When both parties have completed the presentation of their cases, an opportunity is afforded to deliver closing arguments. For a closing argument to be compelling, it should summarise the facts on which you rely. And which undermine the opponent’s case.
A compelling closing argument will place all the proven facts into perspective in the arbitrator’s mind and assist him or her to find in your favour. Traditionally, the party who bears the onus to begin will be given the first opportunity to argue. The other party will then be given an opportunity to present their closing address.
The closing address should include the following:
- Define the issues and refresh the arbitrator’s memory on which facts are disputed and which are common cause, and outline the burden of proof regarding the issues in dispute
- Reasons why the evidence of the other party should be rejected
The disputed facts are then discussed by highlighting the weaknesses in the opponent’s case. This is achieved by advancing reasons why the other party’s evidence should be rejected, and your evidence should be accepted. One can draw the presiding officer’s attention to any concessions made by the opposition’s evidence in cross-examination that influences their credibility and highlight contradictions and inconsistencies.
- Ensuring that all uncertainties are cleared up to persuade the presiding officer to conclude that your version is more likely to be the truth than that of your opponents. This is especially important with factual disputes where the commissioner has to decide which party’s version is more probable.
- Draw the arbitrator’s attention to principles of law and authorities from which those principles are extracted.
An effective closing address will typically consist of 4 logical steps.
- Identification of issues to be decided
The parties have decided which facts will be disputed and which facts were agreed upon from the onset. The latter is more commonly known as common cause. A compelling closing argument will remind the commissioner of the issues he is left to decide and the issues the parties have agreed upon or are not in dispute.
- Analysis of witness testimony and evidence
Each witness’s testimony should be analysed. The commissioner’s attention should be drawn to any questions or contradictions that the opponent’s witnesses could not answer or the other party’s failure to call a witness. In contrast, the commissioner should be referred to the strength and quality of your witnesses, and reference should be made to corroborating documentary, audio or other evidence.
- Disposal of the opponent’s evidence
The mistakes in the logic of the other party’s arguments should be highlighted.
- Application of the law to the facts
It is advisable to have legal authority on hand which supports your case. A full copy of the judgement should be readily available for the commissioner to peruse.
Whilst the value that can be added by way of a compelling closing argument cannot be underestimated, a party must still spend a considerable amount of preparation time and effort to successfully prove the facts upon which the closing argument is based.
Article by: Janeske Greeff
Dispute Resolution Official – Cape Town