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Taking Control

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Taking Control

Source: Daily Journal Extra
Date: May 5, 2003
Attorneys who set the ground rules in arbitration before the dispute arises can save their clients from unpleasant surprises at the end.

Who controls the arbitration process? By ceding control to the arbitrator, counsel relinquishes a valuable benefit conferred by private arbitration. Counsel can and should, however, control the arbitration process, even before the dispute arises.

Before the battle - managing arbitration agreements. Attorneys should spell out carefully the rules to be applied in the arbitration agreements they draft. This will allow the disputing parties to know in advance the process that will be used.

The growth in arbitration practice has resulted in thousands of solo arbitrators and tribunals. Some have developed their own rules that will govern the proceedings if the tribunal is written into the contract or if the parties elect to adopt the rules.

Most state statutes provide that, if no rules are specified in the arbitration agreement, the portion of the Civil Code relating to arbitration will control.

This code generally provides that the Code of Civil Procedure and Evidence Code will govern. Many arbitrators, however, disregard these provisions and permit all evidence to be admissible, subject to the weight given it by the arbitrator. This sometimes includes the admission of surprise written testimony or reports or unanticipated live witnesses.

Failure to spell out the rules, therefore, may leave the parties subject to the local Civil, Civil Procedure and Evidence codes, at best, or the whims of an arbitrator, at worst. All of this is avoidable either through a carefully drafted arbitration agreement or through stipulation by the parties.

The battle begins - the arbitration submission. Even before an arbitrator is selected, counsel should meet and confer to create an arbitration submission. This submission could supersede the arbitration agreement by stipulation. If no agreement is reached, submission avoids surprise and guides the arbitration process.

A well-crafted arbitration submission will accomplish the following:
  • Identify the process that will be used to select the arbitrator.
  • Set forth the rules that will govern the hearing. These could be set by JAMS, the American Arbitration Association, applicable state or federal arbitration acts or an agreement that the parties will proceed under the rules set forth by the arbitrator.
  • Determine the manner by which documents will be exchanged.
  • Reach an agreement about the exchange of briefs.
  • If possible, provide an estimate of the length of the arbitration hearing.
Many of these issues are not addressed until the hearing starts. This places tremendous control in the hands of the arbitrator and can lead to misunderstandings about when documents are either admitted unexpectedly or rejected by the arbitrator.

Remember that, in the absence of specialized circumstances, the jurisdiction of the arbitrator is determined by the arbitration agreement, if one exists, or by the arbitration submission. If counsel do not communicate or create a formal agreement, surprises or an undue waste of arbitration time can result.

Selection of the arbitrator. This is a critical step in client representation and process control. Even where an arbitration agreement specifies the provider organization, the identity of the arbitrator typically is not specified. Thus, in the absence of a stipulation, the arbitration provider generates a strike list to provide the parties with a choice. If the parties are unable to choose, most private providers select an arbitrator at random, subject to local disclosure rules.

Arbitrators come with varying demeanors and attitudes. Some are known to compromise, others are better at complex legal or technical issues, and some are better versed in substantive law than others.

If the case needs strong management to enforce the rules of evidence or to ensure that requisite timetables are met, the parties should select an arbitrator known for that level of management, not one who simply permits arbitrations to meander.

If the lawyers want a full hearing and do not want an arbitrator to "split the baby," they should select an arbitrator who is not known for efforts to compromise in issuing awards.

Discovery before the hearing. Pre-hearing discovery is a considerable source of frustration for parties. Because arbitration is intended to be streamlined and cost-effective compared with trial, legislation and private arbitration rules generally limit the discovery process. Nonetheless, practitioners often feel uncomfortable proceeding to hearing without having engaged in meaningful discovery.

If the parties can agree on a discovery plan, the arbitrator is obligated to comply with it. Even without an arbitration submission, disputes pertaining to discovery and admissibility of documents may be avoided through a pre-hearing conference or a conference call between the arbitrator and the attorneys. This will result in an arbitrator's order addressing the issues. Counsel should exercise control, starting with selection and moving to establishing a conference call to set out guidelines.

The brief. No activity can demonstrate a lawyer's disinterest in his or her case better than the failure to invest the time necessary to submit a meaningful brief to the decision maker.

A briefing schedule should be established in the arbitration submission or conference. A brief should be submitted to the arbitrator in advance of the hearing and exchanged by the parties. Attaching exhibits is often unnecessary.

In fact, unless the pre-hearing conference call established a protocol for joint introduction of exhibits, providing an arbitrator with exhibits before their admissibility has been determined could jeopardize the hearing because an item that is objectionable may be reviewed before the objection being raised.

Do not attach hundreds of exhibits to the brief. Instead, refer to transcripts and reports by page number, or page and line, and attach a copy of the operative page with the key information highlighted. At the hearing, the entire transcript or report may be introduced.

Remember, the purpose of an arbitration brief is impact. The opening paragraph should be a clear statement of what the lawyer intends to tell the arbitrator concerning the nature of the case and the remedy sought.

The hearing - who is running the show? As counsel for a party, you affect the outcome more than you realize. True, the outcome of arbitration is determined principally by the facts and the law. However, your professional conviction, the manner in which you present the evidence, and the testimony of the witnesses are keys to obtaining a desired result. Lazy lawyering conveys disinterest and a lack of commitment to the claim.

A lawyer in control of the case also takes the following steps to obtain the best possible result:

  • Use exhibits to demonstrate that you believe in your case. These should illustrate the evidence while providing an organized road map to focus both your and the arbitrator's attention on the important issues.
  • Counsel should take witnesses through a dry run of anticipated questions to assist in understanding the most effective ways to respond to examination. It is hard to believe the number of witnesses who appear unprepared. Witnesses should not be coached, in the sense that their testimony is rehearsed, however. This will come out during cross-examination and affect credibility.
  • Most lay witnesses tend to talk too much or become argumentative or defensive in cross-examination. Preparation is the key to avoiding these traps and ensuring that your witness will present the most effective testimony possible. Tell your witness not to argue or explain unless an explanation is requested. Advising your witnesses to present calm, accurate and truthful testimony will help obtain a desired outcome more than perhaps any other action.
  • Use objections sparingly. You're playing to a small audience. If an objection will not block the receipt of evidence totally, the objection should be avoided and the issue addressed during cross-examination. If the arbitrator repeatedly overrules objections, consider that a sign that you are objecting too frequently. That said, when opposing counsel is leading the witness excessively or the objection will block otherwise inadmissible evidence, then you should object in a manner consistent with the arbitrator's personality.
  • Identify and deal with the problems in your case. Every case has its problems. You control the effect of these problems on the arbitration panel. If the warts are brought out through cross-examination and counsel appears to be hiding them, the outcome could be disastrous.
  • Avoid becoming too dramatic in closing argument. Closing should be concise, focused, well-reasoned and calm. Do not shy away from telling the arbitrator what you think is a fair recovery and why. If you are the plaintiff, ask for a specific amount of money. If you are the defendant, give the arbitrator options depending on potential findings.
Lawyers who control the arbitration in these ways can save their clients from unpleasant surprises at the end. Remember, the lawyer, not the arbitrator, should set the ground rules.

Alexander S. Polsky, Esq. is a JAMS neutral and an adjunct professor of law at University of Southern California. He provides mediation, arbitration and discovery referee services nationwide.

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