Reproduced by permission. ©2018 Colorado Bar Association FEATURE | ALTERNATIVE 47 Colorado Lawyer 26 (April 2018). All rights reserved. Effective Advocacy in Arbitration

BY JANE MICHAELS

26 | COLORADO LAWYER | APRIL 2018 This article explores the benefits of arbitration over litigation and provides practical pointers for trial lawyers who want to sharpen their advocacy skills in arbitration.

arties to arbitration proceedings fre- Knowing in advance the important issues that quently comment that they appreciate need to be addressed in an arbitration provision the arbitration process because it is a “ will provide the client with additional security faster, more efficient, and less costly The language of an if a dispute occurs after the has been Pway to resolve their business disputes. Unlike signed. litigation, arbitration provides the parties with An arbitration clause must clearly define an opportunity to exercise significant control the scope of arbitrable claims. Important con- over the entire proceeding—from the expedited becomes critical siderations about the scope include: exchange of information to the prompt resolu- ■■ Will any dispute relating in any manner tion of disputes, to the determination once a dispute to the subject matter of the contract be of customized procedures for the hearing on arises. Knowing arbitrable? the merits. ■■ Do the parties want to include, or exclude, At the outset, the parties can choose arbi- in advance the disputes regarding claims that are not trators who have specialized knowledge and necessarily connected to a cause of action expertise in the substantive area of the dispute. important issues for breach of contract, such as antitrust As a result, arbitrators can decide prehearing that need to be claims, claims, or matters quickly. In addition, arbitrators have certain tort claims? flexibility in working with the parties to deter- addressed in ■■ What law will govern the procedural and mine the location of the arbitration hearing substantive issues in dispute? and the hours during which the hearing will be an arbitration ■■ In what city will the arbitration take place? held. If it is more convenient for counsel and provision will ■■ Will the dispute be decided by one ar- the witnesses, hearings can even be conducted bitrator or a panel of three arbitrators? in the evening or during the weekend. provide the client ■■ What qualifications do the parties want Because discovery is generally limited and the arbitrator or arbitration panel to have? the grounds for challenging arbitration awards with additional ■■ Do the parties want specific administrative are narrow, arbitration is far less expensive security if a dispute rules to apply, such as the Commercial than most litigation. Every arbitration dispute Rules of the American Arbitration Associ- can be decided in a timely manner—fairly, occurs after the ation (AAA), the rules of the International cost-effectively, and with finality. In addition, Chamber of Commerce (ICC), or those of arbitration in a private setting has greater contract has been another administrative body? potential than litigation to preserve business ■■ Before arbitration, will formal relationships. signed. or an informal dispute resolution process This article is based on the author’s 25 be required? years of experience serving as an arbitrator in ■■ Will there be any limitations on discovery commercial and intellectual property cases. It in the arbitration? is intended to assist trial lawyers in maximizing ” ■■ If there is a dispute regarding whether a the benefits of arbitration and optimizing their claim is arbitrable, who will determine prospects for effective and successful advocacy counsel typically draft arbitration clauses in arbitrability?1 in arbitration proceedings. business , litigators should make an ■■ Will there be any limits on available effort to educate their colleagues regarding the remedies? For example, do the parties Why Trial Counsel Should Care importance of concepts to be considered in the agree that no punitive may be about Drafting Arbitration Clauses drafting process. The language of an arbitration awarded or that the arbitrator may not Although in-house counsel or outside corporate clause becomes critical once a dispute arises. impose injunctive relief?

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■■ How will attorney fees and arbitration counseling clients and their corporate colleagues expenses be handled; will costs be divided regarding best practices in drafting arbitration equally between the parties or will the “ clauses. non-prevailing party pay all attorney fees The arbitral and expenses incurred? Make a Positive First Impression ■■ Do the parties want to include a statement needs A well-presented demand for arbitration or a that all documents, testimony, and pro- carefully substantiated response to a demand ceedings in the arbitration will be treated to understand for arbitration provides the arbitrator with a as confidential? the nuances of positive first impression. When claims and ■■ How will the arbitrator’s award be en- defenses are clearly described, the arbitrator forced? 2 the case, both is better prepared to assist the parties from the All of the foregoing issues must be considered outset of a case. Advocates do a disservice to when drafting a meaningful arbitration provision factually and clients when a demand for arbitration is nothing in a business contract. In my experience, most more than a cryptic reference to breach of the litigators get involved well after the fact, some- legally, to do its operative contract, without any meaningful times years after the governing arbitration clause job properly. supporting factual information or specific has been written by others and without any input legal claims. Likewise, clients are disserved if from trial lawyers who will actually handle the the response to the demand for arbitration is arbitration proceedings. This can compromise nothing more than a litany of denials. the efficacy of the arbitration proceedings. The needs to understand the Advocates in arbitrations should get involved in ” nuances of the case, both factually and legally,

