Ten Basic- Lawyering -Skills Tips for Success in Arbitration

1. Ten Basic-Lawyering-Skills Tips for Success in Arbitration Ariana R. Levinson

2. 1. • Should you submit a joint issue statement? • Pros: • Clarifies the arbitrator’s jurisdiction at the outset • Establishes cooperative attitude • Cons: Miss opportunity to frame the case in a light favorable to your client

3. 1. • Should you submit a joint issue statement? • Suggestion: No, frame your case favorably at the outset • Compromise: Request arbitrator to rule on which issue will govern at the outset

4. 2. • If you proceed second, should you reserve giving your opening statement until immediately before your case in chief? • Pros: • Avoid alerting the opposing party to your case • Wait to frame your case until you have heard the opposing party’s case • Cons: • Miss opportunity to present your case at point the arbitrator is most likely to remember • Miss opportunity to provide the arbitrator context for the opposing party’s case

5. 2. • If you proceed second, should you reserve giving your opening statement until immediately before your case in chief? • Suggestion: No, use the opportunity to push your affirmative case

6. 3. • Should you rely on testimony in the opening statement from a witness who may not appear? • Pros: • Makes use of favorable evidence that is likely to be presented • Avoids later confusion when evidence not discussed in opening statement is presented  • Cons: Risks overstating the case in event the witness does not appear

7. 3. • Should you rely on testimony in the opening statement from a witness who may not appear? • Suggestion: No, don’t risk undermining your credibility

8. 4. Should you argue in the opening statement? Pros: Cons: Miss opportunity to tell a good story Detracts from letting the arbitrator reach own conclusions from the facts • Provides favorable characterization of the facts at the outset • Provides framework for arguments from the outset

9. 4. • Should you argue in the opening statement? • Suggestion: Yes, somewhat, but focus on the facts

10. 5. • Should you consider using witness statements instead of live witnesses? • Pros: • Potentially less time consuming • Memorialized so will not be forgotten by the arbitrator • Cons: • Miss opportunity to respond to the arbitrator’s questions or concerns • Miss opportunity to easily convey emotional investment in the case • No opportunity for cross-examination • Miss opportunity to point out flaws in the case • Miss opportunity to argue and make connections

11. 5. Should you consider using witness statements instead of live witnesses? Witness Credibility Not An Issue Witness Credibility An Issue Suggestion: Yes, use the form that best fits your client’s needs provided the witness statements do not take a summary form Compromise: Written direct statements with live cross-examination • Suggestion: Yes, use the form that best fits your client’s needs

12. 6. • Should you use leading questions on direct examination? • Pros: • Moves the case along more quickly • Allows you to control the testimony • Cons: • Does not permit the arbitrator to hear the witness’s story • Does not encourage a focus on facts • The arbitrator may think you are trying to hide facts or the “true story”

13. 6. • Should you use leading questions on direct examination?  • Suggestion: No, let the witness tell the story

14. 7. • Should you try to publish important documents or sections of documents? • Pros: • Makes it more likely the arbitrator is aware of the document’s content and critical components • Alerts the arbitrator to the content at a relevant point in the proceeding • Cons: • May insult the arbitrator’s intelligence • May insinuate you do not trust the arbitrator

15. 7. • Should you try to publish important documents or sections of documents? • Suggestion: Yes, place relevant information in context • Compromise: Arbitrator can read the document with relevant provisions highlighted

16. 8. • Should you cross-examine? • Pros: • Provides opportunity to argue and make a point • Provides opportunity to learn information from the other side’s witnesses • Cons: May get unfavorable answer

17. 8. • Should you cross-examine? • Suggestion: Cross-examine only where it really matters and only if you can ask “safe” questions, or if it is the rare occasion when you do not care if you receive an unfavorable response • Compromise: Err on the side of not cross-examining

18. 9. Should you write a closing brief in lieu of an oral closing argument? Pros: Cons: Time-consuming and fosters delay Miss opportunity to respond to the arbitrator’s questions or concerns Miss opportunity to easily convey emotional investment in the case For many, miss an opportunity to more easily convey your argument • Easier to include citation to law • Easier to present complex ideas • Memorialized so will not be forgotten by the arbitrator • May permit opportunity for integrating further creative ideas or critical thinking

19. 9. Should you write a closing brief in lieu of an oral closing argument?

20. 10. • Should you describe the opposing party’s argument before rebutting it in a closing brief? • Pros: Makes clear what arguments you are addressing and that you have rebuttal for each  • Cons: Provides “air time” for the opposing party’s arguments

21. 10. • Should you describe the opposing party’s argument before rebutting it in a closing brief? • Suggestion: No, not unless necessary for clarity

22. Historical Reconstruction • Time-line • Determinative event • Before • After

23. Inference Chains • Strength of Case • Direct examination • Closing argument or brief

24. Example Inference Chain Evidence: Another employee routinely brought his firearm to work. Inference 1: The employee would interact with supervisors at work. Inference 2: The supervisors would notice he had a firearm. Conclusion: Supervisors permitted another employee to carry a firearm on company property.

25. Example Inference Chain • Another employee routinely brought his firearm to work (fact) ------------ • The employee would interact with supervisors at work (inference) ---------- • The supervisors would notice he had a firearm (inference) ----------------- • Supervisors permitted another employee to carry a firearm on company property (conclusion).

26. Example Inference Chain • Another employee routinely brought his firearm to work which suggests that the employee interacted with supervisors who would notice that he had a firearm. Thus, the supervisors permitted another employee to carry a firearm on company property.