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MS ARBITRATION

PRACTICE
POINTERS

ADVOCACY COURSE

Background

When I was a second-year associate, I was the teaching assistant in the course I now teach.

One of the two professors was my boss — and I commuted with her to each class from our office.

Every week, we'd arrive about 90 minutes early; the professors held office hours in a café on campus. Students only rarely came by, which meant that I could ask questions. Reader, I asked a lot.

More recently, the other professor asked me to come chat with Young OGEMID; it seemed only fair to take questions.

Raised hands | Mallory Silberman leads an interactive session at Washington Arbitration Week

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Every quarter (or so), I select a practical question from a member of the community, and share my answer with the group. Ask away!

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Ask Mallory: Interviews & Q&A with Mallory Silberman

Questions Mallory Silberman has answered in interviews and her Young OGEMID column — from the Lexology Index, Law360, and Young OGEMID:

How did you come to be a professor? In 2011, at a hearing, I was working on a counsel team alongside Jean Kalicki. Toward the end of the hearing, Jean mentioned during the coffee break that it seemed like I really enjoyed doing this work. She was right, and when I told her as much, Jean asked if I would be interested in becoming her teaching assistant. At the time (and for many years prior), she and Mark Kantor co-taught a Georgetown Law course on advocacy. As TA, I had a seat in their master class and was the fly on the wall when they crafted their feedback. I took notes, tried to internalise lessons, and — near the end of the course — even taught a module myself. The next year, Jean and Mark kindly invited me back as their co-professor. I took over the class from them about seven years ago.
[E]arly on as an associate, you asked if you could come sit with me in the "case room" — where we kept all the files — in the lead-up to a filing we were working on. I had never had anyone ask me that before. Why did you do it? I think it's very important to sit down with paralegals. With interpreters; translators. Anyone who will have any sort of role in the case, to understand what it is that they are contributing and what specifically they need in order to make that contribution.So much of the practice of law is logistics and operations. Even if you aren't getting the "traditional" experience (or the experience you thought you would have, substantively, in a particular area of law), there are still so many things you can take away from the job — because, as you mentioned Kelby, you have to "manage." You have to manage people. Expectations. You have to worry about operations and logistics and whether all of the exhibits have been stamped with a number, so that months down the road (or years down the road), when you're sitting in a hearing room, someone's able to pick up that document and know what it is.
What do you enjoy most about your job? First and foremost, I love the human elements of our work: getting to meet a new client, colleague, or witness and learn from them. As counsel, I always found it so meaningful to help parties and others to recount their stories. I also greatly enjoy the challenge of building a strong, clear, and resonant case. It's a very complex puzzle, with constantly shifting pieces — legal, factual, cultural and strategic. But there's just something about working with a team to assemble those pieces that I find intellectually satisfying.
You've done various types of work in international arbitration, including casework and teaching. Which has been your favorite and why?
What surprised you most when you started work as a lawyer?
What qualities allowed you to succeed in the field? Apart from a healthy dose of luck (and from guidance, assistance, and support from good mentors), I think that it mainly comes down to some attributes that I picked up from my parents. My mother is an artist and a writer who had me honing creativity and communications skills from the start. And my father — as the former head of a sports arena — essentially gave me a masterclass in complex project management. From him, I also learned the importance of tending to every aspect of the audience's experience.
Her proudest moment as an attorney During a recent hearing that was being conducted in both English and Spanish, an arbitrator decided to ask Silberman — a native English speaker — a question in Spanish, knowing she'd understand the question. In another case, an arbitrator asked her a question in civil law shorthand, even though she's formally trained in the common law tradition. "I'd proven to him throughout the hearing that I could understand civil law shorthand," she said. "It takes a ton of work to find common ground ... [so] my proudest moments have been little things, small moments when I felt [my hard work] had paid off."
On which types of matters have clients sought your advice the most in the past year? Since launching MS ARBITRATION, the requests have been wonderfully varied. But, generally, they have involved the same theme: helping members of the field to become even better at their jobs. Thus far, the most common requests have been for practical guidance; assistance with hearing prep; mentoring sessions; skill-focused training programs; and "sense checks" on substance, procedure, and strategy.
What is your philosophy on footnotes? Assuming you have one, of course. So, to me, footnotes represent opportunities. They are a means to build trust; a component of persuasion; and a way to assist the audience with its task. In practice, as you might imagine, this philosophy can translate to long footnotes. I know that many writers prefer short ones, but here's how I tend to see it: When I cite an exhibit, if I supply only the number, it's a missed opportunity. It's like saying "Here's a document, full stop" when I could say "Here's the evidence: it's an email exchange between the relevant people, during the relevant timeframe, about the topic at hand, and it explicitly states XYZ on Page 2." Isn't the latter more persuasive (and helpful)?
In your opinion, what effects could legal technology innovation have on arbitration over the next five years? I think that the effects are going to be quite profound. AI will undoubtedly continue to streamline the more labour-intensive aspects of our work — and I know that there has been much discussion around legal research and document review. But, personally, I'm most excited by the potential for technology to make advocacy itself more effective and persuasive. (For example, I very much hope that, five years from now, "overly text-heavy slides" are a thing of the past.)
What is your favourite word?
Which fictional hero do you consider your own personal hero?
Why did you decide to set up MS ARBITRATION? The idea was really born out of the market itself. When I left private practice, I happened to mention on LinkedIn that I was still planning to contribute in other ways to the field. And, in response, practice chairs, partners, and associates started to reach out and ask me for ad hoc assistance. They were looking, for example, for someone to moot them for a hearing — or to help train their colleagues or to coach them through the process of handling a new aspect of casework. I'd always loved doing that sort of thing, and eventually, MS ARBITRATION was born.
Why she is an international arbitration attorney Working in international arbitration wasn't the fulfillment of a lifelong dream for Silberman. She said it had more to do with serendipity and luck, and the fact that she'd been studying Spanish since she was in kindergarten. She also attributed her career path to Arnold & Porter partner Steven Kaplan, who she says set up a mock interview when she was in law school to meet with the firm's arbitration team. She didn't know anything about investor-state matters at the time, but she said the cases sounded so fascinating that she wanted to find out more. All of those factors helped to put her in the right place with the right skills at the right time, she said.
What advice do you typically give students who are seeking a job in investor-state arbitration? First, be patient. Unlike in my day, when an attorney could stumble into the field accidentally, today, there are more applicants than positions, and it takes time — and luck — to secure that first job. While you're waiting, do other work you find interesting; the time will pass very quickly if your mind is engaged. (And before you ask: yes, any work you find interesting. Almost every job teaches skills that transfer to arbitration.)

