Young ICCA Webinars: How to Work Effectively with Local Counsel, In-House Counsel, Fact Witnesses and Experts

"How to Work Effectively with Local Counsel, In-House Counsel, Fact Witnesses and Experts” was organised in collaboration with the Georgian International Arbitration Centre (GIAC). The joint webinar was held on the occasion of the GIAC Arbitration Days 2020.

Speakers:

• Laurie Achtouk-Spivak, Counsel, Cleary Gottlieb, Paris;
• Sandro Bibilashvili, Partner, BGI Legal, Tbilisi;
• Nata Ghibradze, Senior Associate, Hogan Lovells, Munich; and 
• Anna Kozmenko, Partner, Schellenberg Wittmer, Zurich

Post Event Report

by Anastasiia Dulska, Associate, Schellenberg Wittmer, Switzerland and Alexander Mironov, Master in International and European Law, Grenoble Alpes University, France, and Lobachevsky State University, Russia

On 23 October 2020, Young ICCA and the Georgian International Arbitration Center ("GIAC"),  held a joint webinar on “How to Work Effectively with Local Counsel, In-House Counsel, Fact Witnesses and Experts” on the occasion of the GIAC Arbitration Days 2020, which is held virtually this year and combines several online events. The joint event was acclaimed with interest, and attracted more than sixty attendees who connected simultaneously, including young practitioners and students.

Ms. Shirin Gurdova (Events Coordinator at Young ICCA) opened the event, introducing the co-moderator, Ms. Nata Ghibradze (GIAC Arbitration Council; Hogan Lovells, Munich), and the panel of speakers, comprising of Ms. Laurie Achtouk-Spivak (Counsel, Cleary Gottlieb, Paris), Mr. Sandro Bibilashvili (Partner, BGI Legal, Tbilisi), and Ms. Anna Kozmenko (Partner, Schellenberg Wittmer, Zurich). In her introductory remarks, Ms. Gurdova shortly described the legacy, mission, and main activities of Young ICCA, a professionally oriented arbitration network that celebrated its 10-year anniversary this year.

Ms. Ghibradze, a newly appointed member of the GIAC Arbitration Council, described the GIAC and its position in the dispute resolution scene of the Caucasus region, as well as the GIAC Arbitration Days 2020. Ms. Ghibradze laid down the speakers' sequence and the topics they would address.

Ms. Achtouk-Spivak commenced the discussion by sharing her thoughts and insights on the important role both fact and expert witnesses play when they provide their oral and written testimony, which forms part of the evidentiary record and complements the documentary evidence. She emphasized that one should carefully develop a cooperation strategy with a fact or expert witness in order to protect the client's interests. This strategy, however, shall be well adapted depending on whether a witness of fact or expert is involved. For instance, a fact witness' role is not to present the expertise or judgments to a tribunal, but to inform the arbitrators’ knowledge about the facts.

Given that junior lawyers play an important role in the interaction with witnesses, Ms. Achtouk-Spivak explained that preparation is key, and an in-depth review of the documentary record is of paramount importance before any interview with a fact witness. In particular, she stressed that rigorous work with documents will help formulate specific questions to fact witnesses, as well as to clarify whether a fact witness has direct knowledge of events or allegations and, in case of being in the position of respondent, is in a position to address or rebut allegations of a claimant. Early on in the proceedings, it is crucial to determine, through a series of targeted open-ended questions, the scope of a witness' knowledge on as many issues of the case as possible, the witness’ ability to support the client's case, and the strong and weak sides of the case. The psychological and cognitive aspects are of equal importance. Hence, Ms. Achtouk-Spivak strongly suggested to never disregard the need to demonstrate empathy and humility. To learn more from a fact witness, a counsel should be able to build a bond of trust and collaborative relationship and make a witness feel comfortable, while trying not to influence his or her recollection of the facts. Overall, it is most important to evaluate whether the risk of putting forward a witness testimony is worth his/her evidentiary value. Finally, one should keep in mind that overprepared witnesses tend to have rehearsed answers and it calls into question their credibility and evidentiary value of their recollection of the facts.

However, as far as expert witnesses are concerned, it is necessary to prepare for the first meeting to establish whether a potential expert has the requisite qualifications, experience, credibility, and an absence of conflict allowing him or her to appear as an independent expert. The exercise is thus similar to a due diligence and review of an arbitrator's profile, yet it should involve preparation of a non-disclosure agreement ("NDA"), which shall be signed before discussing any details of the client's case with an external expert. In case of a conflict of interests, disagreement on the amount of the expert’s remuneration, or other undesirable situations, an NDA will help to avoid additional risks and ensure the client's privacy. Counsel team should also carefully observe how experts react to information provided to them and follow up on any queries related to their understanding of the case and the parties’ position.

