Arbitration Slip-Ups: How To Avoid Them
Many qualified attorneys fail for the simplest things and less nerve-wracking proceedings than an actual court trial. When the rooms are a bit looser, even seasoned advocates are having trouble to find their balance in the hearing room and the expectations perhaps a little more blurry.
It is more important than ever that advocates know how to approach arbitration hearing as arbitration becomes an increasingly common way of resolving disputes. Here in this article are the list of easily correctable mistakes that can help you serve well as an advocate at your next arbitration.
●Assuming your arbitrators are experts in your subject matter- Arbitrators know about many cases across many different industries. They are experts in applying the facts to the law and not in the manufacturing process of the left-handed widget. Every expert you examine should be able to explain complex concepts to laypeople and every technical fact must be reducible to plain English. You aren’t doing your clients any favor by using what they already know is and how it works if you prefer that the key to your case is the Gazornenplotz Process.
The solution to this is that you have to be ready to have someone testify the ABCs of any method, theory or technical detail in the simplest form.
●Binders full of exhibits- 2019 is here and the aged binder should be over. They don’t have to flip from page to page of your exhibits like they were before when they are trying to focus on your evidence. They don’t want to be balancing your giant binders on their laps or have them take up all their table space because many arbitrations happen in close quarters.
The solution to this is that you need to enlarge relevant parts of the documents and digitize your exhibits and project them.
●Making too many objections- You are not in court. Keep only the important things on your objection.
●Not making objections- You are creating a record even though you are not in court. If something is clearly objectionable then you should object it. If you are not objecting something that is objectionable, then others will think you are not paying attention or unskilled. It can imply a poor message to the people who will be deciding your case.
●Treating cross-examination like a deposition- Understanding the implications of your questions is what experienced arbitrators do. They already know the facts that you are trying to open. Arbitrators need to be engaged in all your stories.
●Not telling a story during your opening and closing- They need a compelling story to stay engaged in your case even though most arbitrators are lawyers. Be human, be interesting, be concise. Treat us like a jury, keep us engaged and draw us into your client’s narrative.
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●Trying to make small talk with the arbitrators- Arbitrators also have their boundaries. You can only talk to them things like when you are talking about the case in everyone’s presence and on the record. Even when both parties are present, when you try to talk to them about other things, you put them in a very difficult position. They need to always look impartial and they are required to do it. A claim of bias based on a seemingly innocent comment can lead to a successful appeal of their award. And they hate being bench-slapped. They need to maintain impartial demeanor and it means they can’t laugh with you about the news or commiserate with you about the loss of a local sports team. You have to respect boundaries. And let us be the anti-social grumps that we are required to be.
●Bogging everyone down in procedural matters- Arbitration is an informal process even though the procedure is important. The proceeding is going to go forward unless a critical pleading has been filed, a claim is untimely, or some important discovery has not been exchanged. They become angry when you create needless delay by forcing them to rule on one trivial procedural motion after another.
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●Not showing us math of your damage calculations- Arbitrators need to know how you got your numbers. All your numbers especially your damages. They would make sure their calculations are based on reality if they want to make an award. If they don’t know how you got your numbers, they are going to try calculating damages from scratch when they deliberate. And it may not work out so well with clients. Consider that arbitrators are lawyers and there is no math on the LSAT.
●Not answering the questions arbitrators ask- They usually have a good reason when arbitrators ask questions. They ask you and you witness a question. It is not helpful when you treat them like opposing counsel and try to sidestep the question they asked. The flexibility and confidentiality of arbitration are what helps them get to the heart of the matter without anyone having to worry about moments that can happen in court. Just tell us what we want to know for the sake of your clients and of the process.
Cover Photo Credit: My Next Move