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28 | COLORADO LAWYER | APRIL 2018 to do its job properly. In addition, clients better understand the scope of the factual and legal issues in dispute when the initial submission is clear and substantive. Counsel representing the claimant should quantify the basis for and extent of damages being sought and explain clearly any nonmonetary relief requested, including the need for a preliminary . Counsel for the respondent should raise promptly any jurisdictional or procedural deficiencies, such as a non-arbitrable claim or a statute of limitations bar. At the earliest stage of the proceeding, take advantage of the opportunity to make a positive first impression and to begin the critical process of . with opposing counsel how many depositions are needed, the maximum amount of time Be Proactive in Preparing for allowable for each deposition (or the maximum the Preliminary Hearing number of hours for all depositions), and any Counsels’ first encounter with the arbitration other reasonable parameters to limit deposition tribunal occurs at the preliminary hearing, discovery. It is most important to identify the which is often held telephonically. Preparing key witnesses for each party. Unless the parties promptly for the preliminary hearing can make a agree to forgo depositions, or the arbitration significant difference in the development of the clause precludes depositions entirely or ad- Do Not File Unnecessary case. Start by reaching out to opposing counsel dresses depositions explicitly in some unique Motions in Arbitration before the preliminary hearing and then, to way, arbitrators will typically allow only a few Frequent and unnecessary motions practice the extent feasible, cooperate in outlining the depositions in complex commercial arbitrations contributes to the high cost of litigation. Resist hearing parameters. The arbitration clause will so that the arbitral process does not devolve the urge to file non-dispositive discovery mo- presumably state the governing law and venue into protracted litigation. tions in arbitration. Some arbitrators require of the arbitration. But counsel can agree on In preparing for the preliminary hearing, counsel to alert them to a discovery dispute many other aspects of the prehearing process. confer with opposing counsel regarding the by filing a very brief letter or email describing In most arbitrations, even when there are no number of days needed for the hearing on the the disputed issue. The goal is to minimize the depositions, the parties are required to exchange merits and the earliest time frame within which time and expense of formal motions whenever documents. At the earliest opportunity, counsel the parties and counsel are available for the discovery or other non-dispositive disputes can should discuss issues surrounding electronically evidentiary hearing. It is advisable to discuss be handled informally. stored information (ESI), including logistics whether some or all parties want to pay for Similarly, dispositive motions should be regarding appropriate search terms as well as a reporter at the hearing. Also, decide avoided in almost all arbitration proceedings. the timing and format of documents produced whether the arbitrator should issue a standard There is a presumption against granting a dis- electronically. award, a reasoned award, or detailed findings of positive motion if there is a material issue of fact In preparing for the preliminary hearing, fact and conclusions of law. In my experience, in dispute. Although there are very few grounds counsel should endeavor to reach agreement the parties typically want a reasoned award, on which an award can be vacated, one such regarding limits on written discovery and rea- which is the most prudent approach in most ground is an arbitrator’s refusal to hear relevant sonably prompt deadlines for fact discovery. complex disputes. evidence. As a result, motions for summary When experts are anticipated, counsel should In addition to the foregoing issues, at the judgment are rarely granted. The only types discuss the general subject areas for expert preliminary hearing the arbitrator will typically of issues that warrant prehearing dispositive testimony, the template for expert reports, address firm deadlines for (1) exchanging pre- motions are those based on jurisdictional or and reasonable deadlines for expert discovery. liminary and final disclosures of testifying fact legal issues where there are no factual disputes, If the arbitration clause does not address and expert witnesses; (2) requesting subpoenas; such as a non-arbitrable claim or a claim clearly whether there will be depositions and the (3) exchanging hearing exhibits; (4) agreeing barred by the applicable statute of limitations. number of depositions that each party is entitled on joint exhibits; (5) exchanging demonstrative These types of motions can and should be filed to take, it is important to discuss in advance exhibits; and (6) submitting prehearing briefs. and decided as soon as possible.

