OTLA Trial Lawyer Fall 2021

28 Trial Lawyer • Fall 2021 Driver’s Seat Continued from p 25 requirement for the arbitrator to follow the ORCP in private arbitration. Fortu- nately, ASP rules follow the ORCP for the most part, so I will only need to re- view the few ASP rules that deviate from the ORCP. I once had an arbitration where the defendant prevailed and filed a claim for costs under ORCP 68 after I lost. Because I was familiar with AAA rules, I was able to point out the rules prevent arbitration costs from being shifted to the consumer, preventing a large bill to my client. I have prepared Dave for the hearing, so he knows exactly what to do and how to present himself. I have also prepared the arbitrator by laying out the issues in my arbitration memo, so he knows ex- actly what our claim involves. It is a good idea to submit physical copies of memos, exhibits, relevant statutes and case law in a tabbed binder to make it as easy as possible for the arbitrator to understand your position. If you have adequately laid out your case in the arbitration memo, you can offer to waive the opening state- ment. It is my experience arbitrators generally appreciate waiving openings as long as the case is clearly presented in the memo. For fee shifting cases like Dave’s, it also sends the message you are orga- nized and efficient, which justifies the fees you’re going to ask for. For Dave, all of his mechanic’s reports, Carfax report, and DMV documents all come in with- out any need for foundation. At the close of the hearing, the arbitrator will rarely make the decision on the spot, and can take up to 30 days to issue the final award. If you prevail, don’t forget to re- cord the award in court and convert the arbitration award to a judgment. Final thought Yes, arbitration does not give you the same opportunity of huge verdicts that juries can provide, but remedies are still ava i l abl e in pr i va t e arbi t ra t ion. Especially for someone like Dave, private arbitration provides access to justice that he otherwise would not have had, due to many unrelated factors that prevent him from receiving a remedy from a jury. After all, even people with no jury appeal deserve justice. I wish you the best on your next private arbitration. Young Walgenkim represents consumers in auto dealer fraud and various other con- sumer law issues. Walgenkim is a member of the OTLA Guardians of Civil Justice at the Rising Star level. He is a founding member at Hanson & Walgenkim LLC, 838 Commercial St. NE, Salem, OR 97301. He can be reached at 503-383- 1496 or young@isuecardealers.com. 1 Keep in mind some arbitration clauses impose attorney fees against plaintiffs who file in court prior to going to arbitration. Putting aside the questionable applicability of such an arbitration clause, one should be aware of such language prior to filing the case in court.