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Bar News - May 14, 2010


Arbitration Law: What the Arbitrator Needs to Render Justice

By:

The arbitration process is an adversarial process. The litigants in the process should and must treat the process as if they were presenting the case to a judge or a jury. Obviously, the amount of preparation, the presentation, and the expense related to the preparation and presentation must comport with the magnitude of the case and the risks presented by the case. The arbitration will not be successful if appropriate preparation and expense is not devoted to the process.

Arbitration Brief

The parties should submit an Arbitration Brief, together with all Exhibits, at least three days prior to the hearing. The Brief should be concise, yet thorough, and should summarize the case issues and advocate oneís perspective with respect to those issues, referring to specific Exhibits where appropriate. The Exhibits should be tabbed and date stamped for easy reference, both during the proceeding and deliberations.

Outcome Sought

There should be a clear articulation in writing, verbally or both, of precisely what the parties seek, i.e., an award of $1,000,000, a finding of no liability, an award rendered for the plaintiff in the amount of/range of $100,000, not the $1,000,000 sought by plaintiff; a finding of no liability.

Opening Statements

Opening Statements are recommended. They should not parrot whatever has been submitted in writing but, rather, emphasize the one, two, or three central issues and facts that will control the presentation.

Legal Issues

If legal issues exist in the case, an appropriate Memorandum of Law should be submitted. If the legal issues are known prior to the submission of the Arbitration Brief, the Legal Memorandum should be submitted with or as part of the Arbitration Brief. If the legal issues arise as a result of the Arbitration Briefs, the Memorandum should be submitted as soon as possible, either in advance of the hearing or at the commencement of the hearing.

Supporting Witnesses

If the case is an injury case with alleged physical suffering and/or emotional distress, present a friend, co-worker, or supervisor who can testify on those issues. Arbitrators, much as jurors, are underwhelmed by the whining plaintiff.

If the case involves experts and an expert is the key on liability or damages or causation or contract interpretation, present the expert live. Arbitrators, much as jurors, need to judge the credibility of the witness during direct and cross-examination.

If the case is an environmental or toxic tort case, present the soil scientist, the remediation specialist, the epidemiologist. Arbitrators will be more convinced by live testimony than by charts, graphs, and studies.

Power of Persuasion

Arbitrators are persuaded by the same evidence that persuades a jury:

Proving/contesting liability and damages
(a) In a personal injury case, proof of consistent medical treatment; or, if defending, proof of identical symptoms/injuries three months previous.

(b) In an economic loss case, the proof of consistent earnings prior to the contract breach, proof of a lack of earnings subsequent to the breach, and proof of mitigation attempts; or, if defending, proof of inconsistent earnings and failure to mitigate.

(c) In a wage loss case, proof of earnings history, i.e., W-2ís, 1099ís, proof of disruption, and proof of mitigation attempts; if employability is contested, consider using a vocational expert.

(d) In a personal injury case, proof that the defendantís action or inaction was unreasonable and a substantial cause of the accident. An accident does not in and of itself prove negligence. In a contested liability case, bring in lay witnesses, demonstrative evidence, experts.

(e) In an environmental case, proof of specific discharge(s) - date(s), time(s), quantities, and proof of no other known discharges; if defending, proof of discharges from other sources - co-defendants or DeBenedetto defendants.

(f) In a toxic tort case, proof of exposure(s) - date(s), dose quantities; or, if defending, proof of another exposure that could cause same disease, i.e., lung disease - cigarettes.

(g) In an economic loss case, proof that the loss flows from the breach; or, if defending, that the loss is the result of a downturn in the general economy or a particulate industry. Consider using a forensic accountant, industry expert, or other economic expert.

Rules of Evidence

Generally, the technical rules of evidence are relaxed. Counsel should address this issue pre-hearing and agree in writing on what rules will be employed and whether affidavits/expert reports will be admissible and by what date they must be exchanged. Exchange reports consistent with whatever discovery agreements, control or whatever rules of the tribunal dictate.

Burden of Proof

The burden of proof is not relaxed or altered. The party asserting a claim, counterclaim, or affirmative defense has the burden of establishing by a preponderance of the evidence. Thus, if medical causation or reasonableness of medical treatment is contested, a medical opinion is required. Present a reasoned, factually-supported opinion supporting/controverting the nexus.

If each side has an expert, take and present video depositions or bring the expert live. It is almost impossible to properly evaluate contradictory opinions from a written report.

Power Point Demonstration

If the case can justify the time and expense, consider a power point presentation. We live in a visual society; let the arbitrators see the key contract language, medical literature conclusion, tax returns, BOCA Code provision, maps depicting discharge flow, and expertís response on cross examination.

Closing

Make a closing. If the proceeding has been lengthy, take a short break to allow everyone to refocus. This is your opportunity to make your last plea. Tie in your opening position with the evidence to generate your storyís ending. This is a perfect opportunity for power point use.

End strong Ė Say, "My clients deserve ____________________; justice requires ____________________;" or "we should all sympathize with the plight of the plaintiff but the panel cannot render an award for the plaintiff because liability has not been proven."

Anecdotal:

Having been privileged to sit as a sole arbiter or on an arbitration panel hundreds of times, I will share one personal observation.

On a recent multi-party, multi-day proceeding that went on each day, including the weekend, one set of counsel was severely handicapped because a corporate principal failed to testify. His testimony was substantively important. The conclusion that was drawn by the arbitrators was that his testimony would not have benefited counselís position.

All individuals actively involved in the events which are the subject of the Arbitration Hearing should testify; do not allow all the arbitrators to speculate as to why they did not testify.

William A. Mulvey of the Mulvey Professional Organization in Portsmouth has written for Bar News on the subject of arbitration and mediation a number of times. You may contact him at mulveyw@mulveypa.com.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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