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I have practiced law for 40 years with the vast majority as a “construction” lawyer. I have seen great… and bad… construction lawyering, both when representing a party and when serving over 300 times as a mediator or arbitrator in construction disputes. To be clear, I have made my share of mistakes. I learned from my mistakes and was lucky enough to have great construction lawyer mentors to lean on and learn from, so I try to be a good mentor to young construction lawyers. Becoming a great and successful construction lawyer is challenging, but the rewards are many. The following is No. 6 of the top 10 mistakes I have seen construction lawyers make, and yes, I have been guilty of making this same mistake.

No. 6: Not Marketing Your Skills: Internally and Externally 

You are a proud construction lawyer.  Like Liam Nelson in many of his movies, you have a “special skill” set. You are both a transactional lawyer when negotiating construction contracts and a “dispute resolution” specialist when called upon. Unlike most “litigators,” who normally get involved after a dispute occurs, you are brought into a matter by a client early on in a project to provide legal and practical advice so that a full-blown dispute never happens – or if it does, the client will be in a better position to achieve a good result. You are an aggressive fact finder  and zealous advocate. You know more about the way a construction project is financed, negotiated, documented and built than some of your clients. You can provide a more accurate analysis of probable outcomes of disputes, especially in arbitrations. 

Then what’s the MISTAKE? The assumption in this post is that you want to be a successful, well respected, and – yes – profitable construction lawyer. If the answer is no, you are not reading this post. The mistake I often see, especially with young construction lawyers, is that they do not properly market themselves with these “special skill sets” both internally within the law firm and externally to fellow lawyers and the construction industry. This includes failing to make cross marketing a priority.

Marketing Internally

Of course, marketing yourself internally depends on your experience, the size of your law firm and your construction group. But you can’t sit back in your office and expect work to come to you or be fed work by a partner. Referrals can come from within a firm, whether from transactional lawyers or litigators. Establish yourself as one of the “go to” lawyers for reviewing and negotiating construction contracts, reviewing arbitration clauses in non-construction contracts, and for all things related to arbitration. Offer to put on seminars about your practice or attend monthly practice group meetings for other groups. Send relevant construction law updates to your partners who are assisting potential construction clients in other practice areas. Pay attention to trends in the industry and deals being worked on internally, especially with clients for whom you have done work. Make yourself available (and do great work) if asked to help a client by a non-construction attorney at your firm. Seek out and create relationships with the most successful lawyers in your firm or group and ask how they achieved their success. The benefits of a personal “in person” relationship, not just via zoom or email, are substantial.

Marketing Externally via the Bar 

Because of the very nature of construction, and the number of parties involved in a construction project (lender/developer/owner/designer/prime contractor/subcontractor), referrals by other lawyers due to conflicts regularly happen. If the construction bar in your area doesn’t know you, other lawyers will not refer work to you, and that has to change. Consider doing the following to help build you brand within the local/state construction bar:

  • Join and actively participate in your local or state bar construction committee, and that can include committees focusing on ADR. If there is not one, create one through your bar or via a separate organization. Contact the folks in charge of CLE for your local and state bar associations and offer to put on a construction (or even arbitration) related CLE program, which may be only an hour. In Tennessee, we created the “Tennessee Association of Construction Lawyers”, and it has been highly successful.
  • Try to write articles to be published in local or state bar magazines. The ABA Construction Forum is a great national construction lawyer organization, but it takes a willingness (as well as your firm’s support) to regularly attend meetings, actively participate, and work your way up to leadership positions.
  • Consider writing a series of blog posts, which can be picked up by national media groups. These efforts may also be taken into consideration when the various groups select “rising stars” and “best of” in different legal fields.             

Marketing Externally to the Construction Industry

Many successful construction lawyers focus their marketing efforts not on other lawyers but on construction industry groups. There are national construction organizations (such as ABC, AGC, ASA) that have local and state group meetings. Although frequently overlooked, there are also specialty construction groups, whether roofing, masonry, road building, specifications, or architects. Each group meets monthly and has state and national conferences… for which they need speakers. Research and consider joining these groups, go to the monthly lunches, and actively participate. Offer to put on continuing education at no charge. In addition, research which specialty groups publish magazines. Any time you visit a client see what publications are out front in the waiting area. What organizations are they a member of? Offer to co-speak on a topic at an upcoming meeting. Submit an article of interest geared towards that group. Many times this results in invitations to speak at national meetings. All of these efforts (as well as keeping your firm bio updated) can raise your profile within your law firm and group.           

