OTLA Trial Lawyer Fall 2021

25 Trial Lawyer • Fall 2021 a calendar to choose your proposed arbi- tration date. The whole process from filing to arbitration hearing can be as quick as 3 months. AAA is much slower. After you file your demand for arbitration and pay your arbitration fee, AAA will give the respondent 30 days to pay their fee. If AAA does not receive the fee within 30 days, it will grant a 30-day extension, and possibly a second extension before dis- missing the case. If the claimant does not periodically check in on the status of the respondent’s filings, AAA may not en- force its own deadlines. As a result, your case can sit for months before an arbitra- tor is even assigned. The second benefit of choosing ASP is the ability to select your arbitrator. In AAA, once the parties have paid the ar- bitration fee, AAA will arbitrarily assign an arbitrator to your case without any choice by the parties. On the other hand, ASP will send out a list of five to six proposed arbitrators, allowing each party to cross out two and rank the oth- ers by preference. ASP arbitrators are generally retired Oregon judges and other experienced lawyers in the com- munity, whereas some of AAA’s arbitra- tors are neither. I have had arbitrators who were retired attorneys from another state or were never attorneys at all. Those cases are generally the toughest. Benefits of AAA The main reason you would want to choose AAA is the cost. The entire arbi- tration fee is capped at $200 for the consumer in a consumer dispute and $300 for the employee in an employment dispute. The respondent then has to pick up the remaining costs, including the entire cost of arbitrator compensation. Even if the arbitration clause states that both sides will bear arbitration costs equally, AAA will not deviate from its own fee structure. This means after the claimant files the arbitration, the respon- dent will get a bill of upwards of $3,500 for the filing fee alone. Depending on the size of the defendant, the filing fee itself can be a b i g enough deter- rence to encour- age settlement or get the matter dismissed from arbitration. ASP, on the other hand re- quires each party to pay an equal amount for the entire arbitra- tion process. For my cases , the entire plaintiff’s portion of arbi- t r a t i on co s t s usua l l y come out to $2,000 to $3,000. If the dispute is over a $5,000 car, these costs can be a big barrier to my client’s access to justice. For Dave’s case, I know the dealer is committed to taking the case all the way, so even though the costs are higher, I decide to go with ASP to secure a favor- able arbitrator. Pre-hearing conference After an arbitrator has been assigned, the arbitrator sets a pre-hearing confer- ence. This is where the arbitrator goes over the ground rules for the arbitration hearing. Since this is likely the only hear- ing I will get until the final arbitration hearing, I need to plan ahead of time to figure out how I want the arbitration conducted. Because arbitration is flexi- ble, parties have a significant say on the arbitration process. Dave will need tele- phone or video testimony because he is a difficult person to schedule in-person meetings with. I am free to make this suggestion at the hearing, as well as any other accommodations my client or I will need. You cannot assume court rules will apply in arbitration, especially if your arbitrator is not an attorney or a retired judge. For example, arbitrators some- times will not allow the plaintiff to present rebuttal testimony or make re- buttal arguments, so I have to make sure to ask the arbitrator to allow me to make rebuttal arguments. There are two more things I always request at these hearings. First, because all of my cases require a significant brief- ing for the arbitrator to understand the legal issues involved, I usually request the arbitration memos be submitted two weeks before the arbitration hearing. Second, because my cases all have fee shifting claims, I request the arbitrator schedule a separate hearing on fees after the prevailing party has been determined. Arbitration hearing After the pre-hearing conference, cases in arbitration proceed as any other case. I can send out discovery requests and conduct depositions as usual. Then comes the main arbitration hearing, which is not too different from a bench trial or court annexed arbitration. One thing to remember is, unlike court an- nexed arbitration, there is no necessary See Driver’s Seat p 28 Private arbitration can be a good fit for a dispute over a used car. One of the benefits is the rules of evidence do not apply.