OTLA Trial Lawyer Fall 2021

18 Trial Lawyer • Fall 2021 with the other side to keep everything running on time and smoothly, the bet- ter your presentation and the happier your panel will be. Be realistic. Everyone needs time to attend to their obligations. Underesti- mating the time necessary for the hearing does no one any good. Never be con- cerned about notifying the arbitrator/ panel if circumstances change and that effects the schedule. The sooner the up- dated information is shared, the easier it is to find solutions that will allow every- one to present their case. Be prepared Spend time preparing your client for the hearing, just as you would for a jury trial. If it’s “live,” then let them know what to expect. Practice direct examina- tion and explain how cross examination works, particularly that leading questions will be directed to them. If you are handling the testimony on Zoom, it’s that much more crucial to practice. Vet the background, the sound quality, light- ing, the witnesses’ clothing, screen view, internet signal quality — all of it. Keep in mind, arbitrators will be listening very closely. It is important they can hear your witness testimony clearly. Practice with the “share screen” func- tion even if you are sending out hard exhibit copies. You don’t want to be intimidated by the technology in the middle of the session, and your wit- nesses need to know what to expect. This is especially important with expert wit- nesses. Work things out in advance Schedule a pre-arbitration conference with the opposing counsel before you submit materials. See if you can jointly submit exhibits such as medical records. Take the time to discuss stipulations the attorneys can agree on as well. Go over your hearing schedule with one another to see if there are adjustments to use the time most efficiently. This joint work can set the tone for the hearing and make it easier for your panel to focus on the issues to be decided instead of the “litigation posture” of the attorneys. Figure out how long your case will take and understand the panel still needs time to deliberate when the case is over. There is nothing worse for a panel than having a matter extend into the evening with no hope of actually getting to de- liberations the same day. The hearing If you anticipate needing any rulings from the panel prior to the start of the hearing, give the swing arbitrator advance notice. One good way to do this is to use your arbitration memorandum to set up your needs in advance. This will also alert the panel to the topic rather than just leaving it for the morning of the arbitration. Plan to provide an outline of your witnesses with estimated time for each person’s testimony, including cross examination. Opposing counsel will need this informa- tion as well to plan their presentation of evidence. Decide if your client will be attending the hearing all day or will only appear for testimony/opening or closing. When your client is present, be sure they remain “on camera” and remain engaged in the hearing. If your client will NOT be ap- pearing for the entire hearing, explain why —do not give the panel the impres- sion your client is not interested in the proceeding. All the courtroom rules ap- ply. Tell your witnesses to be respectful to others, dress appropriately and do not eat or drink, unless invited to do so by the arbitration panel. If you are proceed- ing on Zoom, give your client your phone number to text you questions or concerns. If you are in person, let your client know to pass you a note. Stay serious Often attorneys treat arbitrations as An Arbitrator’s View Continued from p 17