Here are 11 tips to avoid arbitration slip-ups
During nearly a decade as a commercial arbitrator, I have seen some of the most qualified lawyers in the business fumble and flail during what is supposed to be a less nerve-wracking proceeding than an actual court trial.
It seems that even seasoned advocates have trouble finding their balance in the hearing room, when the rules are a bit more loose and expectations perhaps a little more blurry.
As arbitration becomes an increasingly common way of resolving disputes, it is more important than ever that advocates know how to approach the arbitration hearing. I have compiled a list of easily correctible missteps that will serve you well as an advocate at your next arbitration.
1. Binders full of … uh, exhibits. It’s 2017. The age of the binder should be over. When we’re trying to focus on your evidence—and maybe even leaning back to take notes—we don’t want to have to flip from page to page of your exhibits like we’re in a middle-school history class. Many arbitrations happen in close quarters, so we don’t want to be balancing your giant binders on our laps or having them take up all our table space (where our notes and your other pleadings are already spread out).
Solution: Digitize your exhibits and project them on a screen. Enlarge relevant parts of the document while you discuss them with the witness and the panel.
2. Assuming your arbitrators are experts in your subject matter. Arbitrators hear cases across many different industries. We are experts in applying the facts to the law, not in the manufacturing process of the left-handed widget. Every technical fact must be reducible to plain English, and every expert you examine should be able to explain complex concepts to laypeople. If a basic understanding of the Gazornenplotz Process is key to your case, you aren’t doing your clients any favors by assuming we already know what it is or how it works.
Solution: Be ready to have someone testify about the ABCs of any process, method, theory or technical detail in the simplest of terms.
3. Not making objections. You’re not in court, but you are still creating a record. And although arbitrators have wide latitude when it comes to admitting evidence, if something is clearly objectionable, you should object to it. Not objecting to something objectionable also makes us think you’re either unskilled or not paying attention. It makes us wonder what else you may have missed. Either way, it sends a poor message to the people who will be deciding your case.
4. Making too many objections. Come on, we’re not in court. The evidence is probably coming in. Maintain a balance: Keep your objections to the important things.
5. Treating cross-examination like a deposition. Arbitrators are experienced at understanding the implications of your questions. We know what facts you’re trying to get out in the open. But your case has much less impact if you’re not telling your client’s story in your cross. Be punchy, lead the witness, box him in. Arbitrators are people, and people need to be engaged by stories.
6. Treating direct examination like a deposition. See above.
7. Not telling a story during your opening and closing. Just because most arbitrators are lawyers doesn’t mean we don’t need a compelling story to stay engaged with your case. Treat us like a jury: Draw us into your client’s narrative, and keep us engaged. Be concise, be human, be interesting.
8. Bogging everyone down in procedural matters. Procedure is important, but arbitration is an informal process. Unless a claim is untimely, a critical pleading hasn’t been filed, or some important discovery hasn’t been exchanged, the proceeding is going to go forward. Creating needless delay by forcing us to rule on one trivial procedural motion after another makes us plain angry.
9. Trying to make small talk with the arbitrators. The only time you should talk to us is when you’re talking about the case in everyone’s presence, on the record. You put us in a very difficult position when you try to talk to us in any other context, even when both parties are present. We are required always to be impartial, which also means looking impartial. A claim of bias based on a seemingly innocent comment can lead to a successful appeal of our award. And there’s nothing we hate more than being bench-slapped. Maintaining an impartial demeanor means we can’t laugh with you about the news or commiserate with you about the loss of a local sports team. For your clients’ sake and ours, respect our boundaries and let us be the anti-social grumps we have to be.
10. Not showing us the math of your damages calculations. We need to know how you got your numbers—all your numbers, but especially your damages. If we make an award, we want to be sure our calculations are based in reality. You can’t assume we know how you got to that $1.5 million figure. And if we don’t know how you got to your numbers, we’re going to try to calculate damages from scratch when we deliberate. That might not work out so well for your client. After all, most arbitrators are lawyers and there’s no math on the LSAT.
11. Not answering the questions arbitrators ask: Arbitrators can ask questions too. And if we ask you or your witness a question, we usually have a good reason for doing it. It is not helpful when you treat us like opposing counsel and try to sidestep the question we asked. After all, the flexibility and confidentiality of arbitration is what helps us get to the heart of the matter without anyone having to worry about the very public “gotcha!” moments that can happen in court. So for the sake of your clients and of the process, just tell us what we want to know.
Peter Khalil is founder and director of Northwest Mediation LLC/En Banc Arbitration in Vancouver, Washington. He also arbitrates for such national panels as FINRA and the Better Business Bureau. He is a graduate of Columbia University and Stanford Law School.
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