Hon. Curtis E. von Kann | JAMS
Having observed effective advocates in action during my 53 years as a trial lawyer, judge and arbitrator, I have come up with 10 rules for winning in arbitration.
Rule No. 1: Never Impair Your Credibility With the Arbitrator
If your arbitrator believes you have misstated a case or a witness’s testimony or the contents of a document, he or she will likely conclude that you either don’t know your case or are intentionally seeking to deceive. Never say anything to an arbitrator unless you are 100% sure it is correct. If you don’t know the answer to a question, simply say, “I don’t know the answer but will get it for you promptly.”
Rule No. 2: Neither a Castigator Nor a Whiner Be
Arbitrators respect lawyers who can zealously advocate for their clients and work out procedural issues with opposing counsel. Try hard to do both. Always get straight to the merits without berating the other side or whining about how badly it has treated you.
Rule No. 3: Throw Far-Fetched Claims and Defenses out the Window
Another threat to your credibility is the “kitchen sink” arbitration demand or a response that includes numerous claims or defenses that have little chance of succeeding. Experienced arbitrators recognize these as make-weights that never should have been pleaded. They want to know right away what the case is really about and what law and evidence support your position.
Rule No. 4: Don’t Waste Time and Money on Motions
Many inexperienced advocates file the same motions in arbitration as in litigation. This is usually a huge waste of time and client money. Arbitrators are keenly aware that, in arbitration, there is no appellate body to reverse an erroneous grant of a motion for summary disposition and that one of the few grounds for vacating an award is refusing to hear a party’s evidence. Skip motions and get ready for the hearing as quickly as possible.
Rule No. 5.: Make Your Opening Statement Short but Memorable
If you laid out your case in a pre-hearing brief, the arbitrator has almost certainly read it and won’t appreciate an oral repetition. If there were no pre-hearing briefs, keep your opening short, providing an “executive summary of your case in chronological order without getting into the weeds. Sum up key points in phraseology the arbitrator will remember. Mention your most compelling evidence, and take the sting out of your opponent’s by citing other evidence that puts it in the least harmful light.
Rule No. 6: Forget the Admissibility of Evidence; Focus on Its Weight Instead
Because the rules of evidence hardly ever apply in arbitration, nearly all evidence that any party wishes to present will be received “for what it’s worth,” so fighting over admissibility is a fool’s errand. Instead, focus on the importance of those quoted four words. Evidence that Joe said X about Y will be received. But why should the arbitrator care? Is there any evidence that Joe is a truthful, well-qualified observer with a good memory? Similarly, any document whose authenticity is not disputed will usually be received but given little weight unless the proponent demonstrates that the person who wrote it had sufficient knowledge and incentive to make it reliable.
Rule No. 7: Do Not Lead Your Witness During Direct Examination
Your arbitrator will be unmoved by a direct examination that consists of your witness simply agreeing to your account of events. Conducting a direct examination without leading questions is hard work that requires careful planning and thorough preparation of your witness. If your witness can tell a coherent story, clearly and concisely, in his or her own words, that direct examination will have much greater impact on the arbitrator than any leading you could do.
Rule No. 8: Less Is More During Cross-Examination
Don’t ask an opposing witness about everything said during direct examination; that gives the witness the opportunity to repeat the many parts of direct testimony that you cannot disprove merely by questioning him or her. Instead, inquire about a few statements made on direct, and force the witness to acknowledge that the statement was “incorrect” or, better yet, “untrue.” Usually that can best be done by confronting the witness with a clearly inconsistent prior statement. Your first question should be about testimony on which you have the strongest impeachment. Once you have secured from the witness four or five admissions of error, end the cross-examination there.
Rule No. 9: Prepare Briefs That Contain No Bull, No Bad Cites and No Typos
All your briefs should be brief, clear and cogent. Do not overstate your case, harangue the other side or engage in rhetorical flourishes. Scrupulously check all evidence and legal citations to assure that they are accurate. And proof your briefs carefully; typos, misspellings and similar errors signal that you were unwilling to take the time to provide a first-class product for the arbitrator.
Rule No. 10: Give the Arbitrator the Tools Needed to Write the Award You Want
By the time of closing arguments, most arbitrators are reeling from information overload.
Poor advocates compound the problem by rapidly spewing forth reams of data. Instead, put this information in a closing argument binder that contains everything the arbitrator will need to write the award you want. It can accompany a pre-closing brief or be submitted to the arbitrator and opposing counsel at least 24 hours before closing argument. It should include copies of important pleadings, orders and stipulations; a chronology of key events (with record citations); a glossary of technical terms; a chart showing the calculation of damages; the exact wording of any injunctive or declaratory relief sought; key testimony of each witness; a list of principal legal authorities (with copies of each); and slides from any PowerPoint presentations you make. Your arbitrator will greatly appreciate having these tools at his or her fingertips when writing the award.
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