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Keys to Success in Arbitration
The Advantage: 4.08: V.5, 1st Edition
With fewer cases going to trial, there has never been a better time to reconsider and redesign one’s litigation strategy. Although there are a number of tools and techniques gleaned from jury trial experience that should be applied to arbitration hearings, there are also unique constraints and issues of arbitration that require informed application of those tools and techniques. This article identifies some of the most common concerns of arbitrators and provides attorneys with some tools and techniques to engage arbitrators in a more effective and persuasive manner.
The Case Strategy: Developing the Narrative and Case Themes
Arbitrators, like any audience, seek clarity and understanding, and because their role is to render a decision, they are also seeking compelling reasons to prefer one side over the other. In a recent interview, the Honorable Charles S. Burdell (ret.) stated that first and foremost the attorney should present a compelling framework for why their argument advances the cause of justice.
In any presentation to a court or arbitrator the first few sentences should state a clear, easily understood reason based in justice why the proponent should win. Citation to case law or statutory authority is saved for later. Most judges and arbitrators want to be fair and they should be told at the outset why ruling in the manner requested allows them to reach that end.
The remedy sought and why it is fair and just, is encapsulated in the case theory -- the proponent's story that lays out and characterizes in meaningful and efficient ways the events and parties. Recent survey results show that most arbitrators think attorneys should do a better job at presenting their evidence in organized stories. At the heart of every matter lies a story that has to be understood and interpreted by someone else.
One of your strategic goals should be the construction of a coherent and concise narrative that serves as the organizing method for the facts, evidence, and testimony in the case, and one that resonates with the arbitrator. Because arbitrators, like any trier of fact, come to the table with their own predispositions, experiences, and knowledge, which may impact the manner in which they understand the case facts and theory, the narrative developed must ring true or fit with what the arbitrator already knows or thinks he knows.
Additionally, your strategy should focus on language. Most litigators clearly understand the importance of appropriate language in jury trials, and arbitration is not much different in this regard. The goal is to shape the way arbitrators think about your case by carefully crafting and using words that accurately, vividly, and judiciously characterize your case. Appropriate language can enhance a more favorable understanding, retention, and evaluation of your client’s case. In arbitration, hyperbole and antagonistic language are the hallmarks of desperation and only weaken your position.
Finally, the development of your strategy must take into account a chief complaint of most arbitrators: lengthy hearings. Norman Brand sums up the importance of focusing your case presentation to maximize efficiency, while still preserving efficacy:
Remember that arbitrators, unlike judges, are busy entrepreneurs…Professional arbitrators want to enjoy a reputation for expeditiously hearing and deciding cases. Knowing this, shrewd counsel sharpens the focus of his case, shapes the introduction of evidence to prove (but not over prove) necessary legal theories, and judiciously seeks to streamline the process…Winning ultimately depends on the strength of your case, but assisting the arbitrator in efficiently moving the case toward conclusion can help your chance of prevailing by underscoring your confidence in the case. (emphasis added)
The Opening Statement and Closing Argument
The function of an opening statement for arbitration is no different than that for trial: to establish the narrative foundation of your case in a manner that cognitively orients and psychologically motivates the arbitrator to want to hear more about your case, process the evidence in your favor, and render a resolution favorable to your client. The technique used in an arbitration hearing, however, requires some fine-tuning.
First, your opening must be as clear, concise, and compelling as possible with a special emphasis on concise. Arbitrators are not interested in hearing you laboriously pour over every detail and re-state everything written in your brief. “When this occurs, at least two messages are sent to the arbitrator: you believe that he did not read the brief or that, if he read it, he did not understand it.”
Second, because arbitrators, unlike juries or even judges, are often selected because of their expertise in a substantive area, and since most arbitrators are or have been practicing attorneys, spending time explaining some issues or legal concepts is often completely unnecessary. If you explain concepts that the arbitrator is already familiar with, you are contributing to the efficiency problem. You must come to the hearing knowing what your arbitrator(s) know. If you do not know, ask. Arbitrators will respect the fact that you are trying to expedite the process.