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Seize the Power of Prehearing Briefs The opening statement is designed to re- and articulate. If opposing counsel engages in The prehearing brief is critically important. It inforce what the arbitrator has already read unprofessional conduct, rise above the pettiness should provide the arbitrator with additional in your prehearing submissions. Use demon- and score points with the arbitration tribunal by details regarding the background of the dispute strative graphics to summarize information maintaining your professionalism. In addition, and present a clear and compelling summary of supporting your themes; great graphics are advise your clients to be present and paying the case. The prehearing brief should provide impactful, but misleading graphics lose lots of attention at the hearing, not whispering, texting, supporting legal authority, attaching and high- points (see further discussion on this below). reading emails, or darting in and out of the lighting the pertinent portions of key cases. If Make sure that these graphics are accurate, hearing room. there are any difficult evidentiary issues, these because your credibility is always at stake. should be brought to the arbitrator’s attention. Strive to never overstate or lose credibility Be Organized All counsel must describe the factual details with the arbitrator. Although thousands of documents may have and substantiate their respective claims and been exchanged during the prehearing dis- defenses effectively. In addition, the claimant covery process, it is your job to winnow those must clearly state the relief it seeks. documents to the critical ones that support your case. Be a Credible, Persuasive Advocate Consider setting up a conference call with Devote the same preparation to arbitration “ opposing counsel to stipulate to a procedure that you devote to cases tried in court. Focus that minimizes confusion, fosters expeditious on each phase of the proceeding to maximize Your reputation presentation of witness testimony, and is fair the effectiveness of your advocacy. is your most to both parties. For example, counsel can agree that they will provide each other with a list of the Prepare, Prepare, Prepare important asset witnesses their side will call the following day, Fundamentally, counsel must know the case the order of the witnesses’ testimony, and a list exhaustively. Anticipate every counter-argu- as a trial lawyer. of documents that are reasonably anticipated ment. Be ready for the unexpected. Read all to be used during direct examination of that relevant documents, especially those that are Be professional witness. Counsel should consider stipulating not helpful to your case. Research the law. Work at all times to the admissibility of all business records with your witnesses. Prepare crisp, effective when appropriate and agree to avoid wasting cross-examinations. Remain vigilant. throughout hearing time laying an evidentiary foundation to establish that a document is a business record. If Never Pass Up the Opportunity the arbitration there are objections to any of the exhibits to be to Make an Opening Statement process. used in direct examination, the parties should The opening statement is the culmination and meet and confer to resolve the objections. If synthesis of your preparation. Use it to capitalize they cannot reach a resolution, the objections on the months you’ve spent living with the should be brought to the arbitrator’s attention case by crystalizing its critical aspects to a few as promptly as possible to avoid interference salient points that can be easily understood, ” with the scheduled timeframe for the hearing. absorbed, and believed. At the hearing, counsel should provide An opening statement should be brief but the arbitrator and opposing counsel with a compelling, incorporating the most critical notebook of exhibits to be used during direct facts, concepts, and themes of the case. Tie the Be Professional at All Times examination of each witness. At the conclusion anticipated evidence to the key legal issues that Your reputation is your most important asset of the hearing, counsel for the parties or their the arbitrator will decide. It is crucial to describe as a trial lawyer. Be professional at all times paralegals should confer to ensure both that the key facts accurately and to deal candidly throughout the arbitration process. Civility to they are in agreement regarding which exhibits with bad facts, anticipating (if representing the opposing counsel is critical. Never personally have been admitted and that the arbitrator has claimant) or addressing (if representing the attack or disparage your opponent. Refuting an copies of every admitted exhibit. respondent) opposing counsel’s arguments opposing argument is different from personally In many arbitrations, the parties desire to briefly but powerfully. Reserve most of the attacking opposing counsel. split the time evenly. Counsel should designate purely legal arguments for closing argument If opposing counsel insults you (or your a paralegal or other individual to keep track of and/or post-hearing briefs. client) or flaunts the rules, remain calm, rational, the time used by each side during the hearing.