Marketing and Cross-Marketing to Existing Clients

Be proactive in knowing your client’s business. Keep up with their projects and any awards. Many companies want to promote from within and educate their employees. You can offer to put on presentations at their office, which also solidifies you as their “go to lawyer.”  Finally, never overlook the fact that construction clients, like any other business, have many legal needs. If you work for a full-service firm, make the client aware that your firm can provide labor, banking, real estate, and transactional expertise. Getting that work into your firm not only helps you succeed but also makes for very happy, impressed and appreciative non-construction lawyers.        The bottom line is this: Don’t be “that” construction lawyer. Be proactive in determining how your  special skills can translate into becoming an even more successful lawyer. Make and stick to a written plan with both short- and long-term goals. Seek advice from your mentors. This may not immediately result in recognition and new clients, but business development is a process, and you have to stick with it in order for any plan to be successful.

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I have practiced law for 40 years with the vast majority as a “construction” lawyer. I have seen great… and bad… construction lawyering, both when representing a party and when serving over 300 times as a mediator or arbitrator in construction disputes. To be clear, I have made my share of mistakes. I learned from my mistakes and was lucky enough to have great construction lawyer mentors to lean on and learn from, so I try to be a good mentor to young construction lawyers. Becoming a great construction lawyer is challenging, but the rewards are many. The following is No. 5 of the top 10 mistakes I have seen lawyers make in construction disputes, and yes, I have been guilty of making this same mistake.

No. 5: Being a Jerk to Opposing Counsel 

One great part of being a construction lawyer is that most construction lawyers are reasonable, professional and make working with them easy. To be clear, such behavior is not inconsistent with always zealously representing your client. In most instances, I tell construction clients I prefer a good, experienced, and reasonable construction lawyer on the other side of a dispute. Having someone who knows what he or she is doing will many times save a client legal fees and enhance the chances of a reasonable settlement. The mistake (and it can occur with both young and old construction lawyers) is, simply put, being a jerk. Bad behavior can occur any number of ways, such as getting way too personal (“what kind of lawyer are you?”); inserting your ego into the matter (“never in my XX years have I seen such a **! argument); or simply refusing to cooperate when a reasonable request is made to extend a deadline (“why should I do that since you and your client are **?). 

 The old adage “what comes around goes around” is applicable. If you are uncooperative or refuse to be reasonable and let your ego get in the way, you will get it right back, and it may not benefit your client. To be clear, we have all had difficult clients who want “scorched earth” tactics and zero cooperation. You should explain to the client why it is in her best interest to be cooperative and why you are not being nasty to your adversary. As a member of the bar, you also have professional and ethical obligations, as well as a reputation to protect (both you and your law firm). You can also, without waiving any privilege or compromising your client’s case, let your adversary know that it’s not personal. Most good construction lawyers know – or can figure out – when there are difficult clients on both sides.  

For the “young” construction lawyers out there, be aware of other frequently overlooked consequences of being considered a jerk. First, especially in your geographical practice area, word gets around quickly. That could potentially affect how other lawyers deal with you and that may impact your representation of other clients. All experienced construction lawyers reading this know exactly what lawyers in their areas are…jerks.

Second, bad behavior can impact your personal and professional goals — and your pocketbook. Do you want to move up the ladder in participation on local, state, or national construction bar organizations? Doing so requires recommendations from your peers, and no one likes a jerk or wants to work with a known jerk. Also, in the construction legal world, multiple parties can be involved in a single dispute (e.g., owner/architect/lender/primecontractor/subcontractor/supplier/manufacturer). Legal, ethical, and sometimes business conflicts occur all the time, especially with larger law firms. When you have to tell a client that, unfortunately, you have a conflict that cannot be waived, that client will want a referral. You will want to make a referral to a colleague who you respect, who you know will not steal the client away for the next dispute, and who may have recently referred a client to you because of a conflict. Simply put, jerks do NOT get referrals. 

Finally, and this has happened to me many times: The other parties you do not represent in a matter will note your professional behavior. Just this year I was called out of the blue by the president of a large construction company looking to change counsel for all its construction legal needs. His company was adverse a few years ago to my client in very contentious construction contract negotiation, some of which were face-to-face with his counsel and him. He told me he remembered that while I was very tough and represented my client very well, I was good to work with, reasonable, and (while not using the word)… not a jerk. That company is now a good client of my firm. Having a former adversary hire you is one of the best compliments a construction lawyer can get. 

The moral to this article is simple: Don’t be the kind of construction lawyer who is considered to be a jerk. Don’t let your ego get in the way. Be aware of the consequences of unprofessional behavior. It will negatively impact your client’s case, and it can hurt your reputation, your professional development, and in many instances, your personal pocketbook. Be a bulldog for your clients. Be tough. Earn the other side’s respect… but, don’t be a…**!!!@@ [aka jerk]. 

