiatives that will permit aspiring and less-experienced arbitrators to shadow tribunals.[17] There is much more to be done.
Let us not forget that there are practical benefits to parties too. In addition to the educational benefits and the indirect promotion of diversity, greater use of junior advocates, when appropriate, may represent potential cost savings for parties. When it comes to assessing and awarding costs, what is reasonable and proportionate should not be determined by what has been done in the past, but by what is appropriate for the case at hand.
Arbitrators as Cheerleaders for the Next Generation?
In the same way that arbitrators publish their procedural preferences and Judges share their Part Rules, nothing prevents arbitrators from making their support of the use of junior advocates, when appropriate, known, albeit with an acknowledgement that the final decision about how the case will be presented is ultimately a matter for the parties and their advisors.[18]
Inspired by the above, let me start the ball rolling:
When sitting as arbitrator, subject to the requirements of applicable law and rules, I encourage substantive participation in arbitral proceedings by representatives who are diverse by reason of age, disability, gender, professional background, race, religion, sexual orientation, socio-economic background or otherwise.
I encourage parties to be mindful of opportunities for such representatives, particularly when they have not had substantial advocacy experience in arbitral proceedings, to undertake advocacy when appearing before me.
Notwithstanding this, I acknowledge that the ultimate decision as to who speaks on behalf of the parties and how they present their case is a matter for the parties and their counsel, not the tribunal.
By encouraging and facilitating the participation of junior advocates in arbitral proceedings, we equip them with the tools required to become better arbitrators in the future. Tribunals and arbitral institutions, like courts and their judicial peers across the globe, can and should do more to champion opportunities for junior advocates.
[1] Amanda Lee is an International Arbitrator, Consultant at Costigan King and Founder of Careers in Arbitration. The views expressed herein are personal and do not reflect the views of any organization or institution.
[2] With apologies to my readers and wishes for long life for all, this quote is a parody of a saying popularized by General Douglas MacArthur’s in his April 19, 1951, address to Congress “Old soldiers never die—they just fade away”. It has been credited to Peter Arnell. See Barry Popik, Old lawyers never die—they just lose their appeal (January 28, 2013) https://www.barrypopik.com/index.php/new_york_city/entry/old_lawyers_never_die_they_just_lose_their_appeal.
[3] Amanda J. Lee, Children of the Revolution: Boldly Going Towards New Gender Diversity Frontiers in International Arbitration, 87(3) The Int’l J. of Arb., Med. & Disp. Mgmt. 87, 404, 420 (2021.
[4] The Judges of the Commercial Court of England & Wales (Eds.), The Commercial Court Guide, (Eleventh Ed., Feb. 3, 2022), https://www.judiciary.uk/wp-content/uploads/2022/02/Commercial-Court-Guide-11th-edition.pdf.
[5] Id. at 77.
[6] Id. at 28.
[7] Id. at 40.
[8] Id. at 79.
[9] EDBY Bankruptcy Policy to Provide Opportunities for Courtroom Skills Development (May 16, 2018), United States Bankruptcy Court for the Eastern District of New York, https://www.nyeb.uscourts.gov/node/1659.
[10] Practices and Procedures of Hon. Joel M. Cohen, https://www.nycourts.gov/LegacyPDFS/courts/comdiv/NY/PDFs/Practices-Part-3.pdf (last accessed Feb. 6, 2022).
[11] CPR Incorporates “Young Lawyer” Rule Into its Arbitration Rules, CPR (February 20, 2018) https://www.cpradr.org/news-publications/press-releases/2018-02-20-cpr-incorporates-young-lawyer-rule-into-its-arbitration-rules (last accessed Feb. 6, 2022)
[12] CPR Non-Administered Arbitration Rules (2018), https://www.cpradr.org/resource-center/rules/arbitration/non-administered/2018-cpr-non-administered-arbitration-rules; CPR International Non-Administered Arbitration Rules (2018) https://www.cpradr.org/resource-center/rules/arbitration/non-administered/2018-International-Non-Administered-Arbitration-Rules (last accessed Feb. 6, 2022).
[13] Id.
[14] Supra note 10; If Not Now, When? Achieving Equality for Women Attorneys in the Courtroom and in ADR, NYSBA (November 2017), https://web.archive.org/web/20171202055109/https://nysba.org/comfedreport/.
[15] Id. at 14-15.
[16] Rising Arbitrators Initiative, https://risingarbitratorsinitiative.com (last accessed Feb. 6, 2022).
[17] My proposed shadowing initiative is outlined here: Amanda J. Lee, The Arbitrator Shadowing Initiative – Presented at JAMS’ Diversity in International Arbitration: Action Requires Commitment (Jul. 22, 2021), https://www.linkedin.com/pulse/arbitrator-shadowing-initiative-presented-jams-july-lee-fciarb/. It will be the subject of a forthcoming article in the American Review of International Arbitration. Other initiatives include the ICC’s forthcoming ‘Hold the Door Open’ pilot program to support young practitioners in Africa. See New initiative to Hold the Door Open for young arbitration practitioners, ICC (Nov. 4, 2021), https://iccwbo.org/media-wall/news-speeches/new-initiative-to-hold-the-door-open-for-young-arbitration-practitioners/ (last accessed Feb. 6, 2022).
[18] See, e.g., Emma Vidak-Gojkovic, Lucy Greenwood and Michael Mcilwrath ‘Puppies or Kittens? How To Better Match Arbitrators to Party Expectations, Vienna International Arbitration Centre Yearbook 2016, Part IV-A https://res.cloudinary.com/lbresearch/image/upload/v1460717417/puppies_or_kittens_a_modest_proposal_to_help_arbitrators_better_match_themselves_with_user_expectations_evg_lg_mm_for_aay_2015_153116_1150.pdf (last accessed Feb. 6, 2022); see also Arbitrator Perspectives Survey, Arbitrator Intelligence, https://arbitratorintell.iad1.qualtrics.com/jfe/form/SV_6lOA2o7fssBqw0m (last accessed Feb. 6, 2022) (the survey invites arbitrators to share information about their procedural preferences, experiences and skills).