30 | COLORADO LAWYER | APRIL 2018 Hopefully, there will be no disagreement over Direct examinations should provide sup- the allocation of time. If there are any such dis- porting details on issues that are important putes, they should be raised with the arbitrator to the claims or defenses of your case. Details 10 TIPS FOR immediately. on unessential points cause confusion and EFFECTIVE The above logistical and procedural agree- detract from the persuasiveness of your client’s ments are recommended because the goal of story. As all good trial lawyers know, the key ADVOCACY IN arbitration is to present the parties’ dispute as principles of persuasion are primacy, recency, ARBITRATION efficiently, clearly, and substantively as possible, and strategic repetition. The most important so that the arbitration tribunal can render a information should be presented first and last. Get involved in counseling decision fairly and expeditiously. Seasoned Less important details can be sandwiched in 1 clients and corporate lawyers arbitrators will not allow arbitration proceedings the middle. In general, dwell on the important regarding best practices in drafting to get bogged down in procedural wrangling. points of each witness’s testimony, emphasizing arbitration clauses. Similarly, effective advocates in arbitration their significance. Start strong and end strong. should act preemptively to preclude those At the earliest stage of the types of distractions from occurring during the Present Compelling Cross-Examination 2 proceeding, take advantage of course of the hearing. As in any trial, the advocate in arbitration must the opportunity to make a positive cross-examine carefully and briefly, always first impression and begin the Use Demonstrative Exhibits setting realistic goals. As a cross-examiner, critical process of persuasion. In preparing a case, good lawyers become you have the right to ask leading questions Prepare promptly for the completely conversant with all of the key doc- and the right to insist on a responsive answer. preliminary hearing; work uments, dates of meetings, and critical events. Remember that cross-examination is undertaken 3 cooperatively with opposing Share your knowledge with the arbitrator by only to serve some purpose within your theory counsel; and consider customized presenting a clear, cogent timeline that distills of the case. Before cross-examining a witness, procedures for the hearing on the these critical dates, documents, and events. determine whether the cross-examination can: merits. A concise chronology makes it easier for the ■■ be used to establish facts detrimental to arbitrator to absorb the salient facts to reach a the opposing party’s case; Resist the urge to file non- rational conclusion. Graphs, damages charts, ■■ create inconsistencies among the oppos- 4 dispositive discovery motions. maps, photographs, and videos are all useful, ing party’s witnesses; particularly in a complex case. It is helpful to ■■ point out positive facts to support your Seize the power of prehearing highlight critical portions of key documents or client’s version of events; 5 briefs. provide “call outs” of key passages in a document. ■■ discredit the witness by showing that the Keep your opening statement The trial lawyer’s job is to educate the arbi- witness is biased or has a financial interest short, clear, and persuasive. tration tribunal regarding the case. To be more in the outcome of the case; 6 effective and persuasive, a trial lawyer should ■■ reveal that the witness has testified incon- Be professional, organized, provide evidentiary support for the case theories sistently or been untruthful in the past; or and strategic. and reinforce trial themes with documentary ■■ demonstrate that the witness’s testimony 7 and graphic evidence. is inherently implausible, or that the Use demonstrative exhibits testimony conflicts with the testimony of 8 effectively. Be Strategic in Direct Examinations other, more credible witnesses. Embrace questions from the Learning to prioritize makes you a more per- The bottom line is that you should be selective in arbitrator. suasive advocate. Before deciding to call any how you choose to cross-examine each witness. 9 witness to testify, ask yourself the following Cross-examination of an opposing party’s In your closing argument questions: Why call this witness? How will the expert witness requires additional preparation. 10 and/or post-hearing brief, witness address any element of the claims or Do your homework. Your research should include ample evidentiary support defenses? What exhibits can be introduced include the subject matter on which the expert for your case theory, invoke the through the witness? How can the witness bolster is testifying, as well as the expert witness’s pro- trial themes, and provide analytical or detract from the credibility of others who may fessional background. What articles or books has support in the case law. testify? And how can the witness strengthen the expert published? Can you obtain transcripts the presentation of the case or appeal to the of prior trial and/or deposition testimony of arbitrator’s sense of ? 3 the expert? Are you able to impeach the expert

