You’re Not in Court: Practical Advice for a Successful Arbitration
by Leah Albert
Preparing for an arbitration? Many litigators mistakenly assume that their “tried-and-true” courtroom tactics will be equally successful in an arbitration proceeding. However, trial techniques and strategies that may yield results in a jury trial may be off-putting to an arbitrator. You may know courtroom rules. But what about arbitration rules?
Unsure of how to prepare for arbitration? You’ll have better results if you follow these rules for arbitration, which will help ensure a smoother experience for you and the arbitrators.
Before the Hearing
Check Current Rules and Procedures
Rules and procedures (such as those relating to jurisdiction, arbitrability, and discovery) differ depending on the tribunal for your case. For example, a consumer dispute may not have the same rules as an employment dispute. These rules are frequently updated and changed, so make sure that you’re aware of the current rules of the governing body for the arbitration.
Another smart arbitration guideline is to tailor your discovery to the size and complexity of the case. If possible, stick to one set of discovery. If you’ve received all discovery and it is deficient, document your effort to resolve the dispute. Only file a motion to compel if all efforts to resolve have failed. If an arbitrator rules on your discovery motion and you feel that you still need relevant documentary evidence, then and only then should you consider a motion for reconsideration. Raising a motion to reconsider a trivial matter wastes your client’s money and the arbitrator’s time.
Be Mindful of Sanctions
The rules of the governing body may allow sanctions if a party fails to comply with discovery orders. Even an arbitration proceeding that has been created by contractual arbitral rights can confer the right to impose sanctions, including attorney’s fees and costs.
Consult With Opposing Counsel
Talk to opposing counsel and set up a schedule for the calling of witnesses before the hearing. Waiting until the hearing means that some of your opponent’s witnesses may not be available, and this may lead to an adjournment for lack of an available witness. Consult with opposing counsel on the length of time anticipated for the arbitration and strive to accommodate scheduling concerns before the hearing starts. If you think you’ll need more time for the hearing, agree to back-up dates with opposing counsel before the hearing.
Be Specific in your Statement of Claim
Provide as much information as you can in your statement of claim so that the arbitrator can determine whether a potential conflict of interest exists. Setting forth a specific statement of claim also helps the arbitrator make informed decisions in discovery disputes.
Prepare Ahead of Time
Before the arbitration, comply with all deadlines set forth in the initial scheduling order. File your witness list promptly and update it as necessary so that the arbitrator can ensure there are no new conflicts of interest.
Limit the size of your exhibit binders — exhibit books shouldn’t weigh more than a pound or two. Arbitrators often must toggle back and forth through several exhibit books, so make it easy for them to do so.
If settlement is in the offing, wrap up loose ends and notify the arbitration tribunal as soon as possible that the case has settled. (Note that some arbitrators attempt to discourage last-minute settlements by charging a cancellation fee if the matter is settled less than one week of the hearing.)
During the Hearing
Following a few rules of decorum and courtesy during the hearing itself can make a good impression on the arbitrator and help speed up the arbitration process:
- Coordinate the calling of witnesses with opposing counsel.
- Provide opposing counsel and the arbitrators with identical exhibit books.
- Ask whether the arbitrator has a preference to font and size for documents. Follow those preferences and stick to the brief and document page limits.
- Behave courteously to opposing counsel. Don’t argue with opposing counsel; address your objections to the arbitrator. Avoid insulting your opponent.
- Leave the theatrics to the courtroom. That means not rolling your eyes or snickering when opposing counsel is speaking, regardless of whether the arbitration is in-person or via Zoom. Arbitrators don’t look upon this kind of conduct with favor.
- Never point toward or interrupt the arbitrator.
- Don’t interrupt opposing counsel with evidentiary-based objections. Arbitrators are experienced and will automatically discount testimony that is based on hearsay, lacks foundation, or is otherwise impeachable or suspect.
- Avoid “surprise” evidence.
- Make eye contact with all three arbitrators, not just the chairperson, to show that you respect all of them.
- Resist the urge to coach your witnesses. Arbitrators can tell very quickly when a witness has been coached, and that person’s testimony may be discounted.
Achieving the best outcome at arbitration starts with preparing ahead of time; being courteous to your opponent and to the arbitrators; and avoiding gamesmanship and theatricality. By sticking to the basics and embracing the overarching philosophy of arbitration — justice pursued with speed and economy — you’re more likely to be satisfied with the results of arbitration.
ABOUT LEAH ALBERT
Leah Albert has more than 34 years of experience as a highly skilled arbitrator with deep experience in large and complex cases. Her areas of expertise include: commercial arbitration; employment arbitration; banking and financial services arbitration; mergers and acquisitions and shareholder disputes; and consumer and B-to-B disputes. In addition to her experience arbitrating complex financial disputes, including options strategies and commodities transactions, Leah has extensive expertise in and experience with the Uniform Trust Code and the Prudent Investor Rule.