Mr. Bibilashvili continued the panel discussion by discussing in detail the mechanism of a productive interaction between international and local counsel. According to Mr. Bibilashvili, it is important for local counsel to establish trust and reputation, which can become a decisive factor during the search and selection of local counsel for a specific case. In particular, it is applicable in a situation when international counsel need support in a jurisdiction, where they have never worked before. To build sound reputation one should work constantly on the quality of his/her the legal services.  When joining a new case, Mr. Bibilashvili suggested holding an introductory call involving the client and international and local counsel so as to exchange guidelines on cooperation and discuss the roles of the parties in the case. For a successful cooperation, international and local counsel, as well the client, should know what to expect and understand the requirements of the case and the issues they will be addressing. They should also know how many and which members of the team should be involved in a case. Even if the role of local counsel is usually considered as a supportive one, it does not mean that local counsel should not know the case in its entirety. The outcome is always  better when local counsel know all details of the case, shares  their expertise, and responsibly contribute to the case from as an early stage of the proceedings as possible. Mr. Bibilashvili further stressed that the difference between common law and civil law jurisdictions is not a disadvantage.  Sometimes the use of best practices from common and civil law jurisdictions can lead to synergy effects and out of the box solutions.

Lastly, Ms. Kozmenko shared her practice-oriented approach to an effective work coordination between external lawyers and in-house counsel and clients. As an initial reaction, Ms. Kozmenko noted that working with in-house counsel, local counsel and witnesses could be one of the challenges of the daily professional life of counsel. Turning to her specific topic, Ms.  Kozmenko shared her list of tips on efficient management and cooperation with in-house counsel developed on the basis of her personal experience.

Ms. Kozmenko stressed that it is important to understand the in-house counsel's own perception of his/her role in the dispute and the extent they would like to be involved, as the latter might vary from a hand-off approach to a detailed step-by-step supervision, in particular, in the companies in which designated legal departments are established. Already from the outset, it would be prudent to organize a case management conference with the client to discuss the expectations from the external counsel and the level of involvement of the in-house counsel. Particularly, in order to avoid any misunderstandings further down the road, an external counsel, together with a client, should go through the checklist that would specify the tasks that would stay with the in-house team, the task that the client would like to outsource, the in-house counsel's expected role, contributions, and alike. Similarly, it is important to understand who should be a key contact and decision maker for different issues, from strategic considerations and formal sign-offs to executive decisions of executive members of the client who are capable to assist with fact-finding, document production and work with witnesses, as well as managerial and administrative aspects of the work on a case.

Further, Ms. Kozmenko embraced Ms. Achtouk-Spivak's key takeaway that preparation is essential and, in order to achieve efficient coordination between a client and in-house counsel, advanced planning is absolutely crucial. A work plan with all known deadlines should be developed and discussed with the client. For instance, the work with the documents should be thought through. In particular, at the beginning of the process, external counsel, together with in-house counsel, should jointly identify key documents, which should then be collected and secured. This will facilitate further work and ensure a well-organized and managed document production phase as well as work with the facts. When working on a project involving interactions with a large number of persons, one can easily miss little details that could play a crucial and important role later on. To avoid all unpleasant downsides of multi-faceted coordination, a clear timeline with dates when each and every party shall deliver the piece of work and the feedback on that work alongside regular and structured updates are key. Finally, Ms.  Kozmenko pointed out that external counsel should always be flexible with the client’s requests and remember that it is the client who always makes the final decision and defines the overall strategy. While lawyers are engaged in the legal matters of the case, the client has a general picture of the project. Hence, external counsel should stay open-minded to a client’s particular considerations, since only the client has a full picture of the dispute and its implications on the client's business. Ms.  Kozmenko emphasized that this approach would allow to build trust and achieve a fruitful cooperation with the client.

Ms. Ghibradze summarized common grounds between all three speakers, which are equally applicable to cooperation with witnesses, in-house and local counsel and boil down to preparation, planning, constant and clear communication, division of roles and trust building.

Following the panel discussion, the speakers answered the questions from the participants during a live Q&A. Further, Ms. Gurdova finalized the webinar by delivering her concluding remarks and expressing her gratitude to GIAC and the speakers for the cooperation and contribution to the webinar.