The Art of Appellate Advocacy in the Arbitral Context and Outside It

• Author: Paul J Pape
• Pages: 425-442

425

chapter sixteen

The Art of Appellate Advocacy in the

Arbitral Context and Outside It

PAul J PAPEが

A. OVERVIEW

This chapter is about how I practice law. It applies to all liti-

gious matters I deal with: motions, applications, trials, and ap-

peals. However, it is particularly applicable to appeals. Many other

skilled advocates will approach matters dierently. Advocacy is an

art, not a science. I have, however, concluded that what I elucidate

here makes a dierence between winning and losing — not always,

but often enough that the result makes the eort worthwhile.

How, then, do you craft and deliver an argument that may

inuence the outcome of an appeal? In my view, the best argu-

ments are those that tell a convincing story.2 In the rst half of

this chapter, I discuss eective storytelling in three parts:

1) the content and form of the story

2) the credibility of the story

3) the conviction in telling the story

1 I would like to thank Andrea M Bolieiro and Justin H Nasseri, lawyers at

Pape Barristers, for their assistance in preparing this chapter.

2 I have written about this before and spoken about it several times: see, for

example, Paul J Pape, “Advocacy in the Court of Appeal: One Lawyer ’s Per-

spective” (2009) 28:3 Advocates’ Journal 3.

PAul J PAPE

426

Does the same approach apply in appeals from arbitral awards?

Yes and no. In the second half of this chapter, I discuss the dif-

ferent considerations that must be kept in mind when appealing

from arbitral awards. Such appeals are rare. There are no rights

of appeal from international arbitral awards, and with respect to

domestic arbitral awards, recourse must be had to the arbitration

agreement and governing legislation to see what rights of appeal

(if any) are provided for. Most importantly, arbitral appeals are

centred on pure questions of law. Thus while these appeals are

still about storytelling, the nature of the story is dierent: It is a

legal story rather than a factual one.

B. THE ART: TELLING A CONVINCING STORY

1) The Content and Form of the Story

I have always guided myself by my friend Professor Charles Nes-

son’s approach to advocacy. Charlie is the William F Weld Profes-

sor of Law at Harvard University.3 He says that the way to win an

argument in court is by telling a short story that will convince

your mother of the righteousness of your position. This approach

addresses the three necessary features of your argument: the aud-

itor (your mother), medium (a story), and objective (to convey the

righteousness of your position).

First, imagine that the adjudicator is your mother.4 Selecting

your mother as the auditor implicitly recognizes what Charlie

and I believe: Judges are swayed, inuenced, and governed by the

same considerations as ordinary people. Judges come to their task

with a sense of humanity and a sense of justice. This does not

change when they take the judicial oath. Judges recognize that

their job is to do justice between the parties. Your mother in mak-

ing a decision would try to do the same. If you cannot persuade

3 Charlie is also the founder of the Berkman Klein Center for Internet and

Society. He teaches the law of evidence and tort litigation.

4 I have maintained Charlie’s choice of parent notwithstanding that some

may see it as biased. I use your mother because, in my mind, she is reason-

able, commonsensical, and humane. Your father is not.