Pleadings, Memorials and Post-Hearing Briefs - Chapter 9 - The Art of Advocacy in International Arbitration - 2nd Edition
Mark Friedman is a Litigation Partner of Debevois & Plimpton based in New York and London. His practice focuses on international arbitration and litigation. He represents clients in commercial and investment treaty cases. He also regularly advises clients in connection with internal investigations and US law matters, including matters involving the Foreign Corrupt Practices Act and similar legislation and regulations.
Originally from The Art of Advocacy in International Arbitration - 2nd Edition
There is nothing like a gripping courtroom drama. As the advocate summarizes the facts in a way that makes the just result obvious regardless of what the law says, or the cross-examiner springs the trap on an unsuspecting witness, we are moved, stirred, transfixed. Dynamic, clever and filled with tension, we are captivated by courtroom confrontations in plays and films ranging from To Kill a Mockingbird to Inherit the Wind, from The Verdict to The Caine Mutiny, from The Merchant of Venice to My Cousin Vinny. For example, in the play A Few Good Men, a military prosecutor, Lieutenant Kaffee, on cross-examination provokes the arrogant, imperious Colonel Jessup into a self-righteous tirade in which he insists he is above the law, above the truth:
KAFFEE: [The members of the jury are] entitled to the truth.
JESSUP: Is that right?
KAFFEE: Do you disagree?
JESSUP: Certainly not in principle. I disagree only inasmuch as I disagree that a paraplegic is entitled to foxtrot. It’d be nice, it just isn’t possible.
KAFFEE: Are you saying it’s not possible for this court to hear the truth?
JESSEP: This court? I don’t know what that means. I’m saying it’s not possible for you to hear the truth.
. . .
KAFFEE: Why is it impossible—?
JESSEP: Because you can’t handle it, son. You can’t handle the truth.
And so begins Colonel Jessup’s downfall, in which he ultimately admits the truth – that he ordered the murder of a soldier under his command.
How can written advocacy compare to that? It lacks the frission, the immediacy and responsiveness of oral advocacy. It has none of the glamour or excitement. It is not the stuff of movies and plays. It is the poor cousin to oral advocacy, sharing some fundamental family traits but perpetually confined to the background.