How to Excel in the Second Chair
For the ambitious young advocate, the second chair may seem miles away from the real action. You will hardly, if ever, communicate directly with the Court or tribunal. Clients want to speak to lead counsel and hear his or her views, not yours. You may even suffer the ignominy of having your name mispronounced, misspelt, or worse, forgotten.
But I want to suggest that if you’re doing it right, being in the second chair is to be right in the thick of things. The best advocates rarely fly solo. Besides speaking, counsel must listen, think, strategize, recall facts and law, anticipate questions and objections, adjust speaking notes to the evidence or arguments as they unfold, take notes for submissions, consult with co-counsel and clients, check the live transcript, and watch the adjudicators, witnesses, opposing counsel and the clock. It is a colossal task to track everything in the past, present, and future.
This is where you come in. An excellent second chair assists, protects, and valets the first chair. You do the spadework to ease his or her way. You know where everything is in the bundles. You remember every reference, detail and fact, and deliver them just as they reach for it. You anticipate questions and objections, and prepare the right responses. You guard his or her attention jealously and allow only vital things to intrude. You remember which court you’re in, what time the hearing starts each day, and bring his or her jacket or tie. If they are in the habit of wanting a mint or a sip of water during breaks, you have those prepared. And in these socially-distanced times, you make sure the technology works and remember the Zoom log in details. In short, your job is to help the first chair focus on speaking by taking care of everything else.
Here are some tips on how to excel in the second chair.
Know Your First Chair
There are three main species of first chairs, each with different habits and expectations.
The Paratrooper is an important person with many important disputes to handle. They typically parachute in before a hearing, acquaint themselves with the big picture and salient issues, conduct the trial or appeal, then leave until the next time they are required. They will rely heavily on your assistance to familiarise them with the lay of the land so they can hit the ground running.
The Field Marshal approaches the battlefield shoulder-to-shoulder with their team. They are a constant feature in the war room and collaborate on many aspects of hearing preparation. Expect long and frequent brainstorming sessions, where your input will be sought and tested.
The Lone Wolf typically secludes himself or herself with the record before a hearing, preferring to hand-craft nearly every witness examination or submission. While they may give the impression that your job is just to wheel their court bags, you can make your presence felt by offering to check references, proofread, format, and bundle. In the process, if you spot a different issue or perspective, offer it to them judiciously. Even a lone wolf sometimes benefits from the support of a pack.
Knowing your first chair and his or her preferences is the first step to becoming their best second chair.
Know Your Case
There is no substitute for omniscience. Read and re-read all the documents in the record, even if you drafted them. Pay special attention to the pleadings, witness statements, submissions, key authorities, and expert reports. Identify the pith of the case and create a cascading system of flags, highlights, and folded pages to help you navigate the issues and branch out to the relevant details. This is tracking the past.
Then imagine you are the adjudicator and see the case with fresh eyes. What story leaps out from the record? What are your best lines of attack, and where are the weak links? What are the hardest and softest parts of your opponent’s case? If you were the adjudicator or your opponent, what questions or objections would you raise? Do you foresee any procedural issues? Prepare your team’s responses accordingly. This is anticipating the future.
Lastly, create your own hearing folder populated with simplified aide-mémoires and key documents so you can move quickly during the hearing. Create a master chronology of facts, culled from the exhibits and witness statements. For trials, prepare a table identifying the key witnesses on both sides, the gist of their evidence with references to specific portions in their statements, and the evidence to be challenged or elicited from them. Consider also creating smaller bundles specifically for the cross-examination of important witnesses, especially if this will focus your first chair’s (and the adjudicator’s) attention by reducing the time spent flipping through thick bundles. For appeals, summarise the key arguments on both sides with pinpoint references to material in the record. Create a list of inconsistencies and admissions in your opponent’s case. Make “cheat sheets” for important issues and case law. Compile a list of anticipated questions and objections, and your proposed responses. These will help you stay in the present during the hearing.
Prepare Your First Chair
Depending on whether you are second chair to a Paratrooper, Field Marshal, or Lone Wolf, the hearing preparation process can be quite different. Nevertheless, getting them up is always the first step.
Place the entire record before them, with your suggestions on what they should focus on. After digesting thousands of pages, you should have a good idea of the hundred or so pages that would be essential for effective oral advocacy and witness examination. Where appropriate, share your own aide-mémoires and “cheat sheets” so the first chair can quickly grasp the essence of key issues and evidence and decide if they need to look at the primary documents. At the same time, do not be afraid to say if it is important that they review certain documents in full.
Paratroopers would typically expect a comprehensive hearing pack and briefing. They may then identify certain aspects of the case to focus on, and for you to adjust the hearing preparation accordingly. Field Marshals may use your preparation as a foundation to spark war room brainstorming sessions. And even Lone Wolves may find your spadework useful to guide their own building. In any event, the guiding principle should be to do whatever it takes to help the first chair prepare for the hearing. The key is effective communication and assistance.
At the Hearing
On the day of the hearing, the first chair will be mentally preoccupied with the thrust and core aspects of the case to be advocated. Your job is to take care of everything else.
Organise the set-up so that only the essential documents are placed before the first chair. Everything else stays with you, within easy reach for quick delivery to him or her. Make sure that there are sufficient copies of the relevant bundles for the court and any witnesses. Think about when and to whom each document or bundle needs to be tendered, and organise them accordingly.
Guard the first chair’s attention jealously. Decide which substantive matters require his or her attention, and take care of everything else. Handle all pre-hearing administrative requests from the court or tribunal staff. Ensure that all the necessary electronic devices are set up and in working order. During the hearing, decide which notes from well-intentioned colleagues deserve the first chair’s immediate attention and which should be triaged to a subsequent juncture. Do not allow them to be distracted and lose their train of thought.
During the hearing, follow the proceedings closely but not myopically. Clock everything. Watch the adjudicator, witness or opposing counsel, casting your mind back to the record and forwards to any looming objections or questions. Make notes of significant concessions or inconsistencies. Retrieve and queue any relevant documents for the first chair before they are required.
Lastly, develop a synergy with him or her. Practise the skill of sensing the first chair’s body language without looking at him or her. Sense what they are thinking and decide if you should assist. If you pass a note, write legibly and do not use shorthand unless you are certain they will understand. Some first chairs prefer notes written in full sentences, whereas others prefer punchy bullet points. Know which system your first chair prefers. State clearly in your note whether it is meant for their information only, or as a proposed interjection to the proceedings.
At the end of each day, take stock of the developments and plan accordingly for the next. Depending on your first chair, debrief the client(s). Prepare any additional material that may be required for tomorrow’s hearing.
These tips were adapted from “Tips for Second-Chairing an Oral Argument” published in the Global Arbitration Review in October 2019. I have found them helpful for my own practice as a junior, and hope that you will too. Good luck out there.