TIP 9: ORGANIZE EXHIBIT BOOKS TO MAKE THEM EASIER FOR THE PANEL TO USE7

I sometimes wonder what unfathomable logic goes into the organization of exhibit books. Do the attorneys implement maximum separation of exhibits so that we have to jump from one exhibit book to another with each question to the witness? That's how it often seems. If you hear grousing from the panel with each lift, turn, open, close, and restock of exhibit books, you'll now know why. The goal of organizing exhibit books should be to keep the hearing moving apace. Every time an arbitrator has to locate an exhibit the "apace" becomes a snail's pace and hours are lost over days.

What should you do? Arrange a conference call with your adversary and the panel well in advance of the hearing and ask the panel how they would like the exhibits to be assembled.

My preference is for counsel to prepare a separate exhibit book for the direct questioning and cross-examination of each witness, together with one comprehensive set of exhibits. The advantage is that the exhibits follow the questioning by counsel and the proceedings move along quickly.

Most construction cases involve repeated references to the contract documents. So it is also helpful for counsel to jointly prepare a binder that contains only the key contract documents and amendments. In some cases it might help the panel to have a binder containing all change orders. Finally, there are times when it might be useful to have a separate binder containing key correspondence, letters, e-mails and faxes arranged in chronological order.

While we're on the subject of exhibit books, please keep them at a maximum weight of 10 pounds and never fill them so much that the spine breaks or flipping pages becomes difficult. Panelists should not end up with muscle aches and strains from handling exhibit books. Now if only something could be done about those darn paper cuts.

At the Hearing

TIP 10. SET UP EARLY

Arrive early at the hearing so you can set up systematically. Put everything in order. Searching through files mid-sentence while you are addressing the panel or questioning a witness conveys weakness, disarray and even panic.

TIP 11: BEHAVE PROFESSIONALLY

Here are a number of conduct-related tips. (1) Come to the hearing well groomed and in accepted business attire. This shows respect for the proceedings. (2) Be courteous and respectful to everyone. (3) Do not irritate the panel by making frequent technical objections, rolling your eyes when the panel rules against you, requesting unnecessary changes in the hearing schedule or order of witnesses; or by making noises (e.g., cracking knuckles, taping or clicking pens, chewing gum). (4) Do not strive to control every aspect of the proceeding, or repeatedly challenge the panel's authority, or ignore panel directives. (5) Be polite to your adversary, not obnoxious, aggressive or contentious. (6) Make and refute arguments without personally attacking or disparaging anyone (except outright liars). (7) Ignore insults (which isn't always easy to do). Stay on point. (8) Do not argue with opposing counsel or excoriate him or her during breaks about the futility of their client's case. (9) Address your issues directly to the panel. (10) Maintain objectivity regardless of your affection and empathy for your clients.

TIP 12: ADDRESSING THE PANEL

Appropriate Mode of Address. Use Mr. for a male arbitrator and Ms., Miss or Mrs. for a female arbitrator (as in Mr. or Ms. Levine). An alternative is Mr. Arbitrator or Madame Arbitrator, or Sir or Madame. Another alternative is "the Panel." You can use this term to refer to a single arbitrator or three. The arbitrator is not "Your Honor" as the forum is not a court, although most arbitrators have given up correcting litigants who are accustomed to referring to judges in that manner. The fact is that most panelists won't mind any sincerely proffered respectful honorific.