OTLA Trial Lawyer Fall 2021

17 Trial Lawyer • Fall 2021 the arbitrator to have a better sense of the expert’s qualifications than simply, “I am a board certified orthopedist in pri- vate practice.” Rest assured, if there are Easter eggs buried in your client’s records, one of the arbitrators will find them. Don’t let the arbitrators ask the questions to your cli- ent or expert that you should ask first. Know what’s coming and call them out first in your arbitration memo and explain what they are. You will build credibility as well as diffuse the impact of those potentially harmful records. Preliminary matters Arbitration may be by the agreement of the parties (non-binding court an- nexed arbitration) or by the agreement of the arbitrators already selected by the parties (binding UM/UIM insurance policy language). Arbitrations can be administered through AAA, Arbitration Services of Portland, some other private program or even at the request of the parties who have simply agreed to arbi- trate. Regardless of the source of the arbitration agreement, it is important to understand what rules apply at the out- set. There is the inherent tension between having a matter heard quickly and expe- ditiously but also making sure your case is thoroughly presented and meets the evidentiary standards for burden of proof. While rules of evidence may be more relaxed in arbitration, the burden of proof is not. Because the arbitrator/arbi- tration panel is charged with applying the law to the facts, it is critical that as part of your advocacy, you take the time to educate yourself and your panel on the law that applies to the case at pre-hearing and in your opening statement. If your case calls for a panel of arbitra- tors, keep in mind the collective group will be deciding your case. Basically, this means three people with diverse back- grounds and experience will be hearing your case and then working to find consensus at the end of the hearing in order to reach a decision. This is likely to result in something more like a jury award because there will be differing views of the case. Panels work hard to be unbiased and decide the matter based on the merits. It is not necessary to remind your panel what a “typical jury” might do — the arbitrator’s obligation is to decide the matter based on the facts and merits of the case while applying the requisite legal standard. A “typical jury” will not be in a position to decide legal issues, only facts with jury instructions on how the law applies. Remember, it is your job as an advocate to make it clear to the panel what legal standard you believe applies to the issues in your case. Be sure to research those disputed legal issues and let the panel know your legal basis for your view. Refer to jury instruc- tions — that is the gold standard of legal authority and you should refer to those instructions when presenting your case in chief as well as closing argument. You might even consider submitting key in- structions with your materials. Make scheduling easy Logistics matter a great deal in arbitra- tion. From the arbitrators’ perspective, an inordinate amount of time can be spent just trying to find acceptable hear- ing dates. With potentially 5 different attorney calendars to consider, not to mention parties and witnesses, it is al- ways a great relief when the hearing is actually on the books. If you personally handle your calendar, do your best to respond to communications about sched- uling as promptly as you can. If your staff is tasked with scheduling, direct them to work with the panel to get the hearing scheduled and ask them to speak with you about any roadblocks to scheduling. It can be very frustrating to wait on a response from an assistant who does not have a clear picture of the attorney’s ac- tual schedule. While we are all busy, flexibility is an excellent tool to insure your case can be set up for hearing. Decide where you want to hold the hearing, who will attend in person and who might appear remotely. Let the ar- bitrator/panel know in advance who you intend to call and if there are timing is- sues or other logistics you need to work around with a witness. Of course, include your opposing counsel on logistics as well. The more you can work things out See An Arbitrator’s View 18 While rules of evidence may be more relaxed in arbitration, the burden of proof is not. For best results, plan ahead and take a professional approach.