While the most successful way to impress your arbitrator is with the merits of your case, there are smaller, but important, ways to create a favorable impression of yourself and your client’s case. Below is one arbitrator’s guide to creating an arbitral environment favorable to you and your client. These tips are presented with the important caveat that they represent only one person’s list, based on 30 years of judging and arbitration.
- Do not email your adversary with negative, insulting and arguably inflammatory comments about counsel and your opponent’s case, and send copies of these emails to the arbitrator. While arbitrators likely know that communications between counsel may take on a different tone than communications shared with the arbitrator or comments made in the hearing room, sending such emails to the arbitrator will create a very definite impression of counsel in his or her mind. Sharing communications with the arbitrator is not likely to sway the arbitrator to the correctness of the author’s position more effectively than a carefully crafted, non-confrontational explanation of the client’s position.
- When serving motions and filing briefs with the arbitrator, avoid using sarcasm and hyperbole to make your points. Instead, assume that the arbitrator will read your submissions and conclude that the positions you advance are compelling and deserving of favorable results.
- Do not serve a motion for summary disposition when it is clear that the matter involves a disputed material issue of fact. Where permitted by the rules of the administering arbitral body or agreement of the parties, a motion for summary disposition may be very effective in narrowing issues and educating the arbitrator on the issues. Before serving such a motion, however, consider what reaction the arbitrator may have to the motion. Ask yourself whether the arbitrator will view the motion as one that advances the arbitral goals of efficiency and cost-savings or one that was served for less lofty reasons.