Arbitrator hearings rely more heavily on counsel’s representations than judges or juries. This is as of the loosened evidence rules, less formal hearings, and smart decision-makers.
The Arbitration hearing comes out to be fundamental and strong as the parties come in place of solving issues in a very vivid and professional manner.
If your arbitrator believes you misrepresented a case’s holding, a witness’s deposition testimony, or the content of a crucial document. They will likely assume that you don’t understand your case or are attempting to deceive. Either conclusion slams the brakes on your credibility.
Never mention anything to an arbitrator unless you’re certain it’s accurate. Don’t guess if you don’t know the answer; state, “I don’t know the answer but will obtain it for you as soon as possible.”
Acknowledging that you don’t know everything, as well as acknowledging some of your opponent’s (non-critical) points. It can help you gain credibility (given it doesn’t happen frequently).
Below are many rules which tell about the various guides to winning an arbitration hearing:
Rule 1: An Arbitrator or the opposing counsel can be trustful.
Many arbitrators take part in the process because they are bored of lawyers calling one another names. Fretting about discovery and screaming that the opposing side’s stance is ridiculous, dishonest, or in bad faith.
They’ve come to arbitration because they want to engage with mature lawyers who can vigorously advocate for their clients. While also dealing with opposing counsel courteously and cooperatively.
Make every effort to establish a positive working relationship with that advisor. Do not retaliate if the other side starts throwing mud.
Arbitrators admire lawyers who get right to the point. Without berating the opposing party or moaning about how unfairly they were handled. Choosing the high path in arbitration will put you ahead of the pack.
The arbitration demand or response, which includes several claims or defenses with little possibility of success, is another threat to your credibility. These are make-weight distractions that should never have been in the pleading, according to experienced arbitrators.
Rule 2: Separate out any implausible claims and defences.
Their presence will indicate that you haven’t yet determined your client’s strongest stance and that you’re hoping for a scattershot missile to hit a target.
Arbitrators are not happy with such diversionary techniques.
They want to know right away what the lawsuit is all about, as well as what laws and evidence each side is relying on to back up their claims.
Rule 3: Motions can be loss of time and money.
Many inexperienced lawyers file the same motions in arbitration as they do in litigation.
Motions to dismiss for failure to state a claim, motions for a more definite statement, motions to compel discovery, motions for sanctions, motions in line, motions for summary judgment (also known as “summary disposition” in arbitration), and so on.
This is almost always a major loss of time and money.
Rather than having lawyers fling long missives back and forth, most arbitrators prefer to deal with procedural matters via conference calls.
They are also well aware that there is no appellate body in the arbitration to overturn an erroneously granted motion and that declining to hear a party’s evidence is one of the few reasons for invalidating judgments under the Federal Arbitration Act and most state arbitration legislation.
If you file no motions and get ready for the hearing as soon as feasible, you will save your client money and demonstrate your arbitration experience.
Rule 4: Make an opening statement that is brief but also impactful.
If you presented your case in a pre-hearing brief, the arbitrator has almost definitely read it and will not appreciate hearing it again.
Keep your opening brief, even if there were no pre-hearing briefs, concise, presenting an executive summary of your argument in chronological sequence without delving into the weeds. Try to condense some of the most important issues into phrases that the arbitrator will remember. Mention any strong evidence you have.
Take the sting out of your opponent’s evidence that hurts you but isn’t fatal by noting it and providing other evidence that casts it in the least detrimental light. Don’t exaggerate your point but lay it out concisely, and plainly. Do not debate; that will take place after the hearing.
Rule 5: Don’t worry about evidence’s admissibility; instead, consider it’s depth and density.
Seeking to exclude hearsay, a lay opinion, or a business record for which a thorough shop book rule basis has not been created is a practically certain flag of a newbie arbitration counsel.
In arbitration, the norms of proof are rarely in the application (except as to privilege and settlement offers).
As a result, practically all evidence presented by either party will be accepted “for what it’s worth,” making arguing over admissibility a fool’s errand.
Rule 6: During direct examinations, do not ask leading questions.
Direct examinations in which your witness agrees to your version of events are unmoving to arbitrators. It takes a lot of effort to conduct a direct examination without the use of leading questions. It necessitates meticulous planning on your part, comprehensive witness preparation, and multiple dry runs.
However, if your witness can relate a coherent account in their own words, that direct examination will have a far bigger influence on the arbitrator than any leading you can do.
Rule 7: Cross Examinations
In Cross-Examination, Less Is More Ineffective attorneys feel that they must address everything an opposing witness stated during cross-examination. This is a huge blunder.
It allows the witness to repeat the many portions of direct testimony that are impossible to refute simply by questioning them.
Considerably more effective cross-examination is one in which you question the witness about a few comments made directly and get them to admit that the statement was wrong or, better yet, false.
Rule 8: No Bull, No Misquotations, No Typos in Briefs
Your briefings should all be concise, clear, and concise. Make your arguments flow naturally from the facts and the law. Do not exaggerate your point, harp on the opposition, or use rhetorical flourishes. All evidence and legal citations should be thoroughly checked and double-checked to ensure that they are accurate.
Rule 9: Provide the Arbitrator with the Tools He or She Will Need to Write the Award You Desire
Most arbitrators are overwhelmed with information by the time they get to closing arguments.
Poor lawyers exacerbate the problem by spouting comprehensive factual reports, dates, names, damages computations, primary and alternative legal theories, testimony quotes, exhibit numbers, case citations, and other information that the arbitrator is hurriedly trying to write down.
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