The Editors’ Column

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EDITORS’ COLUMN

The Editors’ Column is a new section of NewGen News. It will consist primarily of interviews with notable dispute resolution professionals, in which they will share their personal stories, experiences and insights.

Our first guest is Professor Carlos Eduardo Stefen Elias. Prof. Elias holds Bachelor, Master and Doctor degrees by the University of São Paulo. He founded Carlos Elias Arbitration (CEARB) to act mainly as an arbitrator, after more than 15 years of experience in pre-litigation and litigation in connection with complex disputes.

In a relaxed conversation, Professor Elias shared with NewGen News a little about his passion for what he does, the pros and cons of acting in arbitration, and gave valuable advice to our Editors.

Read below the first of two parts of the highlights of his interview.

NewGen News Editor: I think the first point to start this conversation is for you to tell us about how arbitration came into your life, and then the transition to your own firm, after a very successful career in a larger firm.

Prof. CE: The beginning of my career in arbitration came from information I didn’t know. I received an offer after a job interview with a law school professor and partner at the firm. He had shopping malls as his biggest clients, but he had also proposed a draft for the Brazilian arbitration law.

And in those days, I think he had about three arbitrations. And I liked it. I liked the level of depth, the arguments, how it was discussed, and he needed someone to study the case, to see the documents, to act as the Secretary as we know it nowadays. But at that time, nobody even thought about it, there was no name for it, nothing. I started to study and map the cases, to identify the arguments and counterarguments in the briefs; that is, to work the case as it deserves to be worked.

I went to the hearing and saw the lawyers prepared, debating issues with incredible depth.  And weighing each comma, each issue. I said, “folks, this is it, this is law.” It went beyond what seemed to me to be simply playing with words. Why? Because there is an intertwining between the law, the legal system and people’s lives, you know. I could see how the legal and the factual are intertwined and how it is possible to see not only the legal mechanism, but the actual application of the legal rule to the concrete case, the reasoning behind the rule, the nuances of each case.

And when I started working, we had three arbitrations, then we got a new arbitration to act as counsel. We had shortcomings and successes. We learned together. I met people of this area. I met the lawyers, who at that time were interns, recent graduates, the great lawyers of that time too, some of whom have already retired, because everybody gets old. So, I got to know it and liked it more and more. I liked to go deeper and deeper into the procedural issues, into the substantive issues, because without substantive law nothing can be resolved.

And I also liked to see how it all impacted the development of proceedings designed by excellent lawyers, who fortunately were at that inception of arbitration and are still acting today. Because in the early years only the most renowned lawyers practiced arbitration. And at the time there wasn’t any kind of moot, or anything like that. Very few people knew what arbitration was. Fortunately, I was in the right  place at the right time.

NewGen News Editor: It’s really nice to hear you telling the story about your love for what you do. It is inspiring.

Prof. CE: There is no case like the other. And that’s all I wanted in life: people pay me to study, to see where the law is, to see the best lawyers litigating in writing and orally, giving life to the law. Because that’s what we do, isn’t it? It is more than writing a brief, it is telling a story, more, telling a story based on scholarship, on case law, with foundations, with conviction. Also bringing the best elements, hiding as much as possible the worst ones, because that’s what a lawyer is, a lawyer doesn’t defend justice, a lawyer defends interests.

But, in my role as an arbitrator, it’s just the opposite, right? So there is also this mind game that is always stimulating, and even in arbitration there are points of cooperation, between the parties, and between the parties and the arbitrator. So these are mind games that are stimulating. It is wonderful. I don’t think I will get sick of it, each case is a different case. These are issues that are not repetitive, almost never.

NewGen News Editor: And you know, one thing I feel is that we have to work hard as a  team, but also as professionals. People have to know who we are. So this equalization is very difficult sometimes. The cases are voluminous, so we need time to understand them, to work on them. And there are several other things in the pyramid that make a person’s life, right?

Prof. CE: Yes. There are a number of things, and arbitration has a peculiar characteristic: it works based on how well known and recognized your work is, not only within the office, but also outside it.

So, somehow, it is the lawyer that needs to find a way to project himself outside the 4 lines of the process as well, right? He needs to go beyond that. And in that sense, he needs to meet people. Then you consider: am I going to pursue an academic career? That is a path. Am I going to work in study groups? Another way. Am I going to be a coach? That’s a third one. I’ll try moving up in the office so that when I’m high up, a leading counsel, that is also a way.