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I have practiced law for 40 years with the vast majority as a “construction” lawyer. I have seen great… and bad… construction lawyering, both when representing a party and when serving over 300 times as a mediator or arbitrator in construction disputes. To be clear, I have made my share of mistakes. I learned from my mistakes and was lucky enough to have great construction lawyer mentors to lean on and learn from, so I try to be a good mentor to young construction lawyers. Becoming a great construction lawyer is challenging, but the rewards are many. The following is mistake No. 4 of the top 10 mistakes I have seen lawyers make in construction disputes, and yes, I have been guilty of making this same mistake.

No. 4: Not Folding Bad Claims/Defenses

We are taught in law school and as young lawyers to assert every claim and defense, especially at the beginning of a lawsuit or, in the case of most construction disputes, in arbitration. This is not a mistake. It is necessary because typically at that early stage of the dispute the facts are unclear. Your client also may be focused on going after the other side and want you to make every possible claim or defense. The mistake is to continue stubbornly on this path through to the arbitration hearing or trial in a courtroom. This kind of mistake was carved into stone by the late, great singer-philosopher Kenny Rogers, who crooned, “You’ve got to know when to hold ‘em, know when to fold ‘em.” This simple but catchy phrase is applicable to all trial lawyers, especially to construction lawyers. 

In the typical commercial construction dispute, there are scores of claims and an equal number of defenses. The best examples are defective work and change order claims. On a recent arbitration panel of which I was the chair, there were 38 claimed change orders – some seeking only money; some requesting time; and some seeking both money and time. But each change order had its own factual story, many times quite complicated. This is one of the reasons why construction disputes are so expensive as far as legal fees (and client time). As discussed in mistake No. 1 in this “mistake” series, the most important four issues in any construction dispute are the facts, the facts, the facts… and the facts. In turn, the defenses to such multiple claims can be equally factually complex. Many times, there are alternative theories: There was no timely claim notice; there was no defective work; even if there was notice and defective work, the client did not cause it; and even if the client caused it, the costs sought are both unnecessary or unreasonable or both. 

Credibility before an arbitrator or judge (and the jury), both for you as a lawyer and your client, is absolutely critical. If you have 15 claims and determine prior to the hearing that eight are extraordinarily strong, four are “iffy,” and three are extremely poor, the mistake is not “folding” the poor claims. The same goes for defenses. I cannot tell the young construction lawyers out there how many times, as an arbitrator, when bad claims/defenses are presented (through the same set of witnesses used for the strong claims/defenses), I have then questioned the credibility and viability of both the “iffy” and strong claims. This consequence applies equally to a party who stubbornly refuses to concede unopposed facts or portions of claims. Any attempt to practice scorched earth “litigation” tactics simply does not go over well in front of an arbitrator or judge. The best example in a construction context is when one side’s claims are less than the amount stipulated to be owed to the other side, but that side has refused to pay the undisputed amounts. 

Remember, while a judge or jury may not know anything about construction, a construction arbitrator does. The arbitrator is a construction industry expert, normally a very experienced construction lawyer, who has been through scores of arbitrations, both as counsel and as an arbitrator. Stubbornly sticking to losing positions, especially in arbitrations, is a grave error that will hurt your client’s chances of a successful arbitration outcome.  

Also, consider if raising a claim or defense is worth the time and effort. How much time do you have to put toward your case? I have had parties in a multi-day arbitration where the total claims exceeded $1 million spend three hours on a $1,000 claim when the total legal (and arbitrator) fees for these three hours may exceed $5,000. I have had a client go against my strict instructions to agree that a picture showed exactly what the other side was contending on a ridiculously small claim. Instead, he refused to do so. The other lawyer pounced on the opportunity. The arbitrator rolled his eyes, and it destroyed the client’s credibility and adversely affected the final result. His explanation to me afterwards was: “Oh, sorry, I just wanted to try to confuse that jerk of a lawyer.”   

To be clear, to fold a bad claim or defense you must fully educate and involve your client, and that can sometimes be difficult. The client is in charge and calls the shots. But there can be gobs of credibility gained with the arbitrator by strategically, timely, and tactically making concessions prior to and especially during a hearing. As Kenny wisely sang: “You’ve got to know when to hold ‘em, know when to fold ‘em, know when to walk away, and know when to run.”       

Listen to this post

I have practiced law for 40 years, with the vast majority as a “construction” lawyer. I have seen great… and bad construction lawyering, both when on the other side of a dispute, as well as when serving over 300 times as a mediator or arbitrator in construction disputes. To be clear, I have made my share of mistakes. I learned from my mistakes and was lucky enough to have great construction lawyer mentors to lean on and learn from, and I try to a good mentor to young construction lawyers. Becoming a great construction lawyer is challenging, but the rewards are many. The following is mistake No. 3 of the top 10 mistakes I have seen lawyers make in construction disputes, and yes, I have been guilty of making the same mistake.

