Lawyering Skills That Just Might Tip the Scales in Close Arbitration Cases

1. Lawyering Skills That Just Might Tip the Scales in Close Arbitration Cases Ariana R. Levinson

2. A. • 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. A. • 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. D. • 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

5. D. 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

6. E. 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

7. E. Should you write a closing brief in lieu of an oral closing argument?

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

9. A Few Good Men

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

11. 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.

12. 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).

13. 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.

14. Slide 4 This Land is Your Land

17. This Land is Your Land • return

19. The benefits of an explicit discussion about the skills we use in arbitration are two-fold. First, many arbitrations involve close cases because parties often settle cases that are not close. By discussing the skills involved, we may learn about something we had not previously considered. The use of that technique may give us enough of an edge over our adversary that it just might make the difference in the outcome of our next case. Second, many of us mentor newer associates. By learning explicit terminology about the skills we use in arbitration, we may be better able to explain to newer associates what they should do differently to improve their success as an advocate in arbitration, or perhaps even as an arbitrator. The paper discusses a hodge-podge of interesting skills-related questions. Section II discusses some select issues that advocates should consider when deciding how to present their cases. Section III discusses whether to use PowerPoint, and how to use it well, in arbitration. Section IV discusses 14 Penn Plaza v. Pyett, the drafting of clear and explicit waivers, and developments since the decision. Finally, Section V offers something for arbitrators, discussing some of the qualities of a well-written arbitration opinion.

20. Section III discusses whether to use PowerPoint, and how to use it well, in arbitration. The benefits of an explicit discussion about the skills we use in arbitration are two-fold. First, many arbitrations involve close cases because parties often settle cases that are not close. By discussing the skills involved, we may learn about something we had not previously considered. The use of that technique may give us enough of an edge over our adversary that it just might make the difference in the outcome of our next case. Second, many of us mentor newer associates. By learning explicit terminology about the skills we use in arbitration, we may be better able to explain to newer associates what they should do differently to improve their success as an advocate in arbitration, or perhaps even as an arbitrator. The paper discusses a hodge-podge of interesting skills-related questions. Section II discusses some select issues that advocates should consider when deciding how to present their cases. Section III discusses whether to use PowerPoint, and how to use it well, in arbitration. Section IV discusses 14 Penn Plaza v. Pyett, the drafting of clear and explicit waivers, and developments since the decision. Finally, Section V offers something for arbitrators, discussing some of the qualities of a well-written arbitration opinion.

21. §30 NO DISCRIMINATION. There shall be no discrimination against any present or future employee by reason of race, creed, color, age disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, . . . or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance procedure (Article V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination. Id. at 1461.

22. Franken on Mandatory, Binding Arbitration

23. If awards are well written, they are more likely to be read, understood and respected. If awards are respected, arbitration and other dispute resolution processes are more likely to be trusted and used. - David Elliott

24. Code of Professional Responsibility for Arbitrators of Labor-Management Disputes [The] award should be definite, certain, and as concise as possible. When writing an opinion, an arbitrator should consider the following factors: Desirability of brevity, consistent with the nature of the case and any expressed desires of the parties; need to use a style and form that is understandable to responsible representatives of the parties, to the grievant and supervisors, and to others in the collective bargaining relationship; necessity of meeting the significant issues; forthrightness to an extent not harmful to the relationship of the parties; and avoidance of gratuitous advice or discourse not essential to disposition of the issues.

25. Large Scale Organization • Relaying Facts • Small Scale Organization • Proofreading

26. B. • 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

27. B. • 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

28. C. 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

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

30. F. • 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

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