OTLA Trial Lawyer Fall 2021

19 Trial Lawyer • Fall 2021 less than a formal trial. While certainly there can be a somewhat relaxed atmo- sphere, always remember the parties don’t see a difference between a hearing and a trial. In fact, there is research to support the notion parties are more satisfied with the outcome (regardless of who “wins or loses”) if they believe the process was fair and impartial. Formality and adherence to respectful standards of behavior is part of building procedural fairness into a hearing. If you are going to chit chat with attorneys or arbitrators during the pro- ceeding, be sure not to ignore your client or assume they will understand your chummy relationship. As arbitrators, we too should strive to reinforce the concept of procedural fair- ness by introducing ourselves, explaining the process to the parties and making sure we appear authoritative, competent and fair. I let the attorneys know at the outset I will refer to everyone by their last name, regardless of how familiar everyone is with one another. As an example, I have heard arbitrators and attorneys discuss exotic, expensive foreign travel in front of a claimant who was of very modest means. While the topic might seem en- tirely innocuous, the conversation sug- gested the arbitrators and attorneys lived on a “different planet” than the claimant, which undermines the process for the parties. Not to mention, it’s rude and insensitive. As arbitrators, the panel is generally not interested in asking questions to at- tempt to rehabilitate the attorneys nor are we interested in trying the case a second time. It is reasonable, however, to highlight such a concern if you believe your client might perceive an arbitrator might act in an adversarial way. Typi- cally, the swing arbitrator can guide the other arbitrators to avoid such behavior and ask questions that will only help clarify the testimony of a witness or an- swer a key question the panel will want testimony on to decide the case. If this is a concern of yours, feel free to bring it up before the hearing in your pre-hearing matters. That can alert the swing arbitra- tor to the possibility of such conduct by a co-panelist before it happens. Something new From time to time, new issues can arise during the hearing that are impor- tant to the parties and the decision makers. If so, don’t hesitate to raise the need for additional briefing on the mat- ter and request to leave the hearing open. Panel arbitrations in particular, are a claimant’s only opportunity to litigate an issue without the right of an appeal. Arbitration panels are keenly aware of this and want the opportunity to rule correctly. Even if further documents, testimony or briefing is necessary, the panel will err on the side of wanting the information to be presented for consid- eration. Additionally, be aware arbitra- tion panel members are also experienced legal practitioners who can more easily disregard extraneous, irrelevant or preju- dicial information that might taint a jury and result in a mistrial. Rather than rely- ing on the theatrics of an objection with outrage, focus on why the information should not be considered — allow the lead arbitrator or panel time to hear your objection, opposing counsel to be heard and a ruling to be made. It counts In short, each arbitration is a serious matter. Take it seriously. The resulting decision could be life changing for your client. You don’t want it to be wasting time for any of the parties or the panel. I suggest you approach each arbitration the way you would a trial. Prepare profes- sionally, behave professionally, and you will do a better job on behalf of your client. Molly Jo Mullen is the owner of Mullen ADR, handling civil disputes as a mediator and arbitrator state wide. She can be reached at mollyjo@mullenadr.com or 503- 901-6199.