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Helping the Tribunal

Sunday, June 01, 2025 11:24 AM | Anonymous
help-153094_1280, Pixabay/OpenClipart-Vectors

Well before the time that the proof in an arbitration is closed, how can counsel help the Tribunal make a well-informed award? What are the best practices? What should be avoided?

What are your thoughts?

Comments

  • Sunday, June 01, 2025 11:53 AM | Louise Barrington
    Write your pleadings with clear references in allegations and arguments to the rule, how it was broken or abused and the law supporting each allegation. Make it easy for the tribunal to follow the logic of your theory of the case and to transpose that into Reasons for their decision.
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    • Monday, June 09, 2025 1:08 PM | Thomas M Haskins
      (1) Ask permission to file a brief limited to the salient issue but not in lieu of closing argument, simultaneously with opposing counsel's brief. (2) Attach the legal authories upon which you rely (note requirement to include adverse rulings if they exist.) (3) Keep brief very succinct.
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  • Sunday, June 01, 2025 11:56 AM | Raoul East Drapeau
    There is a financial aspect to most disputes. I found it helpful if the counsel would think ahead and present their financial evidence in a way that will make it easier for the arbitrators to understand and apply when it comes to write the award.
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  • Sunday, June 01, 2025 12:04 PM | Michelle Harrell
    It is helpful if counsel checks to make sure that all of the exhibits have been properly submitted and that the panel has copies Also, counsel could offer to provide a brief summarizing the facts exhibits and legal arguments that were made. In particular it’s helpful if an evidentiary issue came up that was not substantively addressed to offer to provide Legal analysis. counsel should avoid trying to do the last-minute panic dump on the panel of exhibits, arguments and law.
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  • Sunday, June 01, 2025 12:11 PM | Peter Rundle
    An analytical "decision tree" - akin to a special verdict form - can be a helpful framework in organizing the case presentation. Also, as noted by another comment, a focus on the relief available for each claim and issues of double recovery should be given plenty of attention.
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    • Sunday, June 08, 2025 12:00 AM | Deborah Rothman
      Pete nailed it. In over 20 years as an arbitrator, I don't think I've ever seen a thorough post-hearing analysis of each possible juncture on the decision tree that goes into writing the Award. A discussion of double recovery from all participants would be very helpful.
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  • Sunday, June 01, 2025 12:46 PM | TW
    Do you think it’s ever possible or appropriate for the arbitrators to mandate expert reports?
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  • Sunday, June 01, 2025 1:23 PM | Peter Neumann
    I endorse all of the prior comments. Some further thoughts based on personal experience and observations: (1) Counsel's credibility is paramount. This entails being intellectually honest and legally accurate when articulating arguments in support of a weak position. Do not cite dicta in a manner suggesting it is binding precedent and do not selectively cite portions of statutes and cases to support a proposition that the full authority does not actually support. (2) I'm a big fan of using hot links to authorities portions of the record cited in submissions. This will save the tribunal time and effort.
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  • Sunday, June 01, 2025 3:00 PM | Tuneen Chisolm, Esq. M.S.Ch.E.
    For complex cases I appreciate a joint list of the issues in dispute and a stipulation of facts and issues that are not in dispute, which helps focus hearing time and serves as a roadmap for the award. During the hearing, counsel should avoid soliciting yes or no answers to strings of leading questions to their own witnesses. I want to hear the witnesses actually testify.
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    • Sunday, June 01, 2025 3:19 PM | Rebecca Bowman
      Not only to I agree with all of the comments, I would add a benefit to the "joint list of disputes and stipulations." Oftentimes, the parties have resolved a fair number of issues without even realizing it. As an arbitrator, a couple of years ago, I had a case for which the parties insisted that there were over 200 issues. When I requested a joint spreadsheet showing the issues and a 10-word summary of each party's position, it turned out that there was more agreement than the parties had realized and the list of issues was whittled down to less than 50. That had two positive outcomes. First the parties realized that their dispute was smaller than they thought and immediately became more amenable to resolution. However, the second benefit was more subtle. An arbitrator facing a 50-item dispute just standing there by itself has one instinctive reaction (These folks can't agree about anything), which may differ considerably from knowing the these are the last 50 of 200 issues (These folks have worked hard to resolve this.)