Anyway, the work in the area demands from the lawyer that extra-mile, going beyond, right? You have to do it in some way. Believe it or not, those who have competence, they end up being recognized. You have to achieve visibility without appearing to show too much and sometimes it is difficult to find the right tone. But visibility has to be accompanied by technical and legal expertise, because it is not enough just to know contract, you have to know contracts, torts, administrative contracts, have a broad vision of the law. The more complete you are as a legal professional, the better, right? Because you are going to face the most diverse problems.

If I can give one piece of advice, it would be: don’t be in a hurry. Take it easy, the world is not going to end. Arbitration is not going to end. The cycle will not close, and you will be left out. There is no such thing, whoever is good shows up. And, you know, the good performance of lawyers, even interns, is praised, we remember. This guy is good, isn’t he, and vice-versa. Then, this arbitrator is good, isn’t he? If he is good at this, he is good at that, and if he is slow or if he is diligent.

Take it easy. So that’s what I would say to the new generation: don’t forget that besides showing who you are, you have to be a lot when it is demanded of you. So show what you’ve got, but be sure that you have a lot to show.

NewGen News Editor: Although moots open up a lot of opportunities, people are getting too much alike. The path is always the same, you know? You go to law school, you hear about the moot, then you join the moot, and you dedicate a lot. Then you get visibility. Firms look for you, you work hard, but on the other hand I think that people in the market are very similar, with the same profile. What do you think?

Prof. CE: So, you say that people are alike, but many times the witness is there, lying and you have to make the witness tell the truth, you may have a document that you can use to extract from the witness the information that is vital for your case. It is not everybody that can do it. So people look alike only to some extent.

From there on, you can see who writes a brief just because it has to or fully dedicated to it, because s/he wants to win the case or is passionate about it. It is in that full dedication, as a lawyer or as a secretary to the tribunal, that the person stands out. When they are themselves.

It’s just that it won’t happen while you are an intern. It’s like any musical instrument, for example. In order for you to be an excellent music performer, first of all, you need to practice the basics for hours and hours a day, right? The player plays and practices and hits the ball for a long time in order to be prepared for the penalty.  It is the same case of a runner. S/he prepares his whole life for those 100-meter sprints at the Olympics, which are done in 9 seconds. That means that, for nine seconds, s/he dedicated 15 years of his or her life, 10 years of his or her life.

So, people are the same, only up to a certain moment, because everyone will have a moment when they will be demanded, when they will be able to make a difference in a case, in the firm, wherever it is. When they will have the chance to make a difference. This chance for me, to make a difference, was when the first arbitration fell on my hands because Prof. Carmona needed someone that studied, because he was doing everything by himself. There was no such thing as an arbitration group or team. This desire to study was the turning point, and then there were many other turning points.

So you can’t fool yourself and think that the results are already on their way. It is still a lot of effort. It’s an internship, it’s your first five years as a lawyer, so many things that distinguish people from a certain point. So at least from where I stand, I don’t see people as been alike.

NewGen News: It is natural to ask the person next to you “what have you done?” Should one seek a masters degree, have a project, handle X cases…? It is the reality of the moment, you look ahead and want follow those steps, because it is a very small community, everybody knows everybody, everybody knows what the other is doing…

Prof. CE: Yes, I understand. There is a psychologist, Jordan Peterson, who wrote the ’12 rules for life’. He says ‘Don’t compare yourself to someone today, compare yourself to who you were yesterday and make your own path’. This is the best advice anyone can give. I don’t know how they are doing, I don’t know if there are arbitrators with 50 cases, with 3, with 40. I am happy with this number here. I have time for this and I am happy as it is.

It’s hard, I think, especially for the young lawyer, to adjust his or her expectations, the expectations the firm has, and the client’s expectations. It’s very difficult indeed. I also struggled a lot with this. It’s like, am I good enough? Am I delivering? I never think I reached my full potential, but I can only have contact with what I could be, with what I can deliver to you, if I stop thinking about all this. Because I had already practiced. I knew that I would still have to carry a lot of weight.

We see some little geniuses making apps that give results, and become multimillionaires at the age of 25; the advertising people who want to be disruptive; but in our profession there is nothing like that. It is like a musician, you practice, practice, practice, practice, practice. Until  the day comes when the main violinist will be absent for some reason and you will have to play that violin, and at that moment it will be on your hands and you will make the difference.

It’s not a series of 100m sprints, it’s a marathon. So it doesn’t matter where you are from, you have to run, and that day comes for everybody, there is no way. There will come a day when the lawyer can’t write the brief, when the hearing is going badly, when someone hasn’t studied the case as he should have, and then you will have the chance to make a difference and then everything will happen. There is no way to accelerate this, not by getting five masters degrees, not by being a power whatever. It’s the day-to-day, isn’t it? There is no other way.

 

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