Use the Arbitrator's Name. Attorneys who refer to the arbitrators by name leave a better impression than those who don't. But don't recognize the name of one and ignore the others. That happened to me in a recent case in which I was one of the "no-name" arbitrators. After a week of this, the other no-name panelist turned to me and said, "Does Mr. Counsel even know we're here?" Now, I can't judge what impact this had on the outcome of the case. But I can honestly say that it didn't affect my decision at all.
Praise to Show Appreciation. Here's something arbitrators rarely tell you: they want you to think that they are sharp. Yes, arbitrators should be devoid of ego and pride. Even suggesting that they are human might seem a sacrilege. But they are. So, when an arbitrator asks you or your witness a question, occasionally take the opportunity to praise him or her by saying, "That's an excellent question Mr. Jones."
TIP 13: MAKE SURE YOUR CLIENT REMAINS PRESENT THROUGHOUT THE HEARING
Your client should be present mentally as well as physically throughout the hearing. Clients who frequently text and answer e-mail on their Blackberry or iPhone or step out of the hearing room to take "important" telephone calls, do not make a good impression on arbitrators.
Your client's presence and attentiveness serves the multiple purpose in showing the panel he cares, developing confidence in the process, and being able to live with the final award.
TIP 14: MAKE A CLEAR OPENING STATEMENT
There are at least three things to remember about the opening statement. As you were taught in law school, never assume anything. When presenting your case, don't assume the panel has read your briefs or recalls the facts and issues from pre-hearing motions. In fact, it pains me to acknowledge that some arbitrators forget what the case is about during the period between the preliminary hearing and the hearing on the merits. When the hearing date arrives, you will have the opportunity to explain the case all over again in your opening statement. A trial lawyer canard states that litigation is the art of reducing the most complex cases to a few simple points that can be constantly repeated until the jury has no choice but to agree. Most panels leave a hearing with an overall sense of the case, not a mastery of every point and counterpoint.
Treat the opening statement as a de novo presentation of each aspect of your case; and keep it short and simple (KISS). Aim for a clear presentation that the arbitrators can follow.
TIP 15. ANTICIPATE WHAT THE PANEL WANTS TO KNOW
Some arbitrators refrain from asking questions during the hearing on the theory that it is counsel's job to present the case. Others are willing to ask questions, but will not do so if it might appear as advocacy for one side. Their abundant ethical caution requires you-the advocate-to be sure the arbitrator has the answers without having to ask any questions. This means you must make sure that there are no missing elements of your client's claims, no gaps in the evidence supporting your case, and sound explanations for bad facts and contrary evidence. If critical documents that are supposed to be kept in the ordinary course of business are missing or only copies are available, you should be prepared to explain why the originals are not there.
TIP 16. OBSERVE THE PANEL
Keep your eyes on the panel. Watch the arbitrators' facial reactions and body language. If you see a questioning brow after a point you just made, you can elaborate or explain in other words. If you see one arbitrator lean over and confer with a colleague on the panel, try to figure out what might be concerning them and respond accordingly. You can even ask the panel if it has any questions.
TIP 17: SLOW DOWN SO THE PANEL CAN KEEP UP
Arbitrators want to keep the proceeding moving forward, but there is a problem with moving too fast in a case involving many exhibits. As your examination gathers steam, the arbitrators are pulling heavy binders off the table, turning to exhibits while they are listening to the testimony, making notes on a pad, a computer, or on the exhibits themselves. When the exhibit references have lots of elements (for example, Respondent's binder 11, tab 15 E, Composite Exhibit 107, page 97), they take more time to find. Often the binders pile up on the table and adjacent chairs. When there is no more space on the table to put them, they need to be reshelved.