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. 6: Not Treating Your Arbitrator Like Santa
It is the time of the year for ALL good lawyers to clean up their act because Santa is coming. This same type of thought that goes into “being good” should factor into how you treat the arbitrator who will issue an award that either results in coal or a lip-smacking candy cane being placed in your law firm stocking hung snugly by your desk. Should Santa’s cookies and milk be put on the mantle near the fireplace for easy access (or maybe for a hungry elf) or out of his immediate reach? Of course not, says Rudolf the partner. A serious mistake I see, while both acting as an arbitrator or counsel, is when lawyers do not treat the arbitrator like a judge and do not think through how they can make things “easier” for the arbitrator. All those nuances we were taught as young “trial lawyers,” by our mentors, on treating judges with kid snow mittens, for some reason, go out of the decorated and frosted office window in an arbitration.
On the front end of an arbitration, try to find out from colleagues how the arbitrator likes to handle pre-hearing conferences and plan accordingly. Can you get your hands on a scheduling order previously issues by the arbitrator, revise it, and present it prior to the conference in a nicely wrapped package? On discovery disputes, arbitrators hate those as much (or even more) than judges (like Santa hates narrow chimneys). Go out of your way, just like you do in court, to resolve such disputes in good faith before taking them to the arbitrator. Do NOT think that somehow presenting a discovery dispute months before the hearing will somehow “educate” the arbitrator; it will not. Most arbitrators go into a hearing with a clean slate and base decisions on what’s presented, just like even bad girls and boys start out on the nice list with Santa on December 26th of each year.
Prior to the hearing, work with the other side as much as possible to put together a joint set of exhibit books that can be used by counsel, all witnesses, and the arbitrator so everyone has the same caroler song sheet. Bates or number the pages of exhibits that have multiple pages for easy reference. Needless time is wasted when lawyers have to say “well, this picture of the failed retaining wall near Santa’s workshop is about three-fourths of the way” in a 100-page exhibit full of pictures. Arbitrators also hate it when both sides come in with their own set of exhibit books when 80% of the exhibits in both sets are exactly the same. Along that same vein, create multiple volumes. Don’t use 12-inch-deep volumes with scores of exhibits that are hard to open and close. Again, Santa likes to have his milk and cookies close by and easy to access with no fuss. Would you wrap up his cookies in hard to open bags? Mrs. Claus would say no.
Before the hearings close, think about how to best make the arbitrator’s post-hearing analysis easier. Santa does not want to read through a long letter about what all went wrong with you in 2020. He wants to know what’s on your award “wish list” to be left under the “award tree,” which is hopefully decorated with paid client 2020 invoices. What the arbitrator wants is a short and concise summary of what relief you are seeking. Propose to submit a damages or key issue summary with a list of the exhibits that support your positions and claims. If legal fees are being considered, ask what process works best for the arbitrator. While most arbitrators do not need or want extensive post-hearing briefs, there may be one or two issues upon which the arbitrator may want a short and concise brief. And you can provide that additional, steaming cup of “hot claim chocolate” when your Santa sits down before ascending into the air to decide how he has to make someone happy and someone sad.
What you and your client do not want is to — as the Grammy winning song goes — “get run over by a reindeer” in any final award. All these holiday nuggets of wisdom cannot change your facts or make your witnesses more credible. But, you don’t want to mess around with Santa or give your arbitrator a reason to hesitate when she opens up and reaches into her big red “award bag” and provides you with an award treat that will hopefully be delicious and go down easy with you and your client.
Even Santa can’t wait for 2020 to be over. Everyone have a great and safe 2021!