Depending on the particularities of the case and the arbitrator, an opening might not be given; however, if the opportunity presents itself, take it. Even if the case has been presented clearly and thoroughly in your brief, a well-constructed opening statement provides a means to clarify the issues and make use of the powerful potential of oratory.
Audiences not only evaluate messages, they also evaluate non-verbal cues, whether intended by the speaker or not. Therefore, one’s demeanor—the way one gestures, moves, makes eye contact, uses their voice—sends important signals to the receiver of the message about your credibility, confidence, competence, and overall command of the case and the arbitration process. To make sure that you are sending the right message, there is no better preparation than rehearsing the entire presentation with an audience, integrating technology and graphics, and employing audio-visual feedback in a structured and facilitated feedback session. The opening statement offers the opportunity to distill the case, to manage the expectations of the arbitrator, and to entertain (meaning engage) the arbitrator so that they understand your case, see how it furthers justice, and increases their desire to hear more from your witnesses.
If closing arguments are made, all of the admonitions about making sure one’s opening is clear and concise apply. “Closing arguments that re-hash the evidence may be interesting to the parties but do not help the arbitrator. Ask the arbitrator what issues should be addressed and whether those issues could be best addressed through closing argument, in written briefs or both.” You are attempting to win your case by meeting the needs of the arbitrator(s): Provide clear reasons to prefer your client’s case; detail the “promises” made by both sides in the openings; demonstrate how the evidence presented during the hearing was more consistent with your case theory; and help the arbitrator justify their decision by addressing the facts and evidence through the lens of the guiding law.
Witness Testimony
In a survey of construction arbitrators, topping the list of effect persuasive techniques was a focus on the facts through witness testimony. “There is nothing like a good witness to bring the contents of a document to life in the mind of an arbitrator.” Arbitrators will use their eyes and ears to judge the credibility of a witness just as a juror would during a trial. Consequently, it is equally important for witnesses to effectively communicate their messages and avoid non-verbal distractions that could be interpreted by arbitrators as indicators of dishonesty or incompetence, among others.
Preparing the witness in a realistic setting is critical to helping them develop the confidence and competence to testify before an arbitrator or panel of arbitrators. For most, the forum is unfamiliar, and the more you can make them comfortable with the “rules” of the hearing, the more you can make them comfortable understanding how: 1) they can firmly, but with civility, stand up to the efforts of opposing counsel; and 2) openly and willingly address possible questions from the arbitrators. Role-playing using audio-visual feedback is always the most productive way to prepare your witnesses.
Graphics
In the survey mentioned earlier, arbitrators responded with an overwhelming “yes,” when asked if graphics assist them in arriving at appropriate awards. “As with the presentation of evidence, the use of exhibits, such as charts and summaries, can be a very persuasive strategy.” Even though graphics are consistently mentioned as one of the most effective persuasive tools you can use, they are often overlooked in arbitration. They shouldn’t be since they are helpful at every stage of the hearing: opening, witness testimony, and closing.
Good graphics can reduce complexity, help deliver themes, and ensure effective communication in a short period of time. Arbitrators are no different than jurors when it comes to an important communication principle: people respond favorably to those who can make sense out of the confusion--bring order to the chaos. If you are contributing to the chaos and the other side is not, the arbitrator has an easy choice to make—turn to your opponent for guidance. Obviously, it is better if you are the one controlling the presentation of information. If the arbitrator relies on your timeline or your process-graphic to help him or her understand the case, you have the advantage over your opponent.
The benefits of using demonstratives for arbitration were recently made clear when an attorney called to share with us how the arbitrator repeatedly referenced their timeline and explanation boards (the other side had no visuals), even asking to keep them while he made his decision. These visuals were critical in relaying the key themes and were helpful in leading the arbitrator to view the case in their terms.
Conclusions
Effective preparation for arbitration is not unlike effective preparation for trial, with a heightened focus on efficiency. In an arbitration hearing you must deliver powerful advocacy in a short amount of time. Every decision that is made, every piece of evidence that is used, every witness that speaks, and every visual that is constructed must be done with this goal in mind. An informed arbitration strategy should include the same rigorous preparation one would expect with a case intended for trial. A positive outcome begins with the development of an overall strategy, translated into an effective and efficient case narrative that powerfully positions your witnesses and testimony.
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