Mistake No. 3: Not Performing Due Diligence on the Mediator and/or Arbitrator

In almost all construction disputes (a higher percentage than commercial disputes) the claims are mediated, and, if unsuccessful, submitted to binding arbitration (either by agreement or via the dispute resolution clause in the construction contract). A mistake construction lawyers often make, both in mediation and especially in arbitration, is not doing sufficient due diligence and getting client “buy in” on the proposed agreed “neutral.” The client is relying on the lawyer’s expertise and experience to make a recommendation as to the neutral. When the client (the one paying the bills and his share of the neutral) turns and asks “Why did you recommend this person?” you had better have an answer.

Mediation

For construction mediations, the mediator should always be an experienced construction lawyer, even if the mediator is full or part time. Every construction mediator has his or her own style. You need to find out what that style is before making a recommendation to a client. The prior dispute experience level of your client is also a factor. Do you need a “basher/trasher” — a mediator who will not be concerned about bashing both sides (and yours) and expressing strong opinions about what a settlement should look like? Do you need a “Bill Clinton” type of mediator – someone who feels your pain but does not express a lot of opinions? Is your client listening to your thoughts on the case and you need the mediator to lay it out for the client? Is the other side’s lawyer NOT a construction lawyer? Even if she is, what do you know about the other side’s decisionmaker? Is it a bare knuckles fight to the end where a business is at stake, or a run-of-the-mill dispute after which the parties will still have a relationship? Careful thought should go into all of these factors before simply selecting your “go to” mediator or agreeing on the other side’s mediator recommendation. The best construction mediators are the ones who can alter their style to get to a deal. Great mediators say, “I don’t care if you ever use me again, my client is the deal, and I’ll do whatever it takes to get the deal.” 

You have to do your own research. Discuss your choices with colleagues. Do a Google search for articles authored by or about the mediator you are considering (or proposed by the other side). And here is the most neglected action item: Call up the proposed mediator. Remember, this is a settlement, not arbitration. Ask about their style, how they manage difficult clients (and lawyers), and whether they have had the other side in a mediation before. How do they manage an impass when the parties are far apart? Do they require (which every good mediator should) a “pre-call” to make sure that both sides will be ready to mediate and suggest what needs to be exchanged prior to the mediation? Do they like to make a “mediator’s proposal” at the end if no deal? By obtaining as much information as you can, you and your client can make a better decision on who to pick as a mediator, which will increase your chances of a successful outcome.

Arbitration

Selecting an arbitrator is serious since the arbitrator’s final decision is binding and, with few exceptions, unappealable. Your client’s business and livelihood may be at risk. If the arbitration is “administered,” each side will get a list of potential arbitrators (with a bio) from the ADR agency. The selection process is like selecting a jury: Cross off unacceptable arbitrators, list the rest in order of preference, send the list back to the case administrator, and soon you are assigned an arbitrator (or a panel). You should involve your client, regardless of experience level. Not researching beyond the provided bios is a serious mistake. At the end of the day, you want someone who will “call balls and strikes” with no conflicts and who fits the needs of your dispute. For example, if you know the other side’s lawyer will want unlimited depositions and will be difficult, you want an experienced arbitrator who can control the difficult advocate. Most of the provided bios are old. While arbitrations are “private,” Google the arbitrators for presentations and articles. See who they normally represent as a construction lawyer. Reach out to colleagues to see if they have had this person as an arbitrator. What type of scheduling order do they prefer? Do they have a position on depositions and especially summary judgments (really called “dispositive motions”)? If you have case where there should be a good chance of kicking out all or some part of a claim or defense prior to a hearing, you do not want an arbitrator who never grants such motions. And while you call colleagues you trust, be careful with their advice. Many times, lawyers who have “lost” an arbitration say that the arbitrator was horrible and that you should stay away. The best choice may be the arbitrator whom a lawyer says was fair and allowed both sides to try their case even though the lawyer lost the case.

So, to avoid this mistake that I have made, make sure you do your due diligence in selecting any neutral and keep your client in the loop before making any final decisions.

Listen to this post

I have practiced law for 40 years, with the vast majority of that time spent as a “construction lawyer.” I have seen great… and bad… construction lawyering, both when on the other side of a dispute, as well as when serving well over 300 times as a mediator or arbitrator in construction disputes. To be clear, I have made my share of mistakes. I learned from my mistakes and was lucky enough to have great construction lawyer mentors to lean on and learn from, so I have tried to be a good mentor to young construction lawyers. Becoming a great construction lawyer is challenging, but the rewards are many. The following is mistake No. 2 of the top 10 mistakes I have seen lawyers make in construction disputes, and yes, I have been guilty of making all of them.

