Effective Advocacy in Arbitrations

The demands on outside counsel to find innovative and cost-effective solutions for their clients’ legal needs has risen in light of increased scrutiny towards litigation and arbitration. Clients in turn face increased pressure from their business units to manage legal spending and assess litigation risk.

During the recent JAMS National Arbitration Week, one of our Financial Markets panelists, Mark E. Segall, moderated a panel, which delved into some of these issues.  Featuring plaintiffs’ and defense attorneys, the panel explored techniques and approaches attorneys could employ in arbitration to efficiently resolve financial markets disputes.

On the issue of dispositive motions, the panel looked at the extent to which motions during arbitration can be used to create cost-efficiencies for the parties.

“Lawyers on both sides of the aisle said that motions addressing issues such as statutes of limitations or choice of law can often help the parties save time and money and evaluate the settlement value of their case,” said Mr. Segall.

Another area where the parties felt that money could be saved was by intelligent management of discovery, particularly e-discovery.  As Mr. Segall noted during the discussion, “once you turn the electronic discovery spigot on, the ability to settle a case goes down.  The fact is important documents in any case are typically contained in a notebook no more than an inch thick.”  He added that JAMS, CPR and other ADR providers have designed protocols to make the production of electronic evidence far less burdensome and expensive than if the parties were litigating in court.

Mr. Segall said the biggest take-away for attendees was that the participants and panel agreed that arbitrators should continue managing their cases in ways that contain costs as well as maintaining the focus on issues that ultimately impact liability and damages.