Monthly Archives: May 2021

arbitration hearing mistakes attorneys

Phoenix Arbitration Hearing Mistakes for Attorneys to Avoid

At Phoenix Deposition Services, we’re proud to offer numerous court reporter, court transcription and related services to a number of clients, including attorneys. These include a number of different hearing types that might take place, including arbitration hearings and several others, and we serve as a major resource for many attorneys and their clients in these kinds of hearings, allowing for proper transcription and record-keeping at all times.

As attorneys who have completed many of them are well aware, entering into an arbitration agreement is a huge decision for both the parties involved. It includes the forfeiture of a traditional courtroom trial, and while this does allow for a faster resolution to the case, it leaves more variables in the hands of the arbitrator, plus is often difficult to appeal. For this reason, it’s vital that attorneys entering the arbitration realm be fully prepared for all possible contingencies, plus be aware of their goals and how to achieve them for the client. Here are some of the top tips we can offer attorneys on this theme based on our years of experience in the arbitration hearing world.

Vague Clauses

An arbitration is a contractual agreement, at its core, and that means that there are even risks of making errors before the hearing itself if you’re not careful. Specifically, if you include vague or difficult language in any of the clauses of this agreement, it could lead to months of delays later on down the line while parties dispute the specifics.

Rather, make your arbitration clauses clear and straightforward at all times. These will address how arbitrators will be selected, who is in charge of paying their filing fees, and the kinds of disputes that qualify for this arbitration. In addition, consider how these areas will impact your discovery process, such as phrasing discovery rules to allow for specific records or data.

Perfunctory Arbitrator Approval

One of the most important phases of the arbitration process will be the selection of the arbitrator, and this may have a major impact on the case moving forward. In most cases, this process will be done through either the American Arbitration Association or another ADR group, and this will involve both attorneys being provided with a list of possible arbitrators for the case.

In these situations, it’s vital to take the actual time to pore over this list with great discretion, similar to the way you’d approach voir dire in jury selection. Go through the list and rank your best options based on all the factors available, plus mark those you view as unacceptable. Do everything you can to learn about their history in arbitration, including looking up their past cases to find out how they tend to arrange their arbitrations. If you know a certain arbitrator has a tendency to deny discovery requests, for instance, but your case will involve significant discovery needs, you should move this arbitrator well down your list.

Mishandling Arbitrator

Now, while the advanced research you do on your arbitrator is vital, you won’t learn everything about them based on it. Especially if this is an arbitrator you have not worked with before specifically, you should spend the early parts of the hearing learning their mannerisms, their body language and how they like to communicate – and then using that information to your benefit.

Let’s say, for example, you notice your arbitrator likes to take extensive hand-written notes during the hearing. If you see this, you should plan to slow down your speech just a bit when speaking or asking questions – this will give the arbitrator more time to take detailed notes, and will be sure nothing is missed. While these may seem a bit minuscule, these kinds of little details will often help your case be viewed positively by the arbitrator.

Discovery Phase Mistakes

As those who have been through these cases before are well aware, the next step after arbitrator selection will be the pre-hearing discovery phase. And during this part of the process, it’s absolutely vital to fully understand all the discovery rights you have, plus any limitations placed on you and any other important discovery rules set by the group administering arbitration.

One important note here: Arbitration differs from a traditional trial in a few ways, but primarily in the way civil procedure rules are applied (or not applied, in the case of arbitration). Many of the formal document requests are not required, though there may be certain limits placed on discovery depending on your case. You must know the detailed thresholds here, including refreshing yourself on standard arbitration rules if needed.

Poor Exhibit Prep

Next up after discovery is the exhibits you plan to use during testimony, which still usually refer to physical exhibit “books.” There are several ways these can become complicated if you aren’t prepared, and especially if you aren’t taking the time to coordinate with the opposing party – you might present certain documents as different exhibits, for instance, and you could end up in a situation where the arbitrator is annoyed at both of you for wasting his or her time.

Instead, be sure to communicate properly here. Discuss exhibit numbers ahead of time with opposing counsel, plus prepare joint exhibit books that both parties can go over and approve. This will also make cross-examination far easier during the testimony phase.

For more on mistakes to avoid during arbitration hearings, or to learn about any of our Phoenix court reporters, speak to the staff at Phoenix Deposition Services today.