Mistake No. 2: Not Educating Clients on the Pros and Cons of Arbitration

There are scores of articles debating the pros and cons of arbitrating versus litigating legal disputes. This article does not discuss mediation (to come later). Find four construction lawyers at a conference, buy them drinks, broach the topic, and then stand back and watch the fun. Many times, there isn’t a choice when the transactional lawyers include an arbitration clause in any kind of construction contract or recommend checking the arbitration “box” in the frequently used AIA series of construction contracts.

When there’s an opportunity to do so or the client requests your input, you should take the time to advise the client on the potential pros and cons of arbitration. Ultimately, the decision of whether to arbitrate or not is a business decision for the client, but you can add value to that decision by providing information on how arbitration or litigation may better suit your client’s needs. If a client decides to utilize arbitration as the dispute resolution mechanism in its contracts, you should work with the client to develop an arbitration clause that is enforceable, functional, and can be practically applied. I often encounter arbitration provisions that are mangled and unworkable.

Even fervent believers in arbitration acknowledge that this method of “alternative dispute resolution” is not a panacea for all that ails the trial system. The role of a lawyer/counselor is to present the pros and cons to the client. And there are two sides of the sword on every single arbitration “pro” and “con.” Never forget arbitration clauses are contract clauses. For most every “con” there can be, if drafted carefully, language to counteract that specific “con.” 

Will your client need to make a claim against another company not a party to the contract or transaction if a dispute arises or obtain vital documents from a third party? There is no third-party practice in arbitration absent another arbitration clause in that other contract. And while the arbitrator has subpoena power and can sign a pre-hearing third-party document subpoena, those subpoenas may not always be enforceable.

In a failed retaining wall dispute years ago, when representing the owner (who nicely told me if we lost, he wouldn’t be able to send his kids to college), the experts said that the failure was a combination of design and construction errors. The problem? There was an arbitration clause with the contractor (which wouldn’t waive arbitration), but not with the engineer (who would not agree to join in any arbitration). The result? We went to arbitration first, the other side pounded “design,” and the panel agreed. Zero recovery. On to the engineer in court, who pounded construction. The settlement with the engineer was not very good. You remember your losses much more than your victories. If I could have advised the client before he entered the relevant contracts with the engineer and contractor, I would have recommended that he utilize the same dispute resolution procedure in both contracts and include a robust consolidation/joinder provision in each contract allowing the owner to litigate against the engineer and the contractor in the same proceeding.

Does your client’s very survival depend on getting to a quick resolution in the event of a dispute? Setting aside mediation, a large and complicated construction dispute may need weeks of testimony. Good luck in getting a quick trial date in court. Years ago, I represented an engineering company that was owed substantial monies from a manufacturer on a chemical plant. No arbitration clause. A month of hearings were needed. After the lawsuit was filed on a motion to establish a scheduling order, the judge (in a rural state county) said he could work us in in three years, which by then my client (and its 100 employees) would have been bankrupt. The good news is that even the manufacturer wanted to get the dispute over with, so we agreed to submit the disputes to private arbitration with hearing dates in a year. The matter was eventually settled, and my client survived.

What about pre-hearing depositions, which can be abused by one side and of course are incredibly expensive? Arbitration rules do not always allow for or contemplate depositions, and many arbitrators rule that they do not have the power to order depositions over objections. Many times, in my scheduling conferences with counsel when I serve as an arbitrator in smaller cases, I get incredulous indignation from one side (many times appointed insurance lawyers) when they learn they cannot take the depositions of every single potential fact witness. The remedy for those parties? Go back to the drafting of the arbitration clause: A company can certainly include in the clause the ability to take full blown pre-hearing discovery.

Should some portions of a claim, or a defense, get resolved quickly, “as a matter of law,” via a pre-hearing motion like a state or federal civic procedure “summary judgment”? But… the rules of “civil procedure” do not apply to arbitrations. Are summary judgment or dispositive motions more difficult to win in arbitrations? The general consensus is yes. Much depends on the arbitrator, but the same can be said for judges. Sometimes success on summary judgment in either forum may depend on the nature of the summary judgment argument. For example, you may have more success pursuing summary judgment on arguments based on waiver or release in a court proceeding.

Finally, what about advising the client about the best of both worlds? There are presently many large developers, owners and contractors that include dispute resolution clauses that give one party the right, once a dispute arises, to choose arbitration or litigation. Although results may vary by jurisdiction, these clauses are often found enforceable.

