This is going to be a short one.  There are two reasons for this: (1) I am babysitting a somewhat fussy (though completely adorable!) baby and (2) there is an enormous backlog of tasks I have to get through.

So, here are some quick thoughts on my recent trip to Hong Kong, where I served as an arbitrator during the Eleventh Annual Vis Moot (East)…

• No matter how many times I go, the flight really does not get easier.  It did help to sit in the exit row, but I wish people would realize that the exit row area is not a bar!  Throughout the flight, people gathered there (directly in front of my happily outstretched legs) with cheap airplane beer and wine and simply did not stop talking.  There are other places to congregate that are not right in front of someone’s seat!
• Overall, I find the service industry in HK quite good (infinitely better than the dreadful service in Beijing, but still well behind Tokyo). But there is one thing that continues to bother me:  whenever I go for breakfast at my hotel, I am instantly bombarded by a server asking me my room number and explaining to me that my meal is not included in the room fee.  I am not sure why this bothers me so much, but I think it has to do with the fact that there appears to be a presumption that anyone who goes to a hotel for breakfast (or other meals) is up to no good–he or she plans to abscond without paying or simply plans to grab items from the buffet and flee.  This presumption is offensive, particularly when you are paying  several hundred (U.S.) per night and have seen the server on multiple occasions.  (This presumption was taken to a terrible extreme in Beijing when, during an epic flood that killed several people, I had the nerve to ask for an umbrella and was immediately told by an angry concierge that if I failed to return it I would owe the hotel $30) There is something cold and inhospitable about this.  I have seen this in Beijing and Hong Kong  but not in Tokyo.  When I stay in hotels in the Western world, this rarely happens.  The server does take your room number, but in a much more discreet and friendly way.  Moreover, they usually wait until you have seated and have a cup of coffee in your hand.  Additionally, hotels and restaurants in the West are more likely to have a flexible attitude toward pricing and small favors for regular customers (the phrase “on the house” does not seem to exist in HK).  I do not want to overgeneralize or imply that service in the West is better (overall, it certainly is not), but I am wondering if this might be an aspect of Chinese culture?  Perhaps this is a manifestation of an extremely literal-minded, “by the book” approach to life that has no room for cutting corners or making exceptions?  If this is the case, there might be some important lessons for western lawyers appearing before a tribunal with Chinese arbitrators. Namely, the arbitrators might be less susceptible to arguments that do not adhere to the strict, literal meaning of the documents involved.  This means advocates should be careful about arguments that rely on public policy, and may want to use narrative devices such as metaphors sparingly.  Thoughts?
• Be wary of sports metaphors.  Few things are more easily lost in translation.  This was illustrated during one of the panels I sat on, where a Danish team used a sports metaphor as its theme and framing device.  They had the right idea (few teams used these powerful narrative devices at all) but they shifted back and forth between the language of baseball (foul ball, out of the park) and football/soccer (out of bonds, offsides).  In addition to being confusing, this mixed metaphor was offered to a tribunal consisting of a German Arbitrator and two American arbitrators.
• Generally, these experiences underscored the importance of context.  Whether you are advocating a position in an arbitration; negotiating a business deal; or simply trying to get breakfast, context and culture matter.  This is only this Blog’s third post, but we hope to keep finding examples of this principle, in both personal and professional contexts.

That’s it for now, but I would love to hear if anyone has had similar experiences traveling in Asia, and the lessons they draw from them.

Welcome to “Found in Translation,” a blog about the vital role that cross-cultural communication plays in international business.

This blog is built around a simple premise: effective communication is at the heart of all successful business relationships. This is especially true in the context of international business, where good ideas are often “lost in translation” because companies have not taken the time to understand the legal, political, and cultural environment in which they are operating.

Accordingly, my hope is that this blog will serve as a forum for the discussion of two important topics:

1. The various ways in which cultural differences impact international business relationships; and
2. How companies can understand and prepare for the challenges these differences present.

We hope you enjoy the conversation!

–By David Coddon

Sitting on a plane from New York to Denver, thankful to be in the exit row (with an empty seat next to me no less) but a bit disappointed to be missing the latest iteration in the Brady vs. Manning saga.

I was in New York for a three day skills workshop sponsored by the Geneva-based Foundation for International Arbitration Advocacy (FIAA). The workshop was held at the midtown office of the New York International Arbitration Center (NYIAC) and the International Centre for Dispute Resolution (ICDR).

