OTLA Trial Lawyer Fall 2021

16 Trial Lawyer • Fall 2021 By Molly Jo Mullen OTLA Guardian A rbitration has always been a useful and attractive option for resolving cases. But the advent of COVID-19 sud- denly made arbitrations more popular. As the courts prioritized pending cases to criminal matters, parties looking for resolutions of civil matters increasingly turned to using arbitration via Zoom. As a result, anecdotally at least, the surge in these remote arbitrations came as a way to protect parties, witnesses, attorneys and arbitrators while still providing clo- sure of pending matters. Attorneys are commended for their creativity and professionalism that allowed zealous representation along with finality. Still, from the arbitrator’s view, there’s always room for improvement. At this moment, about 18 months into the pandemic and the somewhat parallel surge in arbitrations, it seems like a good time to take stock of what works and what might be done better. While arbitration is often seen as a short cut or a time/money savings, don’t allow those benefits to short change your commitment to zealous advocacy of your client. An arbitration panel will have years of collective experience analyzing cases, but that won’t replace your need to present the facts persuasively and highlight the relevant law that applies to your client’s unique case. Tell us your client’s story — and make it good. You want us to get to know your client, find what makes them interesting and share that with us. Materials You begin to make your case with the panel as soon as you send in your sup- porting materials. You should always take the opportunity to write an arbitration memo. It may mirror your opening but the memo allows you to succinctly high- light any legal issues for the panel. For example, if liability is admitted, let the panel know that at the outset. If the issue is a causation issue, explain what the evidence will show and what records support your view of the case. Under- standing what the issues are in the case before viewing the materials, allows the arbitrators to much more efficiently re- view the submissions with an eye toward those areas that will be disputed. Most people (count arbitrators among them) will start at the front of a binder and move through it. Don’t bury the most persuasive materials you have in hundreds of duplicative and marginally relevant medical records. Put the visceral stuff first — the photos, police report, affidavits/declarations. Consider providing a medical record summary — even if it is just to organize what the medical records actually are. For example, your client might refer to treatment by “Dr. Bob” but Dr. Bob’s records are in a tab called “Sunset Fam- ily Medical Practice.” Help the arbitrator understand that Dr. Bob and Sunset Family Medical are one and the same. Don’t waste your first impression on car damage es t imates , 500 pages of sundivided medical records and a list of depositions. If you have declarations/affidavits or expert reports key to your view of the case, make sure they are easy to locate, are well thought out, accurate and help persuade the arbitrator regarding the burden of proof. It should be clear from the dec l arat ion what document s exactly have been reviewed and that the expert is qualified to render an expert opinion. Attach a CV for your expert. It allows Molly Jo Mullen An Arbitrator’s View