If your commercial dispute will be decided by an arbitrator or a three-person arbitration panel, it's important to do your homework and plan an effective legal strategy.
One of the first steps is to study the list of 15 potential decision-makers, provided by the American Arbitration Association or other similar impartial body. You can strike three of the names on the list, and other side can do the same. Then the association picks the arbitrator from the remaining nine people.
Next, you want to get as much information as possible about these arbitrators, particularly any published decisions. That may help you decide who to strike from the roster. And as any good litigator can tell you, many cases are won or lost in the jury selection process. It is no different in arbitration.
Depending on the nature of the dispute, you may prefer to have a lawyer or it may be to your advantage to go before a different type of professional, such as a banker or engineer. That's an important distinction in preparing the case and planning your arguments. For example, an attorney might be swayed by legal arguments and prior court decisions. On the other hand, a non-lawyer might simply ignore the precedents and focus on the current issues and the technical matters involved in the dispute.
Once you know who will be hearing your case, the next step is to determine the ground rules. Will your presentation be bound by the rules of evidence or will hearsay and opinion be allowed? Will there by any discovery or not? Again, arbitration is a more fluid than civil litigation and you have more options in terms of the process.
Another decision is how quickly you want the arbitrator to hear your case. Can you be prepared in a few weeks or do you need a longer time period? Since an arbitrator often has a fairly clear calendar, that time frame can be fairly flexible.
When preparing the case, consider if you need to bring in expert witnesses. If you have an attorney hearing the matter, you might need the expert. But if the arbitrator is a professional in that field, you might want to adopt a different approach. Let's say you have a construction case being heard by an arbitrator who is a professional engineer. If that arbitrator considers himself an expert on the technical aspects, you may not need to bring in another engineer to support your position since the arbitrator will also be using his technical expertise on the subject matter to decide the case.
Since arbitration is becoming an increasingly popular method for resolving commercial disputes, it's important to understand how to prepare and present these cases. Adopting the right strategy is essential is you hope to achieve a possible outcome.
Jay M. Levy, a member of The Florida Bar since 1976, practices in state and federal court, at both the trial and appellate levels. He is Florida Bar Board Certified in Appellate Practice, and his practice is dedicated to trial and appellate work involving business law, commercial law, employment law, family law and civil rights matters, and trial assistance to other lawyers.
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