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 posts, 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 essential, but many times does not happen.
No. 3: Not Getting What You Need Out of the Initial Scheduling Conference
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.
Although you did your due diligence (see post No. 2) during the arbitrator selection process, it is time for more due diligence in advance of the call as soon as the arbitrator is appointed. Find out from colleagues who may have had this person as an arbitrator and how the arbitrator handles the initial conferences and deals with certain issues. This additional due diligence is especially important when there is a Panel. You should find out in advance who the chair of the Panel will be since he will determine how the arbitration is to be handled and may himself rule on discovery disputes. What’s his philosophy on key issues such as e-discovery, depositions or substantive pre-hearing motions? While “summary judgment” is not a concept frequently used in arbitration, in many instances there are appropriate motions that may need to be filed to narrow down claims or defenses or even dismiss an entire demand (such as the applicability of statutes of limitation). What’s the arbitrator’s philosophy on such motions? Setting aside the confidentiality aspects of arbitration, you should try to get your hands on a scheduling order previously issued by the arbitrator.
The arbitrator will look to counsel to help fashion a scheduling order with appropriate deadlines, which means pre-conference call preparation. Do you need a specification of claims/defenses from the other side so that you can better fashion written discovery? Do you need to request deadlines for the filing of counterclaims? What about site visits? Assuming the arbitration clause is silent on pre-hearing depositions, most arbitrators believe that they do not have the authority to order depositions. Depending on your relationship with opposing counsel, if you see the mutual need for limited depositions, call that counsel and discuss in advance what discovery you each need. Every arbitrator (like any judge) appreciates a good working relationship between counsel.
Finally, the one item every arbitrator worth her salt will insist on in an initial conference is to set the matter for a formal hearing. Your client will expect that also. That means thinking in advance about the time frame for the hearings; how many days of hearings will be needed; location of the hearing (it is great if your firm can host); and availability of counsel, client representatives and witnesses. While it’s perfectly acceptable to state that you will have to check with your client to confirm availability for agreed to hearing dates, the arbitrator will expect a prompt confirmation of dates. While you want to be liberal with the number of days, to avoid having to come back months after an incomplete hearing, be wary of the financial impact on your client with setting aside too many days. Most ADR agencies, such as the AAA, will within a few days after the hearings are set send out a bill to each side to pay for the arbitrator’s anticipated compensation, not just for the hearings, but pre-hearing matters, evidence review, and award preparation. Assume a three-person Panel for five days of hearings. Doing the math and giving each arbitrator eight days and an average hourly rate of $400, the total bill for each client which has to be paid in advance (otherwise no hearing) will be $45,600. This may change minds about whether or not you really want a Panel versus a solo arbitrator (the pros and cons of which could be a separate post) or whether that hearing you originally estimated would require five days might really be doable in three days.
The primary point is this: Like an initial appearance before your trial judge, nothing beats advance preparation. An experienced arbitrator WILL come away from the call with initial impressions of both counsel. Make sure that the first impression is favorable, because it will pay dividends in the future.