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In recent articles, I have discussed issues that should be considered by parties contemplating the resolution of their disputes through arbitration. These have included the following: • How should the arbitration agreement and pre-arbitration memorandum be prepared? • What issues fall within the scope of the arbitration? • Are there any limitations on discovery? • Will the rules of evidence apply? • Is the arbitrator bound by prior rulings of a court? • May the arbitrator grant preliminary or injunctive relief? • Should the arbitrator decide the case on the basis of legal principles or (as often occurs in Europe) on the basis of equity or fairness? What has not been addressed most directly, however, has been the actual conduct of the arbitration itself. In particular, it has been my experience that too often some attorneys view arbitration as a proceeding at which many of the formal and established practices utilized in court proceedings may be ignored. Accordingly, I wish to address a limited number of issues that I believe should be considered by attorneys at arbitration hearings. The Opening Statement Attorneys who wish to open their case before an experienced arbitrator will often begin with the following statement intended, presumably, to compliment the arbitrator: “In light of the vast experience of the arbitrator, and as I have already submitted a complete memorandum of fact and law, I will dispense with an opening statement and we can save time by proceeding directly to testimony.” In my opinion, not giving an opening statement at arbitration, except in the rarest of circumstances, is an unwise tactic for several reasons. First, the advocate can never be sure how carefully the arbitrator has read the pre-hearing memorandum or how much is remembered from that reading. Moreover, the attorney may be mistaken as to the quality and clarity of the memorandum s/he has submitted, and the arbitrator may not, in fact, have a full understanding of the law and facts. It is my experience that a party, as well as the arbitrator, always benefits from an opening statement. It assures that the arbitrator will fully understand the framework of the factual and legal basis upon which the party intends to present its case. In addition, if the hearing is continued for a period of time, attorneys are well advised to seek the opportunity to present a second abbreviated opening when the arbitration reconvenes. Often, no record has been made of the earlier hearing. While the arbitrator may have kept notes of that proceeding, s/he may not have a clear or precise recollection of everything that was then presented. In such circumstances, it is advisable for a party, before beginning to present further evidence, to request of the arbitrator the opportunity to present what I would call a “mini-opening.” This will allow the attorney to review in brief what the case is about and what evidence and testimony has been presented to that point, so that the arbitrator may become comfortably reoriented to the case. Subpoenas of Witnesses Attorneys generally recognize that arbitrators are statutorily authorized to issue subpoenas compelling witnesses to appear at the arbitration hearing. (Arbitrators are not currently authorized in many jurisdictions to order witnesses to appear for discovery depositions). Often, however, the attorneys frustrate their own efforts to secure the appearance of a witness by delaying the submission of the subpoena to the arbitrator until shortly before the arbitration hearing itself. Moreover, particularly in cases initiated in the courts, attorneys will have subpoenas issued on court forms that have been executed by a clerk of court and that bear the court’s filing number, notwithstanding that the case has been discontinued in light of the agreement to arbitrate. Occasionally, the attorney will submit such a court subpoena form for the arbitrator to sign, although the form itself states that it has been issued by the courts. In neither event, of course, is such a subpoena one that technically satisfies the requirements of an arbitrator-issued subpoena. Care should be taken, therefore, not only that the subpoena be issued in a timely manner, but also that it be in proper form so that the arbitrator will agree to sign it and resort may be sought of the courts for purposes of enforcement if necessary. Presenting an Organized Case Trials and arbitrations are, of course, very much like jigsaw puzzles. They are composed of numerous pieces of evidence that the fact-finder is expected to assemble so an accurate picture of what occurred emerges. Often, parties assume that because the arbitrator is experienced, there is no particular need to present the testimony in any particular order. However, this can result in the arbitrator not gaining a complete and organized picture of the case being presented. In some circumstances, in fact, allowing witnesses to testify out of order may severely harm the case of a party seeking such an accommodation. For example, in one medical malpractice case before me, the defense requested that it be permitted to put on its expert witness physician, who had a personal engagement, before the plaintiff’s expert had testified. After the defense expert had left, the plaintiff’s expert testified and not only set forth the plaintiff’s position but, more importantly, was able to do so in a manner that successfully rebutted everything earlier asserted by the defense expert. Needless to say, the reversal of the traditional order of testimony adversely impacted the defendant’s position. In short, recognizing that occasionally witnesses must be taken out of order and that reasonable cooperation between parties is to be encouraged, an attorney should make every effort to present the case in the most logical and comprehensible manner. Accommodating the wishes of opposing counsel or even those of your own witness may prove harmful to the arbitrator’s understanding of your case. Exhibit Preparation In court trials, parties generally recognize the need to prepare and present exhibits to the fact-finder. In many arbitrations, however, again relying on the supposed wisdom, expertise and experience of the arbitrator, parties may skimp on exhibits that would assist in reaching a decision. Pictures and diagrams of locations where the accident occurred, photos of defective equipment or the damage done to property, highlighted sections of a disputed contract, diagrams and illustrations of the area of the body affected by the incident or illness and the like are always of immeasurable value in court. They are of no less importance and should not be ignored at arbitrations. Witness Preparation In preparing for trial, attorneys generally take great care to assure that their witnesses are well prepared for the harrowing experience of testifying in open court. However, it is often apparent that less care has been taken in preparing for arbitration. This is possibly because attorneys seek to put witnesses at ease by advising that arbitrations are conducted in an informal manner. Arbitration witnesses generally do not appear to have been as rigorously prepared to respond to cross-examination questioning or to have been directed to review their earlier depositions. Inadequate preparation resulting from reliance on the relatively pressure-free environment of arbitration will result in harmful testimony that is unexpected, unintended or inaccurate. Closing Arguments As with opening statements, attorneys often conclude the arbitration by stating to the arbitrator: “In light of your experience and the evidence presented, I will waive closing argument.” In my opinion, giving up the opportunity to present a closing argument is almost always a mistake. First, the attorney wants to be sure that the arbitrator has a clear recollection of everything that was presented and how it applies. This is particularly critical, as generally the arbitrator will not have a reproduced record to which s/he may refer in subsequent deliberations. Moreover, as certain as a party may be that the arbitrator fully understands the position asserted, in fact the arbitrator may not have a completely nuanced appreciation of the argument in its entirety. While a closing argument before an arbitrator need not have all of the dramatic and emotional overtones of a presentation before a jury, an attorney should have no concern about making such a presentation. I have never heard of an arbitrator who resented a closing as, invariably, it will assist in reaching a final decision. Finally, an attorney should also consider whether a post-arbitration brief will be helpful to the arbitrator and, if so, request the opportunity to submit one. Again, this is even more appropriate at arbitration than following a non-jury court trial, because the arbitrator lacks the benefit of a reproduced record. Conclusion In short, arbitrations should be approached no differently from trials. Preparation and presentation should be undertaken with the same care as those employed in court proceedings. When this attitude is taken, the advocate can be assured that based upon a fair, thorough and organized hearing, the arbitrator will be better positioned to render a decision based upon a full understanding of the issues. • Abraham J. Gafni is a mediator/arbitrator with ADR Options, and a professor at Villanova University School of Law.

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