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Preparing Your Case for the Arbitrator

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By Mary Jane Trapp

Mary Jane Trapp (mjtrapp@tddlaw.com) is a principal in Thrasher, Dinsmore & Dolan, a Legal Professional Association. Her practice focuses on appellate and trial advocacy in complex civil and criminal litigation and on providing mediation and arbitration services for attorneys, businesses, and governmental entities.

The following article was published in the American Bar Association’s GPSolo Magazine, January/February, 2015.

Arbitration is the oldest form of dispute resolution. It has been in existence since at least 1400 bce. The common alternative dispute resolution (ADR) phrase “split the baby” comes from the story of King Solomon’s arbitration of a dispute over a child. In 1888 the United States passed the first Arbitration Act, and arbitration proceedings have been used ever since by individuals, businesses, unions, sports teams, and governments as an efficient, cost-effective, and in many instances private way to resolve disputes.

Arbitration clauses in contracts are ubiquitous. There are private arbitration services, the most notable being the American Arbitration Association. Courts have established binding or non-binding arbitration programs by local rule, and most states have an arbitration act, usually modeled on the Uniform Arbitration Act. Cases are presented to a single arbitrator or to a panel, usually a panel of three.

Today it seems arbitrations have replaced trials, especially jury trials. The skill set needed for arbitration is much like that required for an effective bench or jury trial, but there are differences, and awareness of these differences is key to a good result. Practitioners must re-think their preparation and presentation to best appeal to an arbitrator. Arbitrators want to preside over a one-act play, not a mini-series.

Prepare for the Pre-Hearing

Pre-hearing preparation is critical, and it begins with reviewing the contract provisions, statutes, and court rules to confirm the rules governing the entire process from selection of the arbitrator to conduct of the hearing to confirmation of an award.

Most arbitrators will conduct a pre-hearing conference during which the arbitrator, counsel, and clients participate. It is critical to have the lead attorneys and client decision-makers at this conference. Plan for the conference as you would plan for any hearing. Here is a checklist for the pre-hearing conference:

  • Be prepared to explain the nature of the dispute, the factual and legal issues the arbitrator will be expected to resolve, and what discovery is realistically needed.
  • When and where the hearing will be held?
  • Will subpoenas be needed to compel attendance of any witnesses or to obtain documents, and if so, is there authority to issue them?
  • What law and which rules govern the arbitration and the conduct of the hearing itself?
  • Are motions permitted, and if so, what are the applicable procedures and schedule for submission and ruling?
  • Does the case involve specialized technical matter, and if so, can the parties agree on any “tutorial” materials such as a treatise to assist the arbitrator in a case?

Rethink Motion and Discovery Practice

Motion practice should be avoided and limited to dispositive motions, especially those that may dispose of a part of the case and thereby streamline the proceeding.

Remember that arbitrators, just like judges, loath discovery disputes, so have ready a list of any anticipated discovery issues. These issues need to be discussed and resolved at the pre-hearing conference.

The whole purpose of arbitration is to streamline dispute resolution. Making written discovery requests, deposing every anticipated witness, and engaging in e-discovery wars are hardly efficient or cost-effective choices. Limit depositions to the key actors and pare down those document requests. But if you firmly believe certain discovery is critical and you cannot come to an agreement with your opponent before or during the pre-hearing conference, set a deadline during the pre-hearing conference for submission of the dispute to the arbitrator. Do not wait until just days before the hearing to approach the arbitrator with the problem.

Be reasonable in setting the case schedule, and once the schedule is agreed upon, comply. Multiple requests for extensions and continuances are not favored. If you are presenting live witnesses, especially experts, vet their schedules in advance to avoid conflicts and explore options such as video depositions, web conferencing, or mutual agreement to submit written reports and affidavits for the parties’ experts in lieu of live testimony.

One effective technique with experts is to ask them to confer in advance of the hearing to determine where they agree and disagree. This list of points is then submitted to the arbitrator along with a summary of their opinions relating to the areas of disagreement.

Streamline Your Presentation

Remember arbitration was designed to be a less formal forum for dispute resolution, so be reasonable and use stipulations to narrow the focus of the hearing to the key issue or issues. Conference with the other side in advance of the hearing to determine what exhibits may be offered as joint exhibits, and limit objections to exhibits as much as possible and only to critical issues.

