Lawyer advocacy in arbitration holds as much importance as a trial in court. Great arbitration lawyering is therefore essential to good lawmaking.
There are lots of pros and cons when a case goes for arbitration. However, some lawyers make key arbitration mistakes. Here are some examples.
Not Considering the Basics
What disputes can arbitration cover, and what can it not? Arbitration depends on contracts. There are many detailed clauses on drafting arbitration clauses, but very often, drafters do not consider the basics.
What information will you need in the case of a dispute over this contract? And what rules will apply in the case of arbitration? How many arbitrators will be there, one, or will there be a panel of three? These and several rules are important while considering the arbitration clause? The most glaring mistake that arbitrators make is not considering the basic clauses of an arbitration agreement.
If you enter the negotiations, understand that this is not the time to present your case to the arbitrator. You should make a genuine, good-faith effort to resolve disputes without the involvement of an arbitrator. When you know the nitty-gritty of the arbitration clauses, you’ll be in a better position to oppose counsel if necessary.
Not Selecting the Right Arbitrator
After filing the arbitration demand with the (ADR) alternative dispute resolution (ADR) agency, all counsel are sent to the potential arbitrators with their respective bios. The selection process needs to be diligent as selecting a jury.
Choosing the arbitrator is important as it is that person who will render the final non-appealable decision. You can eliminate the arbitrators that do not serve the purpose. List out the names of arbitrators in order of preference; next, send the revised list to the administrator.
Not Knowing Your Arbitration Pre-Discovery Rights and Limitations
In the process of arbitration, the party document discovery is mostly allowed. The mistake that most lawyers perform is not knowing the specific arbitration pre-discovery rights and limitations. Does the arbitration clause also address pre-arbitration discovery? The civil procedure does not apply when it comes to application in arbitrations. In some cases, depositions may not be allowed.
Unlike in a court trial, there is no third-party discovery too. While agreeing to arbitration takes a lot of doing in the first place. Federal circuit courts vary on the grounds of the enforceability of such subpoenas. When it comes to arbitration laws, the arbitrator has no power to enforce any subpoenas.
Mistakes based on Exhibits
While introducing exhibits in arbitration, the evidence of rules does not apply. Typically, each side shows up with its own set of exhibit books on the day of the hearing. This can lead to confusion and make the arbitrator unhappy. It is mostly because there are identical exhibits with different exhibit numbers. Counsel should first consider the proposed exhibits and together create many exhibit books.
Create an index that would help put together pre-hearing briefs, summaries of damages, and pictures. In addition to the index, you can also create an exhibit list. It is also important for creating counsel’s pre-hearing preparation to find all about the exhibit numbers. If the arbitration depends on documents with numerous exhibit books, binders would help open and close the documents.
Not Displaying Your Creativity
There will be key witnesses or experts giving testimony on day one in court, and the witnesses who do not give the testimony may get to testify days later. Witnesses can only take turns to turn up, regardless of circumstances. In arbitration, creativity should be the norm of the game.
If there are experts, you can suggest a hot box and bring forth the testimony back-to-back or present them at the same time. You need to present their multiple opinions one at a time. Both sides have to present the key witnesses on more than one issue. Ask them to testify back-to-back, take them out of order, or offer testimony through zoom. Remember to present the arbitrator with facts and arguments through a fire hose. Even if arbitration seems to be informal at a glance, you need to prepare well in court.
These are some of the gross mistakes that you can make as a lawyer. Understand these essentials and work on them to ensure your arbitration plea is smooth and effective.