Chapter 38 Preparing for Arbitration: A Plaintiff Lawyer's View

Transcription

1 Reprinted by permission from How ADR Works, edited by Norman Brand, published by BNA Books, Washington, D.C. Copyright 2002 by The American Bar Association, Chicago, IL, published by BNA Books, Chapter 38 Preparing for Arbitration: A Plaintiff Lawyer's View Laurence S. Moy* I. Introduction 636 II. Preparing the Statement of Claim A. Tell Your Client's Story B. Consider Your Proof C. Build Credibility D. State the Relief Sought E. Listen at Mediation III. Choosing an Arbitrator A. Sources of Information B. Arbitrator Characteristics C. Client Participation in Arbitrator Selection W. Using Arbitrators to Facilitate Discovery A. Discovery Plans B. Arguing Discovery Issues C. Recalcitrance, Reluctance, and In Camera Inspections D. Sanctions V. Prehearing Briefs VI. Should You Use a "Mock" Arbitration? VII. Explaining the Significance of Arbitral Finality VIII. Teaching Your Client to Respond to Questions You Do and Do Not Ask A. The Client's Role B. Arbitrators' Questions C. Opponents' Questions D. Teaching Your. Witness to Talk to the Arbitrator and Respond to Nonverbal Cues *Mr. Moy is a member of the firm of Outten & Golden LLP. 635

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6 640 HOW ADR WORKS CH. 38 through exercising peremptory challenges, exercising for-cause challenges, ranking arbitrators by order of preference, striking names from a list of prepared arbitrators, or agreeing with an adversary on an arbitrator or list of potential arbitrators. Accordingly, the quality of your input into the selection process will be a function of the amount of information you are able to assemble concerning each candidate. Unlike federal court, where information concerning individual judges is widely available in published, comprehensive format, information concerning arbitrators is limited, uneven in quality, and must be gathered from multiple sources. Generally, the entity responsible for administering the arbitration proceeding, the SRO or private ADR organization (such as the American Arbitration Association (AAA) or JAMS/Endispute), will provide some biographical information concerning potential arbitrators. This generally consists of employment and educational background data and a partial history of arbitration awards (for example, previous determinations), which generally provide no conclusions of law, no findings of fact, and little or no reasoning or explanation. Obviously, you must expand this information to gain a clearer picture of which potential arbitrators should be selected and avoided for a: particular case. Immediately upon learning the identities of potential arbitrators, you should seek additional awards from - other sources. The time to respond to the list of potential arbitrators (through peremptory challenges, by ranking potential arbitrators, and so forth) is short, and it will take some time to get decisions. For potential arbitrators with experience in deciding cases concerning securities industry. disputes, Securities Arbitration Commentator, Inc. 2 (SAC) is an excellent source. It unfailingly finds arbitration awards beyond those that are provided by the SRO. Given the limitations of what can be gleaned from biographical information and arbitration awards, information from colleagues who have actually conducted a hearing before an arbitrator who may sit on your panel is critical. You should devote substantial time and energy to seeking that information out. You 1 [Editor's Note: As noted in section I. of this chapter, the author's comments refer specifically to securities industry arbitration and are not necessarily accurate for other employment arbitration.] 2 Information about SAC's services and subscriptions to the Securities Arbitration Commentator may be obtained by valuing (973) , or on the Internet at <

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