David K. Taylor, Bradley Arant Boult Cummings, Nashville, TN
There’s a great argument that lawyer advocacy in an arbitration is more essential than at a trial in court. This post is the eighth of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make in arbitrations, both when I served as counsel and as an arbitrator. Agreeing to arbitrate a dispute, whether in a contract or by agreement, is a serious decision for any business. There are pros and cons to binding arbitration versus trial in a court that go beyond a series of blog posts, but the fact is that when a dispute is arbitrated, finality is the rule: It is very difficult to appeal an arbitration award. In many instances, representing a party in an arbitration requires more due diligence and work than a trial. Great “arbitration” lawyering is therefore essential but sometimes does not happen.
No. 8: Get the Hearing Exhibits Right
While arbitrations are less formal than trials, and the rules of evidence normally do not apply, there are still “paper” exhibits to be introduced through sworn testimony. There can be arbitrations where all exhibits are electronically scanned and pulled up via laptops by all involved, but most of the time exhibits are copied and placed into multiple exhibit books prepared by counsel. Typically, the scheduling order issued by the arbitrator has pre-hearing deadlines for the exchange of all proposed hearing exhibits. Exhibit books are then created, and on the day of the hearing both sides show up with their own set of exhibit books. But this process of each side bringing their own exhibit books is a mistake. It can cause confusion at the hearing because many times there are identical material exhibits that have different exhibit “numbers,” and counsel, the witness and especially the arbitrator are looking around to find the right exhibit book. Why does the “contract” at issue or key letters or emails have to be Exhibit 24 in one side’s exhibit book, but Exhibit 43 in the other side’s exhibit book?
The best way to handle this (and many arbitrators mandate this in the scheduling order) is to have counsel first exchange a “list” of proposed exhibits and then work together (in good faith) to create a “joint” set of exhibit books. There should be an index that can include not just exhibits, but tabs for pre-hearing briefs, summaries of damages, and pictures. A joint exhibit set allows everyone to “sing from the same song sheet” and save time. It is also extremely helpful for counsel to know all of the exhibit numbers in advance to prepare for direct and cross examination, as well as preparing witnesses.
Other mistakes to avoid in exhibit book preparation and presentation include:
- If the arbitration is document intensive and there will be multiple exhibit books, use “binders” that are easy to open and close and try not have so many exhibits jammed into one binder, which can make a binder unwieldy. Err on the side of making more exhibit books.
- Include an index and exhibit list by exhibit number for easy reference, and especially include the dates for emails and letters. This can include exhibits separated by issues, years or even months.
- If there are not “bates” numbers on each page of each exhibit, for exhibits that have multiple pages, such as pictures (which should always be dated), number each page. There is nothing more frustrating to an arbitrator (and witness) than the questioning lawyer asking about a specific document that is “about ¼ of the way in” or around “18 pages from the back,” and delays ensue while everyone scrambles to find that specific document.
- Include some blank exhibit tabs that are numbered, since many times there can be exhibits added during the hearing, such as summaries, demonstrative exhibits, or even post-hearing added exhibits.
- Be sure that at the end of any hearing, when all of the proof has been presented, that all parties, and especially the arbitrator, are on the same page about all exhibits, especially if exhibits have been added. Sometimes there are proposed exhibits that ended up not being used by either side. Consider if those unused exhibits should be removed altogether from the arbitrator’s set.