So, the moral of this mistake is pretty simple: Don’t be swayed by those that hate or love arbitration. Decide what is in the best interest for your client in the specific project considering all of the circumstances. Provide your best advice, and let the client make the final call on whether or not to arbitrate a construction dispute.

Lawyer’s Advocacy in Arbitrations: No. 9 of the Top 10 Horrible, Terrible, No Good Mistakes Lawyers Make: Be Creative with Proof and IssuesDavid K. Taylor, Bradley Arant Boult Cummings, Nashville, TN
dtaylor@bradley.com
615-252-2396

There’s a great argument that lawyer advocacy in an arbitration is more essential than at a trial in court. This post is the ninth of the top 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make in arbitrations, both when I served as counsel and as an arbitrator. Agreeing to arbitrate a dispute, whether in a contract or by agreement, is a serious decision for any business. There are pros and cons to binding arbitration versus trial in a court that go beyond a series of blog posts, but the fact is that when a dispute is arbitrated, finality is the rule. It is very difficult to appeal an arbitration award. 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 sometimes does not happen.

No. 9: Not Being Creative with Proof and Witnesses 

In a typical trial, the plaintiff goes first with witnesses followed by the defendant’s witnesses. There may be multiple parties and claims, and the trial can stretch out over many days.  Key witnesses or experts could testify on day one, and the witnesses (including experts) who rebut that testimony on those issues may not testify until days later. The judge’s schedule may also dictate trial time and scheduling. Witnesses will not normally be taken “out of turn” regardless of their circumstances. The result may be testimony on claims one, three, and five on the first day of trial, while the rebuttal witnesses may not provide testimony until days later. Whether in front of a judge or jury, this lack of continuity of witnesses can cause confusion, especially when there is no trial transcript for a judge or jury to review. They have to rely on notes (if allowed to a jury) and/or pure memory.

While in arbitration hearings arbitrators face some of these same continuity issues, this is where the more informal nature of arbitration can be a real advantage. It may be harder for the arbitrators to review the testimony than a judge. Keeping this in mind, be intentional about the order of presentation of your witnesses. In arbitration, you are likely to have more flexibility with the order of witnesses and the hours made available for the presentation of evidence. Always remember that the arbitrator is being fed facts and arguments through a fire hose and is relying only on notes taken while a witness is testifying, as well as (typically) volumes of exhibit books chock full of exhibits. Therefore, put on your thinking hat. Arrange the exhibit books (see previous post) and include separate “claims/issues” sections for easy access, not just for the arbitrator but for you and your witnesses’ preparation. Arbitrators appreciate any effort or suggestion to narrow down issues and claims and present all evidence on a specific claim at the same time. Creativity with how issues, witnesses, and claims are presented is the key. Zoom and telephone testimony can be arranged (remember the rules of evidence do not apply). You can suggest what’s called “hot boxing” and propose having key witnesses from both sides testify back to back on key issues. For experts, consider having them present their opinions one at a time, or even at the same time, by going back and forth answering questions from all counsel and the arbitrator. Especially in a dispute where there may be scores of issues and claims, your efforts to make sure the arbitrator’s job is easier will pay off in the final result.

Read numbers 1, 2, 3, 4, 5, 6, 7, and 8 on the list.

Lawyer’s Advocacy in Arbitrations: No. 8 of the Top 10 Horrible, Terrible, No Good Mistakes Lawyers Make: Get the Hearing Exhibit Books RightDavid K. Taylor, Bradley Arant Boult Cummings, Nashville, TN
dtaylor@bradley.com
615-252-2396

There’s a great argument that lawyer advocacy in an arbitration is more essential than at a trial in court. This post is the eighth of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make in arbitrations, both when I served as counsel and as an arbitrator. Agreeing to arbitrate a dispute, whether in a contract or by agreement, is a serious decision for any business. There are pros and cons to binding arbitration versus trial in a court that go beyond a series of blog posts, but the fact is that when a dispute is arbitrated, finality is the rule: It is very difficult to appeal an arbitration award. 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 sometimes does not happen.

No. 8: Get the Hearing Exhibits Right

While arbitrations are less formal than trials, and the rules of evidence normally do not apply, there are still “paper” exhibits to be introduced through sworn testimony. There can be arbitrations where all exhibits are electronically scanned and pulled up via laptops by all involved, but most of the time exhibits are copied and placed into multiple exhibit books prepared by counsel. Typically, the scheduling order issued by the arbitrator has pre-hearing deadlines for the exchange of all proposed hearing exhibits. Exhibit books are then created, and on the day of the hearing both sides show up with their own set of exhibit books. But this process of each side bringing their own exhibit books is a mistake. It can cause confusion at the hearing because many times there are identical material exhibits that have different exhibit “numbers,” and counsel, the witness and especially the arbitrator are looking around to find the right exhibit book. Why does the “contract” at issue or key letters or emails have to be Exhibit 24 in one side’s exhibit book, but Exhibit 43 in the other side’s exhibit book?

