Develop a theory of the case. The theory is your guiding principle and gives the chronology of events a structure. It turns a directionless list of facts into a story. Sometimes the theory is clear immediately. Sometimes it takes several client meetings and a lot of analysis of the file.

Minimise uncertainty. The better you’ve developed your client’s story, the more persuasive you’ll be in dealing with the things you don’t know. I was lucky enough to work under Vincent Fuller, the legendary American trial lawyer, while I was an associate at Williams & Connolly in Washington, D.C. His approach to the preparation stage was incredibly intense. He never ignored the bad facts that didn’t fit neatly into the organising principle. But he didn’t twist them either. He thought about them, hard. And eventually made a bad fact a good fact.

Don’t skimp on the team. The reality of life at big practices is that you have a number of cases on the go at one time. You need a team that reflects that. Last month I was out of action for several weeks on one case because I was at a hearing in The Hague on another matter. Having a partner to cover for me was crucial. Sometimes it’s tempting to go thinner on numbers because it’s less expensive for the client. But it rarely works out that way. Burnt-out people don’t tend to be very efficient.

Be a stakeholder. It doesn’t matter if you’re in your 20s or sadly, like me, in your early 50s, we all need to feel involved. That way each case becomes a commitment, not just something that you go to work to do. The most junior person on the file — and I’m including trainees here — needs to have the freedom to tell the partner in charge, “You’ve got it wrong.”

Get the client’s in-house lawyer on side. A few years ago, I was part of an arbitration in which our client — an engineering company — wasn’t particularly interested in what was going on. They wanted to get on with new projects, not look back. My less than successful experiences have tended to be where the client hasn’t been fully engaged with the case, and this was looking like one of those. Fortunately, their in-house counsel was extremely good. He picked up on the fact that money alone wasn’t going to be a sufficient motivating factor and cleverly changed his tack, appealing to the directors’ sense of personal and professional pride in reminding them that they’d been badly treated. Suddenly things started to move much more quickly.

Find an expert who’s willing to tell you to take a hike when you need it. By that I mean someone who is truly independent. If your expert just says what you want him or her to say, the tribunal will pick up on it.

EQ is as important as IQ. Presenting a case in a super-charged, aggressive or overly partial way causes you to lose your credibility — no matter how brilliant your arguments are. Emotional intelligence is key here. Try and see things through the eyes of a tribunal. Lawyers live the case everyday for months, often years. It’s easy to get blinkered. The tribunal will read what you produce and listen to you at the hearing. That’s it. They have a much narrower perspective. Sitting as an arbitrator has helped me in this respect. But I’ve seen a lot of arbitrators forget what they’ve learnt when they’re back acting as counsel, doing exactly the things that they swore they’d avoid. That’s an indication of how hard the task is.

Be risk averse. Never lose sight of the opportunity to settle. It’s not a sign of weakness to get in touch with the other side. In fact it’s often a sign of strength. Recently, I was involved in a case in which I saw lots of legal fees being racked up for an amount in dispute that wasn’t great. So I simply called up the other side and asked, “Does this make sense? Is there a way out?” Before that point there hadn’t been much dialogue and just making that call opened it up. The case was settled shortly after. It doesn’t always require a formal mediation to resolve things. The top lawyers who regularly handle the really big cases are often in that position precisely because they’re known for not taking risks.

Laurence Shore is head of international arbitration at Herbert Smith

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