While arbitrations are less formal than trials, and the rules of evidence normally do not apply, there are still “paper” exhibits to be introduced through sworn testimony. There can be arbitrations where all exhibits are electronically scanned and pulled up via laptops by all involved, but most of the time exhibits are copied and placed into multiple exhibit books prepared by counsel. Typically, the scheduling order issued by the arbitrator has pre-hearing deadlines for the exchange of all proposed hearing exhibits. Exhibit books are then created, and on the day of the hearing both sides show up with their own set of exhibit books. But this process of each side bringing their own exhibit books is a mistake. It can cause confusion at the hearing because many times there are identical material exhibits that have different exhibit “numbers,” and counsel, the witness and especially the arbitrator are looking around to find the right exhibit book. Why does the “contract” at issue or key letters or emails have to be Exhibit 24 in one side’s exhibit book, but Exhibit 43 in the other side’s exhibit book?

All “trial” lawyers are taught early in their career to pay attention during a trial to the judge and the jury during witness testimony. How are they reacting to a witness or lawyer? Are they shaking their heads yes or no, nodding off (it can happen), suppressing a laugh or scowl, paying attention, or even rolling their eyes? These reactions can be invaluable to lawyers. It is difficult to gain such insight while you are questioning a witness. Many times, the questioning lawyer will ask a client or co-counsel to watch for any tell-tale reactions. This in-trial strategy is also helped immensely by the way a typical courtroom is set up: separate counsel tables facing a judge who is sitting up high; a jury on one side of the courtroom; and a witness “box” to the side of the judge. In a very large courtroom, counsel tables may be five or even 10 yards away from the bench and witness. Lawyers sometimes are also tied to a podium. A lawyer can then, pretty easily, without being too obvious, observe any reactions, whispers to co-counsel, or notes that are passed.

It is the time of the year for ALL good lawyers to clean up their act because Santa is coming. This same type of thought that goes into “being good” should factor into how you treat the arbitrator who will issue an award that either results in coal or a lip-smacking candy cane being placed in your law firm stocking hung snugly by your desk. Should Santa’s cookies and milk be put on the mantle near the fireplace for easy access (or maybe for a hungry elf) or out of his immediate reach? Of course not, says Rudolf the partner. A serious mistake I see, while both acting as an arbitrator or counsel, is when lawyers do not treat the arbitrator like a judge and do not think through how they can make things “easier” for the arbitrator. All those nuances we were taught as young “trial lawyers,” by our mentors, on treating judges with kid snow mittens, for some reason, go out of the decorated and frosted office window in an arbitration.

As the late Kenny Rogers sang, when playing poker, “you’ve got to know when to hold ‘em, know when to fold ‘em.” The same analysis equally applies to preparing for an arbitration hearing and determining what claims/defenses will actually be presented at the hearing. Without repeating the title of these series of blogs, one serious mistake I see, while both acting as an arbitrator or counsel, is

After going through arbitrator selection and the initial administrative hearing, you not only have an arbitrator, but a scheduling order and a hearing date. Typically, in court, there would then be the start of a tedious and expensive pre-hearing “discovery” process. The mistake: not knowing your arbitration pre-discovery rights and limitations and not having a discovery “plan” in place that takes into consideration these limitations. Recall arbitration is a matter of contract. Does the arbitration clause address pre-arbitration discovery? Typically, a clause will incorporate by reference the rules of the group that will be administering the arbitration, such as the American Arbitration Association (AAA). What do these rules provide, if anything, on pre-hearing discovery? Recall my previous post discussionabout effective drafting of arbitration clauses. The lawyer drafting the clause may have referenced some rules that may call for full bore discovery, when the pitch to the client to agree to arbitration was that discovery would be limited. The AAA also has separate rules for complex cases. You have to know what discovery you can and cannot obtain according to the clause and the rules, and be prepared to negotiate with opposing counsel if you cannot get what you need.

So, your arbitrator (or Panel) is appointed and within a few weeks a conference call is scheduled between counsel and the arbitrator. Many lawyers come unprepared, lured by the supposed “informality” of arbitration. Huge mistake. This is the first “impression” you and your client’s claims/defenses will make on the arbitrator. She has read whatever has been submitted and will be ready to ask questions. What have you submitted in advance? A one page, filled out demand? A form denial? While a detailed demand or answer, like a court complaint or answer, is not required, counsel should make sure that such a filing is in place prior to the conference. This educates the arbitrator and makes you look prepared.

This post is a continuation of the Top 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make before, during, and after arbitrations in which I served as the arbitrator. As stated in the previous post, there are pros and cons to binding arbitration versus trial in a court that go beyond a series of blog posts. In many instances, representing a party in an arbitration requires more due diligence and work than a trial. Great “arbitration” lawyering is therefore essential but many times does not happen.