The best way to handle this (and many arbitrators mandate this in the scheduling order) is to have counsel first exchange a “list” of proposed exhibits and then work together (in good faith) to create a “joint” set of exhibit books. There should be an index that can include not just exhibits, but tabs for pre-hearing briefs, summaries of damages, and pictures. A joint exhibit set allows everyone to “sing from the same song sheet” and save time. It is also extremely helpful for counsel to know all of the exhibit numbers in advance to prepare for direct and cross examination, as well as preparing witnesses.

Other mistakes to avoid in exhibit book preparation and presentation include:

  1. If the arbitration is document intensive and there will be multiple exhibit books, use “binders” that are easy to open and close and try not have so many exhibits jammed into one binder, which can make a binder unwieldy. Err on the side of making more exhibit books.
  2. Include an index and exhibit list by exhibit number for easy reference, and especially include the dates for emails and letters. This can include exhibits separated by issues, years or even months.
  3. If there are not “bates” numbers on each page of each exhibit, for exhibits that have multiple pages, such as pictures (which should always be dated), number each page. There is nothing more frustrating to an arbitrator (and witness) than the questioning lawyer asking about a specific document that is “about ¼ of the way in” or around “18 pages from the back,” and delays ensue while everyone scrambles to find that specific document.
  4. Include some blank exhibit tabs that are numbered, since many times there can be exhibits added during the hearing, such as summaries, demonstrative exhibits, or even post-hearing added exhibits.
  5. Be sure that at the end of any hearing, when all of the proof has been presented, that all parties, and especially the arbitrator, are on the same page about all exhibits, especially if exhibits have been added. Sometimes there are proposed exhibits that ended up not being used by either side. Consider if those unused exhibits should be removed altogether from the arbitrator’s set.

Read numbers 1, 2, 3, 4, 5, 6, and 7 on the list.

Lawyer’s Advocacy in Arbitrations: No. 7 of the Top 10 Horrible, Terrible, No Good Mistakes Lawyers Make: Pay Attention to Your ArbitratorDavid K. Taylor, Bradley Arant Boult Cummings, Nashville, TN
dtaylor@bradley.com
615-252-2396

There’s a great argument that lawyer advocacy in an arbitration is more essential than at a trial in court. This post is the seventh of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make in arbitrations, both when I served as counsel and as an arbitrator. Agreeing to arbitrate a dispute, whether in a contract or by agreement, is a serious decision for any business. There are pros and cons to binding arbitration versus trial in a court that go beyond a series of blog posts, but the fact is that when a dispute is arbitrated, finality is the rule: It is very difficult to appeal an arbitration award. 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…  sometimes does not happen.

No. 7: HEY! Pay Attention to Your Arbitrator.

All “trial” lawyers are taught early in their career to pay attention during a trial to the judge and the jury during witness testimony. How are they reacting to a witness or lawyer? Are they shaking their heads yes or no, nodding off (it can happen), suppressing a laugh or scowl, paying attention, or even rolling their eyes? These reactions can be invaluable to lawyers. It is difficult to gain such insight while you are questioning a witness. Many times, the questioning lawyer will ask a client or co-counsel to watch for any tell-tale reactions. This in-trial strategy is also helped immensely by the way a typical courtroom is set up: separate counsel tables facing a judge who is sitting up high; a jury on one side of the courtroom; and a witness “box” to the side of the judge. In a very large courtroom, counsel tables may be five or even 10 yards away from the bench and witness. Lawyers sometimes are also tied to a podium. A lawyer can then, pretty easily, without being too obvious, observe any reactions, whispers to co-counsel, or notes that are passed.

But an arbitration is different — mainly because of the hearing location and setup. Most hearings take place in a conference room, which can be of varying sizes. There can be a panel of three arbitrators with counsel for the parties facing each other. There may not be more than a few feet between the lawyers and the arbitrator and witness. Witnesses may not be facing the arbitrator but may be sitting on one side of the conference room table. It is therefore not as easy as being in “court” to gauge how a witness is doing or what impact, good or bad, a witness is having on the arbitrator. While most arbitrators attempt to remain stoic even during the worst of witnesses (and lawyers), they (we) are in fact human. All too often, while serving as counsel in an arbitration, I have seen significant reactions or “tells” from an arbitrator indicating whether the arbitrator is really paying attention. Is the arbitrator furiously taking notes, plugging away on a laptop, or looking at a thick exhibit book reading an exhibit that is not even being discussed by the witness? I have also, as an arbitrator, been amazed when lawyers plow through testimony and often move on to new exhibits when it is obvious that I am writing notes, not looking at the referenced exhibit, or even trying to get to the referenced exhibit. I may then tell the lawyer to “hold up” and let me “catch up,” but that should not happen.

