22 Trial Lawyer • Spring 2023 tions where the single witness called was the plaintiff. Generally, this is not enough. While the relaxed rules allow it, I advise against it in most cases. When I have served on panels in arbitrations like this, the panelists tend to agree that the plaintiff’s attorney has not done a good job for their client. Most cases require at least one live medical expert and one good live lay witness. The flipside here is DO NOT ramble on and on and ask many pointless questions and call multiple needless witnesses. The arbitrators will get bored even more quickly than a jury. The panel is almost always comprised of experienced, sophisticated personal injury lawyers who have seen and heard more than you can imagine. Keep your presentation focused on the high points. If you ramble on, you may be received like the Charlie Brown teacher, particularly if the hearing is via Zoom. Most binding arbitrations are completed in one day or less. The same cases would take at least two full days or more to try to a jury. In addition to the requirement of live witnesses, trial involves motions in limine, voir dire, 104 hearings or evidentiary discussions outside of the presence of the jury, as well as longer opening statements and closing arguments. Convenience of Zoom vs. in person Nowadays, post-COVID, at least 95% of binding arbitration hearings are held via Zoom. It is convenient and easy. Exhibits can be screen shared. PowerPoints are even more effective because they liven up an all too often snoozeworthy Zoom hearing. The overwhelming preference seems to be to arbitrate via Zoom even post-pandemic. But you should consider requesting an in-person hearing if it would be more beneficial to your client. I’ve seen elderly clients or those unsophisticated with technology appear very uncomfortable on Zoom. The last thing a nervous party needs layered on top of the anxiety of testifying under oath is to appear via a method they are uncomfortable with. These folks would likely be better served at an inperson hearing. Another thing to consider is would your client present more favorably in person? Is your client particularly charming or do they have a lovely kind aura that can best be sensed in person? Does your client have an impediment resulting from their injuries that is best perceived in person? I once served as a single arbitrator in a case where the plaintiff suffered from a severe speech impediment and tic as a result of his brain injury. Thank goodness for the plaintiff the arbitration was held in person because his struggles were painfully and palpably apparent. I do not think I would have reacted as strongly to his condition if he had testified via Zoom and the award may well have been more modest. Less stress & anxiety For the vast majority of clients, whether the hearing is via Zoom or in person, it’s a heck of a lot less stressful to appear before an arbitrator or panel than at a jury trial. The courtroom alone, along with a judge in a black robe can be intimidating. A Zoom screen or a conference room in a building somewhere is a lot less formal. Testifying before mostly friendly arbitrators is more comfortable than testifying before a judge and twelve jurors, not to mention any stray people in the gallery, which can include an entire class of youngsters shuffling in and out to watch the show. Arbitration is easier on most clients’ already frazzled nerves. No risk of a mistrial I suppose one could move for a mistrial (misarbitration?) in the midst of a binding arbitration proceeding. But I’ve never seen it done. If it was done, I strongly suspect the arbitrator(s) would rule that whatever offending reason formed the basis for the motion would “go to the weight” and that would be the end of that. No risk of appeal A binding arbitration result is final. There is no appeal. No matter what happens at arbitration, the defense is stuck with the result. So too is your client stuck. But for all the reasons discussed throughout this article, it is more likely the defense will be stuck with the short end of the stick. So, it benefits your client that the defense cannot appeal and tie up recovery for many moons, not to mention the risk of reversal. 1/1 or 2/3 factfinders vs. 9/12 Basic math tells us your odds are better in the arbitration setting than at trial. Two-thirds is eight out of twelve, after all. Nine out of twelve is three-fourths, of course, as required by ORCP 59G(2). Unless you have selected a conservative single arbitrator, your chances of convincing one person are better than your chances of convincing nine. If you have a friendly swing arbitrator, your chances of convincing two out of three people are far better than your chances of convincing at least nine jurors. Plus, the beauty of the three-arbitrator panel is that the swing is king. No single juror has the power to declare the result like a swing arbitrator does. This leads to the topic of the importance of careful swing arbitrator selection. It is simply paramount. The swing is the deciding vote. And that vote is final and not subject to appeal, as discussed above. When you select your arbitrator, you should ask them to run any potential swing names by you before agreeing to one. This way you can vet out anyone you know to be too conservative or defense-oriented or someone you may have had a bad experience with. You can also vet out anyone who may be unsympathetic to your client. However, you should seriously consider deferring to your arbitrator regarding swing selection, as long as the swing is not objectionable Arbitration vs. Trial Continued from p 21
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