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  • Sunday, June 01, 2025 3:26 PM | Michael Saydah
    In my humble opinion, the best and easiest way to help the tribunal or single arbitrator is reference to the approved jury instructions for each cause of action. I was in-house counsel to an insurance company here in San Diego and the only way to manage the massive number of files was to focus on what plaintiffs had to prove and what defendants had to prove from the approved jury instructions. At my arbitration management conferences today as the arbitrator I tell the parties to use the jury instructions, because I am going to later on. I just completed a Sherman Antitrust arbitration and reference to the jury instructions was pivotal during the decision process.
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  • Sunday, June 01, 2025 4:23 PM | Anonymous
    Best practices:
    1) When appropriate, provide annotated pleadings or references to hearing transcripts and exhibits in post-hearing briefs. Hyperlinked submissions are especially helpful in digital proceedings.
    2) Use clear, well-organized exhibit lists and summaries. Counsel should avoid "document dumps" and instead present curated evidence packages keyed to the core issues.
    3) Develop joint timelines or issue charts with opposing counsel where feasible. This minimizes disputes over basic facts and allows the tribunal to focus on interpretation and legal application.
    Avoid:
    1 ) Particularly in cross-border or multi-jurisdictional disputes, do not assume the tribunal is familiar with all aspects of the governing law. Provide brief, focused authorities, and clarify conflicts of law if they arise.
    2 ) Don’t leave the tribunal to connect the dots. Use hearing time and briefs to explicitly tie factual findings to specific claims or defenses and legal standards.
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  • Sunday, June 01, 2025 5:54 PM | Jill G Okun
    Clearly state what you want as to each claim or defense and provide the facts and law that support that award.
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    • Sunday, June 01, 2025 7:08 PM | Robbie MacPherson
      All comments are very helpful. However, Jill G. Okun’s clear and concise comment is the best advice.
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  • Sunday, June 01, 2025 7:52 PM | Bob Huber
    At the end of the hearing, ask counsel to submit a draft of their "dream award" with their post-hearing briefs. This helps the arbitrator make sure that all claims and isssues are covered in the award..
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  • Monday, June 02, 2025 6:15 AM | Paul Burkhart
    Briefing, bullet points, stipulation of facts in or not in dispute, and summaries have all been helpful to me in the appropriate circumstances. Avoid and ex parte submissions.
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  • Monday, June 02, 2025 8:27 AM | Leslie W Langbein
    I find it immensely helpful to have a party-created chronology of events. Having to wade through a record to try and figure out what happened when and to whom is a colossal waste of time and added arbitral expense. I often ask parties to prepare one.
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    • Tuesday, June 03, 2025 9:03 AM | Greg Bistram
      Agree with most comments and particularly like the comment regarding party preparation of a timeline of significant events in the dispute. To avoid disputes about IDing an event as a breach, I ask each party to do a timeline.
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  • Monday, June 02, 2025 10:30 AM | Robert L. Arrington
    Listen to what the Tribunal is asking for. Make an effort to supply it. If you think the Tribunal is off-base, then politely tell the Arbitrator(s) why.
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  • Tuesday, June 10, 2025 11:32 PM | Chris Helmer
    If the issues are at all complicated or there are a number of them, I think it is a good idea to ask the parties to agree on a list of issues for the arbitration a while before the merits hearing is set, before briefing, exhibits, and a list of witnesses. If they can't agree, then they submit what they agree on and each submits the additional issues they think should be covered. I've seen this smoke out issues that one party wasn't considering and wouldn't have briefed, or that would have been sprung on the arbitrators at the hearing. Also, in cases where this wasn't done and the evidence seemed all over the place, before writing the award I've actually told the parties what issues/theories/claims I was covering in the award and asked them to tell me if I missed anything. I think a dialogue between the arbitrator and counsel on what is really being arbitrated is a good thing.
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