My subject is the selection and composition of the legal team, and how the choice of lawyers can affect the quality of the written pleadings, the coherence of the oral arguments, and ultimately the outcome of the case.
The legal team has two parts, national and international, which ultimately form one unified team. Both are equally important. But today I will limit my remarks to the selection of international counsel.
It has become customary in state v. state cases to include several experienced public international lawyers on the team, especially in cases before international courts like the ICJ and ITLOS, and also in inter-state arbitrations, for example, under Annex VII of UNCLOS.
There are several reasons for this. The number and breadth of issues in these cases normally require several lawyers to cover them all; the need for expertise in different disciplines (e.g., law of the sea, environmental law, human rights/humanitarian law, use of force, state responsibility, law of treaties, and so on); the need for litigation or trial counsel, increasingly from a law firm, who are skilled and experienced in matters of evidence production and presentation, dealing with witnesses and documents, as well as overall litigation strategy and tactics. Especially in scientific, technical, or other complex fact situations, there may be a need for a staff of junior lawyers, generally from the same firm, to do basic fact-gathering and analysis. It is especially helpful if they are multilingual and can review documents and witnesses in their original languages.
Also, a diversity of lawyers and styles makes for a more effective presentation at oral hearings, especially hearings that may last two or three weeks or more. To put it bluntly, judges get tired of hearing the same lawyer speak five or six times for lengthy periods in the same hearings. Keeping the presentations shorter, dividing them among more lawyers with different styles, can be like freshening the air in the room: it holds the judges' interest longer; it keeps them from being bored; it helps them stay attuned to the key issues.
There is also an advantage in having a diversity of perspectives. These include the different perspectives of civil-law and common-law lawyers--which are important because courts and arbitral tribunals are usually composed of both. And there is a benefit in having a diversity of languages (English and French, of course, but also the language of the client, evidence, and documents).
But having a team composed of a number of experienced and prominent lawyers can pose challenges. Each one may have a different idea about how best to argue and win the case. How are these differences then resolved? Who gets to decide? Who decides which lawyer will argue which issue, and how it will be argued?
The situation is very different from what is more typical in a major trial in the U.S. courts, where the team may consist of a group of lawyers from a single law firm. Lines of authority and decisionmaking are much clearer there: the senior partner on the case is the obvious leader of the team, and everyone else ultimately defers to his or her judgment. But a team of prestigious public international lawyers, drawn from different institutions, including law firms, has no supreme individual authority.
In theory, and sometimes in practice, it is the agent who leads the team, selects the lawyers, distributes the work, and makes the final decisions about litigation strategy and tactics. But in many cases, agents have no experience litigating or arbitrating cases before international courts or tribunals. Many times they are not public international lawyers, or experts on the legal issues involved in the case, and not fully capable of providing effective leadership to a stable of independent and strong-willed international lawyers. In such cases, the agent will often rely on one of the lawyers, usually the first chosen, to select the rest of the team and assume a leadership role. …