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On İki Levha Yayıncılık
Yayın tarihi: Şubat 2022
Sayfa: 97 - 107
On İki Levha Yayıncılık
Yayın tarihi: Şubat 2022
Sayfa: 97 - 107
Yazar:
Laurence Shore
Editör:Şeref Can Arat, Ziya Akıncı, Umut Tuga
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Sayfa 97
Laurence Shore with the assistance of Federico Alberto Cabona…
I should first identify a few of my biases regarding psychological research and advocacy,…
The short list of my – acknowledged – biases is as follows:…
(i) Disregard of new nomenclature for old problems. Too much discussion about psychology, when lawyers seek to apply it, is couched in the most recent academic terminology, as if the issues had only recently been discovered. However, some major concerns that the discussion centers on – e.g.,…
(ii) Experimental difficulty. As one reviewer (Freeman Dyson) said of Nobel prize winner Daniel Kahneman’s method in Thinking, Fast and Slow,(2)…
(iii) Role awareness. Unless arbitration counsel take into account the reality…
(iv) Ethical boundaries. Anything said about arbitration hearing room advocacy,…
a. A lawyer shall not knowingly “fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel”;(4)…
b. An advocate has an obligation to present the client’s case with “persuasive force.”(5)…
c. An advocate may not make an assertion purporting to be based on the lawyer’s own…
d. In appearing before a tribunal, a lawyer shall not:…
i. Allude to any matter that the lawyer does not reasonably believe to be relevant…
ii. Assert personal knowledge of facts in issue;…
iii. Assert a personal opinion as to the justness of a cause or the credibility of…
iv. Ask any question of a witness that the lawyer has no reasonable basis to believe…
I raise these points not merely as being some of the boundaries to counsel’s hearing…
Finally, in this ‘bias section’ I should mention that the specific advocacy suggestions…
To be sure, in the hearing room context, it would be a difficult task for counsel…
The Kahneman “story” observation will come as no surprise; to some extent, it validates…
Tversky’s observation about the brain being designed to make “the best possible case for a given interpretation”…
Reason evolved to be used not in law courts but in informal contexts. Not only are…
Another key insight from Mercier/Sperber’s research is the distinction between production…
Advocates before tribunals, however, need to be interested in uncertainty. As Judge…
What does this mean for arbitration counsel? The insights of Mercier/Sperber suggest…
Appreciating the strength of story-telling, of sympathetic summary, and of the ability…
There is a counterargument to ‘sympathetic summary’ that involves a timing issue.…
If your decision-makers were jurors rather than lawyers accustomed to sitting as…
The same “principle of charity” approach holds true, in my view, for oral opening…
Since so much of a hearing involves witness examination, a few more words could be…
a. Direct examination of fact witnesses. It does not really exist in arbitration, which is a problem, because witness statements rarely contain compelling narratives. Thus, all the tribunal sees is cross-examination, i.e., an…
b. Cross-examination of fact witnesses. Unless it can be shown that the witness is in fact a liar, a “confrontation cross” does little more than to demonstrate to the tribunal that the advocate is capable of a confrontation. Alternatively, counsel might leave with the tribunal the impression that she has attended a cross-examination seminar, in which propounding a series of closed questions is deemed to be best practice. Instead, I would suggest that most crosses of fact witnesses should aim at arguing through the…
c. Cross-examination of quantum and technical experts. Here, the opportunity to expose blatant bias may well exist.
Conclusion…
A parlor game devised by Mercier/Sperber – yes, some parlor games can be useful –…
I confess I find this both heartening and a bit troubling. When I lose a case as…
Heartened or troubled, I am definitely not left in a despairing state by the existence…
