- The Best Strategies to Present Your Case In Arbitration
- Suggestions are made to assist respondents to prepare for arbitration | CCMA
- Terry O'Neill EA LLC
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The Best Strategies to Present Your Case In Arbitration
How big is the room? Many firms hire trial techs and graphic firms to help with presentations. The advantage in such outsourcing is they can make your presentation look professional and eliminate potential problems. Firms try to save money by having an associate who is tech literate develop the presentation.
While it seems like a great use of resources, is it really? The advantage of using a firm like Cogent Legal to help in the development of presentations is experience. When making a visual presentation for arbitration, keep in mind: Your jury is the judge. In a major arbitration, the arbitrator will be bombarded with vast amounts of information and documents. Arbitrators are just as human as any juror, and every study on the subject supports that people remember facts up to six times better when they learn that fact in both a visual and oral manner as opposed to oral alone.
A well-done visual presentation for an opening sets the field in your favor, and engages the arbitrator, especially if the other side fails to do one.
Avoid bullet points. He or she has already seen your brief, presumably read the headings and does not really need you to read them.
Suggestions are made to assist respondents to prepare for arbitration | CCMA
If you must put up a list of bullet points, reference your points by discussing the topic, but do not simply read what is on the screen. Absolutely nobody likes being read to what they can read better and faster themselves. The arbitrator acts as a private judge, and will make a ruling that is binding on the parties. If deemed necessary, the decision is enforceable in a court of competent jurisdiction. Although it is more informal than traditional litigation, arbitration is an adversarial process. You will be required to present your case by calling witnesses and presenting documentary evidence, and making arguments to persuade the arbitrator that he or she should rule in your favor.
Arbitrators will charge the parties for pre-hearing conferences and review of documents, as well as time spent preparing the award. There may also be an administrative expense if the parties go through the American Arbitration Association. It usually takes several months for parties to do the necessary discovery and other work to prepare for an arbitration. The hearing itself will last anywhere from one day to a week or more. The proceedings are private and not open to the public. There is no transcript of the proceedings unless one party chooses to incur the expense of obtaining a transcript.
Arbitration clauses can go into even deeper detail, such as specifying how evidence and written submissions will be presented to the arbitrator, which issues will be discussed in live hearings, how much time will be allotted for the proceedings, and whether the arbitrator will issue a summary decision or one that includes the reasoning of the arbitrator or arbitrators.
But it is useful to remember that by the time a dispute escalates to arbitration, one or both parties may be disinclined to cooperate even on routine matters, delaying proceedings and increasing the cost. They present risks that may come back to haunt if or when disputes arise later. Contrary to conventional wisdom, arbitration is not always cheaper than litigation. Arbitrators may not be bound by the same rules of evidence as judges in civil courts and may be inclined to allow almost any evidence or testimony the parties consider meaningful. Similarly, they may not be bound by limitations in court time or court-imposed schedules that are often seen in many jurisdictions.
In complex international cases, that could mean extended hearings in far-off jurisdictions and the need to fly in both fact and expert witnesses from around the world for extended time periods, plus multiple expert reports, reply reports and sur-rebuttal reports, costing hundreds of thousands of dollars. It could also mean many days of live testimony requiring attendance by general counsel and business leaders who have carriage of the case for their respective employers, a huge distraction from their regular day jobs. Agreeing to a panel of arbitrators can also result in multiple starts and stops due to scheduling conflicts that rarely arise when a single judge oversees a proceeding, all of which add to time and costs required for completion.
The arbitration clause may address the possibility of awarding of legal fees and other costs of the action or that may be the purview of the arbitrators themselves: a further important consideration at the outset. In theory, arbitration moves faster than litigation. But, in reality, some elements of arbitration can lead to a slower process.
In litigation, judges often put strict time limits on discovery, and trials are typically conducted over a specified number of consecutive days, often dictated by the trier of fact. Arbitration can proceed in fits and starts according to the schedules of the parties and the arbitrators.
Terry O'Neill EA LLC
Hence, one must think carefully about the evidence that will be required to present a case, and how long it will take to gather the information. The availability of fact witnesses who were present at an event in the past or who may have participated in a transaction, etc. As an example, does the arbitration agreement require that financial analysis be based only on audited financial results and, if so, when will final financial statements be available?
Are the experts available immediately or will the proceedings have to be scheduled according to their availability and other commitments? Some cases may involve a multitude of experts from around the world. While an arbitrator may only infrequently get involved with discovery orders, the agreement may allow for additional experts along with their reports which are then followed up with rebuttal, all of which add even more time and cost to the process. We have been involved in arbitrations in which documents continued to be produced and expert reports continued to be exchanged well after the extended hearings began, irrespective of the original expectations of the parties.
If a disputed transaction occurred years earlier, plan on spending more time identifying and contacting witnesses and obtaining documents. A dispute over construction completed a decade ago may become a time-consuming effort to pull together engineering documents, testimony and other evidence. Though these issues may also be faced in ordinary litigation, they may be heightened in an arbitral context. And what about the arbitrator? Sought-after arbitrators have their own scheduling issues, but they may well be worth waiting for.
And remember even the process of selecting an arbitrator or arbitration panel can take time — weeks if not months in the case of a three-person panel and particularly where the two party-proposed arbitrators pick the third. Some arbitrators follow their judicial counterparts and enforce strict time limits on proceedings, either on their own or by agreement among the parties. That raises additional questions and tactical decisions. If the latter, make sure the written evidence they submit to the arbitrator is clear, compelling and perhaps deals directly with every possible argument from the other side.
Your expert will not get a second chance to convince the arbitrator, except under the pressure of cross-examination. That finality is most often tested in cases where the arbitrator disallowed or refused to hear relevant evidence that one party argues should have been allowed. The prospect of appeal on such grounds leads many arbitrators to give the parties wide latitude to present their cases.
Experts may be allowed to cover more ground than under the strict rules of evidence in a court setting, and in our experience arbitrators may be more inclined than judges to question witnesses directly presumably to test their own thinking on the various issues and canvass the real business perspectives that ought to be brought to bear in a fair and equitable decision.
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Finality and privacy may be interrelated issues. As noted earlier, both parties may be attracted to an arbitral setting to ensure finality and privacy, not only over the ultimate decision and dollars that flow from it, but also over their own business practices, conduct, documents and other evidence that may attract unwanted attention from various other parties — the press, competitors, tax, antitrust and other regulatory authorities, to name a few. Selecting the arbitrator.
The process for selecting a presiding arbitrator is often defined in the arbitration clause. Typically, the two sides specify qualifications, or work it out in pre-arbitration negotiations. The choice of an arbitrator depends on the nature of the dispute. If it only involves an accounting question, such as the proper application of accounting principles as they may apply in the calculation of working capital on the close of a transaction, an arbitrator with accounting or finance experience in that particular industry might be best.
Valuation experts frequently serve in disputes over the value of a business and financial losses arising from any number of contract breaches and tort matters, including, for example, those arising from intellectual property infringements.