In a word, when an arbitration award is binding and almost impossible to appeal, PAY ATTENTION TO YOUR ARBITRATOR!

What are some tips you can follow as a lawyer to make sure that you have the best “vantage point” to observe both the arbitrator and any witness?

  1. If at all possible, early on (in the initial conference call when the hearings are set) offer to “host” the hearing at your office (if that’s the city where the hearings will take place). Many times, arbitrators do not have large offices with comfortable conference rooms with amenities. That allows you to control what room to use, how it is set up, and provides ease of convenience for you and your clients to hold the hearings on your home base.
  2. If the hearing is in not in a city where the lawyers/clients/arbitrators live, be the first to offer to find a hearing location.
  3. If you are not hosting, visit the conference room days before the hearings begin and see what makes sense for the set-up.
  4. Most importantly, find out when the hearing location opens and get there as early as you can on the first day: Beat the other side there. You can choose the best side of the table (plunk down your exhibit books) and try to designate where the witnesses and the arbitrator will sit (again, plunk down the witness and arbitrator set of exhibits where you want them).
  5. Finally, just like you would do in court ­­‑‑ without trying to be too obvious — observe the arbitrator or have one of your colleagues do so, especially during testimony. You may very well pick up valuable tips that may change or alter your strategy and enhance your ability to come out with a favorable ruling.

Read numbers 1, 2, 3, 4, 5, and 6 on the list.

Lawyer’s Advocacy in Arbitrations: No. 6 of the Top 10 Horrible, Terrible, No Good Mistakes Lawyers Make: Not Treating Your Arbitrator Like SantaDavid K. Taylor, Bradley Arant Boult Cummings, Nashville, TN
dtaylor@bradley.com
615-252-2396

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!

Read numbers 1, 2, 3, 4, and 5 on the list.

Lawyer’s Advocacy in Arbitrations: No. 5 of the Top 10 Horrible, Terrible, No Good Mistakes Lawyers MakeDavid K. Taylor, Bradley Arant Boult Cummings, Nashville, TN
dtaylor@bradley.com
615-252-2396

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. 5: Know When to Fold ‘Em (Bad Claims/Defenses)

As the late Kenny Rogers sang, when playing poker, “you’ve got to know when to hold ‘em, know when to fold ‘em.”  The same analysis equally applies to preparing for an arbitration hearing and determining what claims/defenses will actually be presented at the hearing. Without repeating the title of these series of blogs, one serious mistake I see, while both acting as an arbitrator or counsel, is lawyers (and clients) who feel that they not only need to present every single possible claim/defense to the arbitrator, but refuse to concede positions in the middle of a hearing when it’s clear the facts are not going their way. An arbitration is not a hearing before a jury or a judge who may not know anything about the subject matter of the dispute. Your arbitrator is an industry expert, most of the time an experienced lawyer in the field at issue. She knows what good and bad positions are and when one side is trying to pull the wool over her eyes. Especially in arbitrations where there are multiple claims (such as a construction dispute), a party’s credibility on ALL positions is vital. Presenting four great claims/defenses but also one to two highly questionable ones, or stubbornly sticking to positions that look like losers, is a serious mistake. Your adversary will use anything they can to oppose the four great claims/defenses and use the questionable claims/defenses to cast doubt on the valid claims/defenses. More importantly, the arbitrator will look askance (he may not say so) at those bad claims/defenses and wonder why you are still presenting a position that appears to be a sure loser. Conceding certain claims/defenses during a hearing, no matter how hard fought, can increase your credibility to the arbitrator. Such a narrowing down on positions and in-hearing concessions can also help reduce exposure, especially if there’s a prevailing party attorneys’ fees clause. This may take some persuasion for a client who may be worried about making ANY concessions, especially in a hard fought, emotional arbitration. But part of your job as a counselor is to give the best advice possible and lay out the pros and cons, and the client can then decide if he wants to go “all in” on all stated positions.

Finally, the other great line from this song is “you never count your money when you’re sittin’ at the table.” Knowing what claims and defenses to “hold” and present, and which ones to dump and fold, will give you and your client the best chance of walking away from the arbitration table with money in your client’s pocket (after legal fees are paid, of course…).

Read numbers 1, 2, 3, and 4 on the list.