by Paulo Flores
So you have tried a number of trials, and now you have your first arbitration; how hard can it be? The answer is—not any harder than trial, just different in some respects. Below are tips for the litigator who finds himself or herself in arbitration for the first time. (They should also serve as a good refresher for those experienced in arbitration.)
The most important aspect of arbitrating a case is preparation. While no different from trial in this regard, due to its less formal nature, litigators sometimes take arbitration less seriously than trial. Prepare not only for the arbitration hearing, but also at every step of the arbitration. Just because you are not faced with the formality of court proceedings does not mean you should not take the arbitration process seriously. For example, docket all of your arbitration deadlines just as you would your court deadlines, and abide by them.
Typically the arbitration process commences with a prehearing telephone conference with the arbitrator and the parties’ attorneys. The primary purpose of this conference is to schedule the hearing dates, and to schedule the other deadlines in the case. Be sure to know your and your client’s schedules before the preliminary conference. The prehearing or preliminary conference is often your first chance to interact with your arbitrator—make a good impression by being prepared.
Consider submitting a jointly prepared, proposed agreed scheduling order to the Arbitrator before the preliminary conference.
Treat your arbitrator with respect. Most attorneys adhere to this tenet. Nevertheless, some attorneys will argue with (as opposed to arguing to) their arbitrator, or raise their voice to their arbitrator. Arbitrators are impartial; they are also human. The strength of an attorney’s argument tends to be inversely proportional to how aggressively he or she makes it. By all means one can be passionate, but there is a line between effective and ineffective advocacy that differs in arbitration from a jury trial.
Generally you should not be trying the case to the arbitrator in the same manner that you might see a TV or movie lawyer character trying his or her case to a jury. Drama does not carry well with arbitrators. They want—“the facts, and just the facts” (and the law). I am not suggesting a lifeless, boring presentation. A little bit of drama, raised voice, and incredulity at the right time is part of effective advocacy. Its overuse, however, can potentially lose you your primary audience in an arbitration—the arbitrator.
Arbitrators like demonstrative evidence—pictures, video, charts, plans, summaries, mockups, etc. Use these freely. They break up testimony and help clarify it. Use the fact that almost everything comes in at arbitration to your advantage.
Cross-examination—keep it short and targeted. Prove your case through your direct testimony. A majority of attorneys try to prove their case through an opposing witness by cross-examination (usually with open ended questions). Not surprisingly, the vast majority of this testimony simply confirms and affirms what the witness already testified to, and if the attorney does manage to get a good answer out of the witness, it is buried in the tedium of all the other questioning. Pick three or so key areas, nail them, and move on.
Use opening argument for a general factual overview of what you expect the arbitrator to hear; use closing argument to argue the law. Do not use closing to recount to the arbitrator everything the arbitrator has heard for the past few days. Closing argument should be the time for you to argue and present the applicable legal concepts to the arbitrator, with maybe a few, overarching factual themes thrown in.
If you have an affirmative claim, do not forget damages. Attorneys frequently concentrate on liability, and give a short shrift to damages. At a minimum, have as an exhibit, a one page chart summarizing damages. The easier you make it for the arbitrator, the easier it is for him or her to draft an award in your favor.
Paulo Flores, is a partner with Peckar & Abramson, P.C. He can be reached at firstname.lastname@example.org.