The point here is that you need to slow down your examination so that the arbitrators have sufficient time to reach for the appropriate exhibit book and find the exhibit in question. Arbitrators could instruct counsel to slow down, but you should ensure that this is not necessary by visually checking to make sure the panel has located the relevant exhibit before going forward with direct or cross-examination. It is permissible to ask the arbitrators if they would like you or your associate to locate an exhibit. If your panel skews to an older demographic, they may appreciate the offer.
The bottom line is giving the panel time to find the exhibits throughout the hearing can pay off during deliberation when the arbitrators' notes have completely registered the points you are trying to make with the witness.
TIP 18: DO THE MATH ON DAMAGES
If you represent the claimant, at a minimum, provide the panel with a calculation of the damages your client is seeking. Go the extra step and provide alternative models assuming that the panel will accept certain arguments of the other side. If you represent the respondent and are challenging the amount of the claimant's damages, provide a detailed calculation of your own showing errors in the claimant's calculation and your client's view of the damages involved. Whoever you represent, state the assumptions on which your calculation is based. Total all the columns. In other words, do the arbitrators' work for them. Of course, the panel will make its own calculations. But if you don't provide your own, you might not get the results you want. You have to make the panel aware of what your client wants and why. In sum, do the sums.
TIP 19: MAKE SURE YOUR WITNESSES ARE ON THE SAME PAGE AS YOU
Most lawyer construction arbitrators have a general idea of what construction terms mean. Arbitrators who are construction professionals (e.g., engineers, architects, general contractors) usually know the nuances of these terms and how the meaning may vary in different circumstances. In general, arbitrators who are lawyers will doubt the credibility of any witness who defines a construction term differently from the way they do, while arbitrators who are construction professionals will recognize which witness is off the mark.
Many hours have been spent arbitrating issues involving the interpretation of construction terms. You have to know what something is in order to determine who was responsible for preparing, making or installing it, what it must include, when it should be prepared, how it must be certified, and related issues. For example, you may think a "screed" is a piece of wood used to align newly poured concrete. But this definition raises many questions. Could a screed be made of something else? Does aligning mean leveling? What does leveling mean? Bringing slab surfaces to proper grade? Who is responsible for doing the leveling?
All you can do as counsel is go over the meaning of terms with your witness and make sure that both of you are in agreement on the definition and the various questions that will inevitably arise from that definition.
TIP 20: "CROSSING" EXPERTS
Highly qualified experts are well prepared for the hearing. They have reviewed all the necessary documents, been to the project site and talked to the project manager, and present to the panel exactly the opinion they were hired to present (notwithstanding that experts are ethically bound to present unbiased testimony).
Most attorneys have difficulty cross-examining a highly qualified construction expert because of the expert's depth of knowledge and experience accumulated over years of specialization. The wisest (and most costly) approach is to have your expert present during the direct examination of the opposing expert in order to help you prepare questions for your cross.
Don't risk a poor cross of an expert because it just provides an opportunity for the expert to reinforce the adversary's position. Sometimes, you are better off doing the minimum and relying on your own expert. But if you do cross, never belabor it. Make your point and then move on. And never ask a question you don't know the answer to. (This also applies to your own witness.)
TIP 21: WHEN TO MAKE BEST POINTS
Make your most telling points when everyone is most alert-at the start of the day, right after breaks, and after lunch. Arbitrators are supposed to be attentive 100% of the time, but in reality their energy flags just like most people. Also, even though they try to concentrate, minds can wander when the testimony is dull. I once spotted an arbitrator checking e-mail on his lap top during a particularly tedious examination. I subtly embarrassed him into stopping, but it does show how one's attention can drift.