Ten Basic-Lawyering-Skills Tips for Success in Arbitration Ariana R. Levinson.
-
Upload
esmond-mcbride -
Category
Documents
-
view
213 -
download
0
Transcript of Ten Basic-Lawyering-Skills Tips for Success in Arbitration Ariana R. Levinson.
Ten Basic-Lawyering-Skills Tips for Success in Arbitration
Ariana R. Levinson
1.
• Should you submit a joint issue statement?• Pros:–Clarifies the arbitrator’s jurisdiction at the
outset– Establishes cooperative attitude
• Cons: Miss opportunity to frame the case in a light favorable to your client
1.
• Should you submit a joint issue statement?• Suggestion: No, frame your case favorably at
the outset• Compromise: Request arbitrator to rule on
which issue will govern at the outset
2.• If you proceed second, should you reserve giving your
opening statement until immediately before your case in chief?
• Pros:– Avoid alerting the opposing party to your case– Wait to frame your case until you have heard the opposing
party’s case• Cons:– Miss opportunity to present your case at point the arbitrator
is most likely to remember– Miss opportunity to provide the arbitrator context for the
opposing party’s case
2.
• If you proceed second, should you reserve giving your opening statement until immediately before your case in chief?
• Suggestion: No, use the opportunity to push your affirmative case
3.
• Should you rely on testimony in the opening statement from a witness who may not appear?
• Pros:–Makes use of favorable evidence that is likely to
be presented– Avoids later confusion when evidence not
discussed in opening statement is presented • Cons: Risks overstating the case in event the
witness does not appear
3.
• Should you rely on testimony in the opening statement from a witness who may not appear?
• Suggestion: No, don’t risk undermining your credibility
4. Should you argue in the opening statement?
Pros:• Provides favorable
characterization of the facts at the outset
• Provides framework for arguments from the outset
Cons:• Miss opportunity to
tell a good story• Detracts from letting
the arbitrator reach own conclusions from the facts
4.
• Should you argue in the opening statement?• Suggestion: Yes, somewhat, but focus on
the facts
5.• Should you consider using witness statements instead of
live witnesses? • Pros:
– Potentially less time consuming– Memorialized so will not be forgotten by the arbitrator
• Cons:– Miss opportunity to respond to the arbitrator’s questions or
concerns– Miss opportunity to easily convey emotional investment in the
case– No opportunity for cross-examination
• Miss opportunity to point out flaws in the case• Miss opportunity to argue and make connections
5. Should you consider using witness statements instead of live witnesses?
Witness Credibility Not An Issue• Suggestion: Yes, use
the form that best fits your client’s needs
Witness Credibility An Issue• Suggestion: Yes, use
the form that best fits your client’s needs provided the witness statements do not take a summary form
• Compromise: Written direct statements with live cross-examination
6.
• Should you use leading questions on direct examination?
• Pros:– Moves the case along more quickly– Allows you to control the testimony
• Cons:– Does not permit the arbitrator to hear the witness’s story– Does not encourage a focus on facts– The arbitrator may think you are trying to hide facts or
the “true story”
6.
• Should you use leading questions on direct examination?
• Suggestion: No, let the witness tell the story
7.
• Should you try to publish important documents or sections of documents?
• Pros:– Makes it more likely the arbitrator is aware of the
document’s content and critical components – Alerts the arbitrator to the content at a relevant point
in the proceeding• Cons:– May insult the arbitrator’s intelligence– May insinuate you do not trust the arbitrator
7.
• Should you try to publish important documents or sections of documents?
• Suggestion: Yes, place relevant information in context
• Compromise: Arbitrator can read the document with relevant provisions highlighted
8.
• Should you cross-examine? • Pros:– Provides opportunity to argue and make a point– Provides opportunity to learn information from
the other side’s witnesses• Cons: May get unfavorable answer
8.
• Should you cross-examine?• Suggestion: Cross-examine only where it
really matters and only if you can ask “safe” questions, or if it is the rare occasion when you do not care if you receive an unfavorable response
• Compromise: Err on the side of not cross-examining
9. Should you write a closing brief in lieu of an oral closing argument?
Pros:• Easier to include citation to
law• Easier to present complex
ideas• Memorialized so will not be
forgotten by the arbitrator• May permit opportunity for
integrating further creative ideas or critical thinking
Cons:• Time-consuming and fosters
delay• Miss opportunity to respond
to the arbitrator’s questions or concerns
• Miss opportunity to easily convey emotional investment in the case
• For many, miss an opportunity to more easily convey your argument
9. Should you write a closing brief in lieu of an oral closing argument?
Suggestion: No, it is not worth the delay
Compromises: Reduce oral closing argument on transcript
Bring prepared written closing arguments to the proceeding
10.
• Should you describe the opposing party’s argument before rebutting it in a closing brief?
• Pros: Makes clear what arguments you are addressing and that you have rebuttal for each
• Cons: Provides “air time” for the opposing party’s arguments
10.
• Should you describe the opposing party’s argument before rebutting it in a closing brief?
• Suggestion: No, not unless necessary for clarity
Historical Reconstruction
• Time-line• Determinative event• Before• After
Inference Chains
• Strength of Case• Direct examination• Closing argument or brief
Example Inference Chain
Evidence: Another employee routinely brought his firearm to work.Inference 1: The employee would interact with supervisors at work.Inference 2: The supervisors would notice he had a firearm.Conclusion: Supervisors permitted another employee to carry a firearm on company property.
Example Inference Chain
• Another employee routinely brought his firearm to work (fact) ------------
• The employee would interact with supervisors at work (inference) ----------
• The supervisors would notice he had a firearm (inference) -----------------
• Supervisors permitted another employee to carry a firearm on company property (conclusion).
Example Inference Chain
• Another employee routinely brought his firearm to work which suggests that the employee interacted with supervisors who would notice that he had a firearm. Thus, the supervisors permitted another employee to carry a firearm on company property.