If you’re preparing for an upcoming arbitration, make sure your “hot docs” stand out in your exhibit notebook by using special tabs or color codes.
You should also place the documents in the order in which you plan to present them, so that the arbitrator can easily follow along.
Those are two tips from experienced arbitrators, who say the biggest mistake practitioners make is confusing the arbitration room with the courtroom.
“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,” says Peter Khalil, director of Northwest Mediation LLC in Vancouver, Washington. “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.”
Another tip: don’t get bogged down in procedural squabbles. Arbitration is meant to be informal. Nitpicking will only irritate those you are trying to win over.
10 Tips for an Awesome Arbitration
- Know your arbitrators. Even though you might have had a hand in selecting one or more of them, it is still worthwhile to do some homework on their backgrounds, experience and familiarity with the subject matter.
- Play to the room. Arbitrations sometimes take place in close quarters or oddly-configured rooms. If possible, scout the location in advance so that you will feel comfortable on game day. Make it as easy as possible on the arbitrators. If they are seated at a small table, you don’t want them fumbling with your giant notebook or sorting through a jumble of exhibits. If logistics allow it, consider digitizing your key documents and presenting them visually.
- Don’t schmooze. The informality might encourage you to chitchat with the arbitrators. Don’t. “The only time you should talk to us is when you’re talking about the case in everyone’s presence, on the record,” says Khalil. “You put us in a very difficult position when you try to talk to us in any other context. 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.”
- Tell a great story. Your narrative should be concise, human – and most important – compelling. Try to boil the theme down to a single sentence. Your opening statement is an opportunity to tell the story from your perspective, says attorney Craig Roswell. Your closing wraps it all up in a logical, memorable and persuasive way.
- Don’t assume the arbitrators are experts. Be prepared to break down technical issues so that a lay person can understand them. The arbitrators will let you know – through verbal and nonverbal cues – whether they get it or not.
- Prune unnecessary material. You might not need to include all the medical records in your notebook, but you should bring them along, just in case. Highlight the most relevant sentences or paragraphs in documents.
- Do the math. “We need to know how you got your numbers – all your numbers, but especially your damages,” says Khalil. “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.”
- Be responsive. If the arbitrator asks a question, answer it. You can always explain or clarify, but don’t dodge, weave or evade.
- Don’t leave your best stuff in your briefcase. “In many instances, a party can introduce evidence in an arbitration that would be inadmissible in litigation,” says Roswell. “[D]o not assume that you should not present certain evidence because it is inadmissible. Present the evidence and allow the arbitrator to determine whether that evidence is compelling enough to be admitted. You would hate to find that you did not present the ‘smoking gun’ for fear of it being inadmissible only to find that the arbitrator’s ruling would have been different had that smoking gun been presented.”
- Be professional. Pretend you are standing before the U.S. Supreme Court and not in a conference room at the Holiday Inn or wherever.
What tips would you add to this list?
- Northwest Mediation http://www.nwmconsult.com
- Niles Barton http://www.nilesbarton.com/articles/perspectives-from-the-arbitrator-tips-for-a-successful-arbitration
- ABA Journal http://www.abajournal.com/voice/article/here_are_11_tips_to_avoid_arbitration_slip_ups/
Jay Reeves practiced law in North Carolina and South Carolina. During the course of his 35- year career, he has been a solo practitioner, corporate lawyer, legal editor, Legal Aid staff attorney and insurance risk manager. Today he helps lawyers and firms succeed through marketing, work-life balance and reclaiming passion for what they do. He is available for consultations, retreats and presentations (www.yourlawlife.com). Contact firstname.lastname@example.org or 919-619-2441 to learn how Jay can help your practice.