Welcome back to the First Legal Depositions mini-series on common arbitration mistakes! If you missed the first installment, we recommend starting from the beginning for the most enjoyable reading experience. In this article, we’ll cover the procedures for late-stage arbitration and offer our tips and tricks to help you ensure everything runs smoothly!
Let’s get started!
Neglecting Proper Exhibit Preparation
After you’ve completed the discovery process, it’s time to focus on the exhibits you plan to introduce through sworn testimony. In most cases, you’ll still need to prepare physical exhibit books. This process can quickly become confusing and frustrating if you fail to communicate with opposing parties. For example, if your exhibit binders present an email as Exhibit 12, while the defense presents the same email as Exhibit 31, you’ll get stuck constantly flipping through pages. Instead, you should prepare for success by discussing the exhibit numbers in advance and preparing joint exhibit books. This practice will simplify the process of direct and cross-examination.
Overgeneralizing & Ignoring Your Arbitrator
Your arbitrator is the judge of your case, but they’re also an individual with specific preferences and pet peeves. If you fail to perform due diligence on your arbitrator prior to their assignment, it’s still helpful to take the time to learn some specific information before your proceeding. Try to reach out to colleagues who have worked with your arbitrator in the past. Ask them to share their perspective and insights so that you’ll be as informed as possible about what’s to come.
Once witness testimony begins, use what you’ve learned to better understand the arbitrator. Facial expressions and body language can provide useful information about how testimony is being perceived. Take this into consideration over the course of your examination and adjust your behavior accordingly. When you’ve developed an understanding of the individual you’re working with, the next step is making it as easy as possible for them to give you what you’re looking for. For example, an arbitrator who is furiously scribbling notes is clearly paying attention but may be struggling to keep up. You can make things easier for them by slowing down to allow more time for notetaking. This ultimately improves your chances of success because the arbitrator can reference thorough and complete notes during post-hearing analysis.
Refusing to Fold a Losing Hand
In poker – as in arbitrations – there is a subtle art to determining when it’s time to fold. The truth is, no matter how passionately you defend individual arguments, there will be times when it makes sense to concede portions of your claim. If it’s clear that the arbitrator is not moved by your argument, resist the temptation to defend it further. At a certain point, the refusal to yield any portion of your position will negatively affect your credibility and increase exposure.
Before you step into a hearing, try to reframe your thinking. Be prepared to concede your weaker arguments rather than allow opposing counsel to cast doubt on your valid points. Remember: a concession is not necessarily the same thing as a failure. In fact, your arbitrator may even look at you more favorably for having conceded certain claims!
Thanks for following along with our arbitration miniseries! We hope these tips will help you during your next case. If you enjoyed this article, let us know in the comments, and feel free to share it on social media.
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