Also remember the rules of evidence are usually relaxed in arbitration, and most everything offered is admitted. Efforts to exclude testimony will also generally fail. Trust your arbitrator to give evidence the appropriate weight, and spend more time attacking the credibility of the evidence and presenting stronger rebuttal evidence than arguing exclusion. Also consider crafting a list of stipulated facts to submit to the arbitrator in advance. The easiest way to do this is to create two lists: undisputed facts and disputed facts.

The same holds true for submission of any legal issues in dispute. A short arbitration brief submitted in advance of the hearing, which contains the factual stipulations and concise legal arguments with citations, is very helpful to the arbitrator and sets the stage for your presentation.

When writing the legal arguments, please assume your arbitrator knows basic law. Zero in on the most recent, applicable, and persuasive case law, statues, or rules. Argue the law, emphasizing that which best supports your case. The arbitrator probably will have read these briefs in one sitting, so do not spend time giving “free air time” to your opponent by repeating (and thus emphasizing) your opponent’s claims or argument, which the arbitrator has just finished reading. You can always distinguish the cases cited by the other side without starting a sentence off with “opponent argues that. . . .”

Tell a Story, Build on a Theme

Although it is safe to assume the arbitrator knows the basic law, it is never safe to assume the arbitrator knows any of the facts. It is your job to be the storyteller.

The art of storytelling is just as important in arbitration as it is in a jury trial. Spend time thinking about and crafting a theme, and build your factual story around that theme. There is nothing worse than a chronological recitation of the facts. Go back to your list of undisputed and disputed facts. Evaluate each fact in terms of your theme and its ability to advance the story. In other words, is the fact, or the dispute about fact, necessary to understand the story?

Worse yet is a presentation without a road map, which inevitably results in an arbitrator who says to herself or himself at the end of the hearing, “I still do not know what happened and neither side told me what I need to know to decide the case.” Ask yourself, “What must I provide to win the case, and what persuasive evidence do I need to prove my case?” That is your road map.

Avoid cumulative evidence for evidence’s sake. When one or two witnesses on the same fact will suffice, do not call two more who will say the same thing. An affidavit may be equally effective, so long as you do not present multiple affidavits that all read the same with just a name change.

Use presentation tools effectively to add to the story rather than distract. Organize documents in a pre-marked, tabbed exhibit book and prepare a book for the opponent, the witness, and the arbitrator. PowerPoint slides are best used for graphics, pictures, and charts—especially if the arbitrator is a visual learner—but slides cannot replace persuasive articulation and argument.

Let the Arbitrator Know What You Want

Ask for reasonable relief. The arbitrator needs to know specifically what you are asking for in the award. Do you want a bare award (i.e., a dollar amount for a party), or do you want an award with findings of fact and conclusions of law?

As for the amount sought, once again rely on the arbitrator’s expertise. Do not up the demand to an unreasonable level with the hope that it will increase the award. Actually, that tactic may just backfire and undermine your entire presentation.

The converse is also true. It is rarely seen in my experience, but it has happened. Ask for too little, and that’s what you will get. The “too little” demand simply justifies the other side’s opposition to your case and puts your opponent in a more favorable light.

Time spent in crafting and evaluating your demand for relief is time well-spent. Consider doing a mock hearing with a colleague. Give your opening and then your demand. Talk through your colleague’s questions and reactions in order to refine your presentation.

Do not be pedantic or overly argumentative. Courtroom bullies also do not fare well in arbitrations. And spend some time preparing your clients for what to expect so they will refrain from comments or outbursts during the proceedings.

The Qualities of a Good Arbitrator

Finally, what are the qualities to look for in an arbitrator? Similar to those we look for in a judge—experience, knowledge, temperament, patience, and diligence. A good arbitrator will commit to enforcing the agreed schedule, being available to discuss and resolve pre-hearing issues and disputes, conducting a fair hearing, and timely issuing an award.

Justice Sandra Day O’Connor said, “The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.” ADR should not be seen as the replacement for a traditional bench or jury trial; rather, ADR is one additional option to consider, which may actually make the justice system more accessible and affordable for those we serve.