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with his own prior assertions in other cases? The final argument must communicate your argument and post-hearing brief provide Other areas for potential cross-examination theory of the case, supporting the themes with a opportunities to address any inferences to be of experts include favorable concessions on synthesis of the evidence adduced from various drawn from your cross-examinations. These threshold issues. For example, the opposing witnesses and exhibits in a manner that leads final communications with the arbitrator are expert may agree with your own expert on ineluctably to the conclusion that your client the culmination of the case. A good closing certain points or may acknowledge the reliability should prevail. Your final argument must be argument can crystalize and enhance a well of your own expert’s data or the validity of her logical, legally supportable, and credible. In prepared evidentiary presentation, but it is assumptions. You may be able to elicit conces- final argument, unlike opening statement, you unlikely to resurrect a poorly presented case. sions regarding several of the major premises are entitled to draw legal conclusions based on of your case, even if the expert disagrees with the evidence presented. Conclusion your ultimate conclusion. You may also be able If your client has a court reporter at the Understanding the salient differences between to extract a significant criticism of the opposing hearing, the reporter’s transcript can provide arbitration and litigation and following the tips party’s conduct. In other words, even if the invaluable assistance in preparing closing outlined in this article will help counsel become opposing party’s expert has reached a final argument or a post-hearing brief. You can use a more effective and persuasive advocate in conclusion favorable to the party that hired excerpts from the transcript to emphasize the arbitration. her, she may be unwilling to approve all of that import of a witness’s testimony. Post-hearing party’s underlying conduct. briefs should provide the tribunal with sup- Finally, you may be able to challenge the porting case law, highlighting key portions of expert witness’s independence and impartiality. the applicable legal authority. Some experts have an ongoing relationship Your closing argument and/or post-hearing Jane Michaels is a partner at Holland & Hart LLP. She focuses her practice with opposing counsel or the opposing party, brief must tell a persuasive story, with ample on alternative dispute resolution and which compromises the independence of their evidentiary support for your case theory. It serves as an arbitrator and mediator opinions. should consistently invoke the trial themes in commercial and intellectual prop- Like cross-examination of a fact witness, and provide analytical support in the case law. erty disputes. She is on the American Arbitra- tion Association’s panel for large and complex the best practice is to cross-examine an expert If you represent the claimant, it is imperative commercial cases and serves as an arbitrator witness briefly, saving the best for last, and to articulate clearly the relief that your client in international disputes administered by the emphasizing primacy and recency. is seeking. Provide the arbitrator or arbitra- International Centre for Dispute Resolution. Michaels is a member of the National Acade- tion panel with a calculation of the damages my of Distinguished Neutrals and a Fellow of Embrace Questions from the Arbitrator being sought. If you represent the respondent the College of Commercial Arbitrators— The arbitrators’ questions may provide some and are challenging the claimant’s damages, [email protected]. insight into what is puzzling or confusing them. provide a detailed analysis of the errors in the Coordinating Editor: Marshall Snider, Don’t squander the opportunity to clarify or claimant’s calculation and, if applicable, state [email protected] enlighten the panel. Keep an eye out for the the assumptions on which your alternative arbitrators’ reactions to testimony. And make calculation is based. sure that the arbitrators have an exhibit in front To the extent possible, do not resort to of them before questioning the witness about it. reading your argument from a prepared text. If your client can afford to use technology Make every effort to maintain eye contact and to project exhibits digitally on a large screen, communicate directly with the arbitrator. The that can be a helpful tool for the trier of fact. It speed, inflection, and volume of your voice can enables the arbitration panel to follow along as be important persuasive tools. If you have an you highlight, in real time, the key sentences or impassioned closing argument, don’t be overly paragraphs that are the subject of fact or expert dramatic or emotional in ways that undermine NOTES witness testimony. your credibility. 1. If the AAA’s Commercial Rules apply, the arbitrator is empowered to determine the In your post-hearing brief, put yourself arbitrability of a claim. Present a Powerful Closing Argument in the arbitrator’s shoes. Think about what 2. The AAA provides sample arbitration clauses and/or Post-Hearing Brief you would want to know about the case to that include the following language: “Judgment on the award rendered by the arbitrator(s) Final argument is a critical point in the case render a decision in favor of your client. Make may be entered in any court having to demonstrate your advocacy skills. This is sure that your brief is easy to read and well thereof.” See www.adr.org/Clauses. organized, with headings and subheadings 3. For an in-depth treatment of arbitration the time to focus your analytic, interpretive, advocacy skills, consult Cooley with Lubet, and forensic skills on the task of persuasion. to facilitate access to key points. The closing Arbitration Advocacy (NITA 2d ed. 2003).

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