Public Docket: Case Proceedings (continued)

Ballantine v. Dominican Republic

Statement of Defense (MAY 2017). [ISLG] [ITA] [JUSM]

Objections to Admissibility (NOV 2017). [ISLG] [ITA] [JUSM]

Rejoinder (MAR 2018). [ISLG] [ITA] [JUSM]

Hearing (SEP 2018). [ITA] [JUSM]

Award (SEP 2019). [ISLG] [ITA] [JUSM]

Public Docket: Case Proceedings (continued)

Bridgestone v. Panama

Expedited Objections (MAY 2017). [ITA] [JUSM]

Reply on Expedited Objections (AUG 2017). [ITA] [JUSM]

Hearing on Expedited Objections (SEP 2017). [JUSM]

PHB on Expedited Objections (OCT 2017). [ITA] [JUSM]

Decision on Expedited Objections (DEC 2017). [ISLG] [ITA] [JUSM]

Counter-Memorial (SEP 2018). [ITA] [JUSM]

Rejoinder (JUN 2019). [ITA] [JUSM]

Hearing (JUL 2019). [ITA] [JUSM]

PHB (OCT 2019). [ITA] [JUSM]

Award (AUG 2020). [ISLG] [ITA] [JUSM]

Public Docket: Case Proceedings (continued)

Corona Materials v. Dominican Republic

Reply on Expedited Objections (FEB 2016). [ITA] [JUSM]

Award (MAY 2016). [ISLG] [ITA] [JUSM]

Public Docket: Case Proceedings (continued)

Daimler Financial Services v. Argentina

Decision on Annulment (JAN 2015). [ISLG] [ITA] [JUSM]

Public Docket: Case Proceedings (continued)

EDF v. Argentina

Award (JUN 2012). [ITA]

Decision on Annulment (FEB 2016). [ISLG] [ITA]

Public Docket: Case Proceedings (continued)

Electrabel v. Hungary

Award (NOV 2015). [ISLG] [ITA] [JUSM]

Public Docket: Case Proceedings (continued)

Emmis v. Hungary

Decision on 41(5) Objection (MAR 2013). [ISLG] [ITA] [JUSM]

Decision on Bifurcation (JUN 2013). [ITA] [JUSM]

Award (APR 2014). [ISLG] [ITA] [JUSM]

Public Docket: Case Proceedings (continued)

Enel v. Panama

Award (AUG 2021). [ISLG] [ITA] [JUSM]

Public Docket: Case Proceedings (continued)

Huawei v. Sweden

PO1 (JUN 2022). [ISLG] [ITA] [JUSM]

PO2 (SEP 2022). [ISLG] [ITA] [JUSM]

Public Docket: Case Proceedings (continued)

I.C.W. v. Czech Republic

Award (MAY 2019). [ITA] [JUSM]

Public Docket: Case Proceedings (continued)

Knopf v. Czech Republic

Award (MAY 2019). [ISLG] [ITA]

Public Docket: Case Proceedings (continued)

LSF-KEB et al. v. Korea

Award (AUG 2022). [ISLG] [ITA] [JUSM]

Public Docket: Case Proceedings (continued)

Mercer v. Canada

Request for Arbitration (APR 2012). [ISLG] [ITA] [JUSM]

Public Docket: Case Proceedings (continued)

Natland v. Czech Republic

Partial Award (DEC 2017). [ISLG] [ITA] [JUSM]

Final Award (DEC 2023). [ISLG] [ITA] [JUSM]

Mallory Silberman — Young OGEMID posts

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