David K. Taylor, Bradley Arant Boult Cummings, Nashville, TN
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.
No. 2: Not Performing Due Diligence on Potential Arbitrator(s)
This post applies not to privately administered arbitrations where the parties attempt to agree on an arbitrator, but to the standard situation (whether through the American Arbitration Association or some other ADR organization) in which counsel are sent a “list” of possible arbitrators and their biographical information. After the arbitration demand is filed, counsel are provided with the list from which to select the arbitrator or arbitrators who will decide the case. The selection process is like selecting a jury in a courtroom trial: Cross off the unacceptable arbitrators; list the rest in order of preference; send the list back to the case administrator (without copying the other counsel); and soon thereafter you are assigned an arbitrator or panel of arbitrators.
How best should you handle this process? Do you review just the information, send to your client, and then start crossing off names? ABSOLUTELY NOT. This is the person who will render a final, binding decision for your client. If possible, you should research beyond the provided bios. Remember, the purpose of the bio is to get selected to serve (and therefore get paid) and not show any preference or bias. You want someone who will “call balls and strikes,” but it is amazing how much more information you can obtain by spending an hour on the phone or sending email inquiries. Proposed arbitrators are supposed to disclose all conflicts, but you should search for more. The more information you can get the better decisions you can make. As an example, you may find out that the arbitrator allows all discovery, including depositions, when you may not want full blown discovery. You may uncover a potential bias with opposing counsel. Would you want to know that the arbitrator has numerous cases as a lawyer with not just the opposing counsel but her law firm? Go to websites (especially for the lawyers). Go to your sources, your colleagues, especially if the proposed arbitrators are from different states, and start asking questions. Finally, when you are assigned your arbitrator, start the process again. Find some colleague that has had that person serve as an arbitrator and identify preferences. That arbitrator may, for instance, have a real focus on proving up damages or is willing/unwilling to issue preliminary substantive rulings.
The primary point is this: Your client will rely on you to make recommendations for arbitrators. While you can’t tell the client that this or that proposed arbitrator will rule in your favor (just as you cannot with a judge), by going through an exhaustive selection investigatory process you can at least be as informed as possible. So win or lose, that’s providing good service and advice.