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Optimizing Your Effectiveness In Employment Arbitration

Posted by attorney William Hartsfield

Pleadings Use your complaint or response to tell your story. Unlike a complaint which a jury may never read, the first thing the arbitrator will read is the demand for arbitration and then the response. Present your story to persuade the arbitrator. It may even be an outline for your opening statement at the hearing. Key Documents Provide the arbitrator with key documents prior to the hearing. This affords the arbitrator an opportunity to review them and have a background for hearing the evidence. By agreeing to a set of key documents, the parties also avoid submitting duplicate exhibits and reduce the time needed for introducing the documents at the hearing. Electronics If you already have material in an electronic format that is searchable, provide it to the arbitrator. Often, it is easier for the arbitrator to search electronically for evidence that s/he recalls. When the arbitrator is trying to recall which exhibit contains particular information, an electronic index of the exhibits is also helpful. If you submit pre-hearing or post-hearing briefs, submit them electronically as well. You want to make it as easy as possible for the arbitrator to use your cases and logic in writing an opinion.

Witnesses Decide which witnesses need to be deposed and which witnesses merely need to be interviewed. Counsel for both parties could agree to jointly interview a witness by telephone. Identify witnesses to present in person, via deposition, via video conference, or via telephone. Determine if the direct testimony of an expert witness can take the form of the expert’s report combined with cross and recross.

Exhibits Seek to agree on most of the arbitration exhibits and organize them for easy access by the arbitrator. Ask the arbitrator whether s/he prefers three-ring binders or spiral binders. Update the arbitrator exhibit binders and exhibit list with the additional exhibits that arise during the course of the hearing. Have enough exhibit binders for the witnesses as well. Just because your opponent will not agree to the admission of most of your exhibits, don’t act in kind. The arbitrator will quickly understand the dynamics when you have agreed to the admission of the bulk of your opponent’s evidence and s/he has objected to most of yours. In general, the arbitrator is likely to admit most of the exhibits offered and give it the weight it is due.

Presentation Aids Timelines can greatly assist the arbitrator in putting events in the proper sequence. Keying the timelines to exhibits will aid them even more. Providing the timeline in an electronic format keyed to your exhibits will be even better. If your facts are organized along a timeline, use both an 8.5" x 11" timeline and a chart. Similarly, if your presentation is based on theories and liability and not a timeline, again prepare both types of demonstrative evidence. If numerous individuals are involved, prepare a list of key witnesses and their roles in the dispute.

Questions While arbitrators will tolerate leading questions, they do take into account the fact that you lead your key fact witness. Do not try to streamline your case so much that you use leading questions in the meat of your fact story. Arbitrators will also generally tolerate compound questions, but again you may hide your facts in asking too many compound questions. Objections Keep in mind that when your opponent asks compound questions, leading questions or starts every question with “Isn’t it true that," the arbitrator, after mentally making an objection to the form, may have to struggle to get to the kernel of fact in the answer. You should be cautious in using objections as you may simply assist your opponent in telling his/her story in a better fashion. Use objections to remind the arbitrator of the weight to give to the evidence. Often, the arbitrator will overrule it. However, when the witness is testifying in a narrative, an objection can be useful to point out that the witness is describing secondhand information.

Arbitrator Questions Provide the arbitrator an opportunity to ask questions. At the end of the hearing, ask if the arbitrator wants briefing on any particular topic.

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