The workshop topic was:

Questioning of Expert Witnesses in International Arbitration

The great thing about these workshops (and this was my first one) is that they allow participants to actually practice their advocacy skills and receive detailed feedback from experienced practitioners. I found this much more useful than sitting through a bunch of boring lectures featuring endless Powerpoint slides (by the way, stay tuned for an upcoming rant about Powerpoint). In many ways, it reminded me of the Vis Moot, not least because the final day involved a hearing before a panel of three arbitrators, and it concluded with the arbitrators going around the table, giving each advocate detailed, and at times brutally honest, feedback.

Of course, to really take advantage of these workshops, a significant amount of preparation is required. This meant spending several days poring over a lengthy case file and taking detailed notes.

The case file was based on a hypothetical UNCITRAL arbitration between a Japanese video game maker and a British marketing company. Having concluded the liability phase, the tribunal’s task was to quantify the damages owed, which of course required expert testimony. Each participant acted as counsel for one party and had a chance to practice:

–Delivering an opening statement;
–Conducting a direct examination;
–Conducting a cross-examination;
–Conducting a re-examination; and
–Delivering a closing argument

I took away these valuable lessons:

On Substance

Cross-Examination:

–Every question you ask should: (1) help establish a specific point you want to make, (2) contain one know and verifiable fact underlying that point; and (3) provide evidentiary support for that fact. This helps keep you on target, assures that you won’t be caught off guard by an answer, and allows you to point directly to the record if the witness gives you trouble. From a practical standpoint, I found that the best way to do this is to have a simple table that has one column for each element.

–The general goal should be to put the witness in a box and allow him absolutely no wiggle room. Almost every answer should be “yes” or “no.” He should feel trapped, as if unable to escape a personalized prison cell. Above all, do not give him a stage from which to pontificate.

Re-Direct Examination:

–Put yourself in the witness’s shoes. He is an expert who has spent years studying and practicing in a highly specialized field. He spent countless hours putting together a thorough, detailed report. This report has his name on it, and there is a certain pride of authorship. Now, he has just spent an excruciating amount of time having his credibility, his reputation, his pride, attacked by some awful little lawyer who does not know the first thing about his area of expertise. The nerve of this guy! Even worse, he has been unable to defend himself, to put this guy in his place.

–Finally, you come along to save him. Your most basic task on re-direct is to tear up the box, bust open the prison cell, and free him from this misery. Give him a stage and let him finally put that pesky little lawyer in his place! The best way to do this is to (1) reference an area that opposing counsel was attacking him on and (b) ask a very simple, very short, and very open question that lets your witness take the stage.

Generally

Simple and succinct is always best. This goes as well for the opening statement and closing argument.

On Style

–Use hand gestures strategically. Gestures should be used to make key points, not to simply track the rhythm of the advocate’s speech cadence. To minimize the frequency of gesticulation and maximize its rhetorical effect, it helps to keep your hands on the table, with one hand resting on the palm of the other.

–When examining a witness, make good eye contact with him, but do not forget about the tribunal. From time to time, subtly glance in the arbitrators’ direction to “gauge the temperature” of the panel. If they seem bored and unconvinced, it might be time to make an adjustment.

–Do not respond to the witness’s answers with “ok” or “yes.” This is not a conversation, and you do no want to inadvertently send a false message to the witness or the panel.

–Be more relaxed on re-direct than cross. Again, the goal on re-direct is to free your witness from the horror of cross-examination. Your tone and body language should be relaxed, with a general calming and comforting effect.

Common Law vs. Civil Law

–Given the nature of this blog, it should come as no surprise that my one critique of the workshop is that it had a very common law-centric focus with respect to tone and style. I do not recall a single arbitrator or faculty member who was from a civil law country. It seemed that pretty much everyone was from the U.S., Canada, England, or Australia. My general belief is that the overall tone and style of advocacy should change depending on the nationality of the arbitrators (see CODDICOMM’s Practice Guide on Cross-Examination in International Arbitration).

If you are from a civil law country, I would love to hear your thoughts on this.

P.S. We just landed in Denver, and the flight attendant announced that Denver won. I am only here for a one hour layover, but it should be exciting!

–By David Coddon