Copyright 1999, The Daily Journal, reprinted with permission of the Colorado Journal.

By Joseph P. McMahon, Jr.

Because clients often turn to arbitration in the hopes of achieving a more prompt and cost-effective resolution, it's important that we all consider how to make the proceedings run more efficiently. There is a lot that legal counsel can do to make life easier for the arbitrator both before, and during, the arbitration hearing.

• Focus on the issues of real conflict. Counsel can do a great deal to arbitration efficiency by focusing on the real issues of the conflict. Research indicates the juries only need to hear of the trial evidence to reach a verdict.. Claimant's counsel can make the arbitration more efficient by focusing on the real conflict, rather than trying to find every possible claim.

• Educate the arbitrator. Use the demand-and-answering statement for this purpose. It's understood that arbitration pleadings are simplified and not governed by the more strict requirements of pleadings. Nevertheless, sometimes the arbitration demand or answering statement is so brief the arbitrator learns little about the dispute. Keeping in mind efficiency, counsel should consider whether the demand-and-answering statements could be sufficiently educational to help the arbitrator better understand the nature of the dispute.

• Use a preliminary hearing to focus. If counsel have developed an effective relationship early in the dispute, they can help the case move through the preliminary stages (information exchange, briefing, prehearing filings) and set dates for an early resolution. Having conferred and cooperated prior to the initial hearing with the arbitrator, the initial hearing or conference can be more efficient. This permits the arbitrator and counsel to set realistic dates for hearing and prehearing actions.

• Use joint exhibits where possible. An evidentiary hearing in an arbitration proceeds faster if counsel have submitted a notebook containing joint exhibits. This makes it easy to find exhibits and reduces confusion as to the identity of the document being discussed by a witness. Moreover, a joint exhibit notebook is a good, continuing reference for the arbitrator.

• Counsel should resolve disputes among themselves. Although most arbitration rules expect limited discovery, the increasingly complex nature of commercial arbitration often requires the exchange of information and, on occasion, depositions. Because arbitration rules are less definitive than the Rules of Civil Procedure regarding discovery, the arbitration process is greatly simplified if counsel can resolve disputes among themselves, rather than bringing discovery disputes to the arbitrator.

• Brief legal issues clearly and early. Most commercial arbitration requires some inquiry into the relationship between the parties, controlling statutes and applicable case authorities. Although most arbitration rules or agreements between the parties do not "require" that the arbitrator strictly follow the controlling law, it is likely the arbitrator or panel will want the input of counsel via briefs. To save time and expense, the arbitrator may request, or counsel may suggest, that briefs be submitted in simplified formal (e.g., outline form or bullet point form) rather than a typical appellate or trial-court brief format.

• Use well-organized pre-hearing filings. Even in relatively simple commercial disputes, parties often submit prehearing filings that may contain exhibits, legal authorities, the identity of witnesses, short summaries of testimony and other material relevant to the hearing. The arbitrator's job is simplified when preheating filings are well-organized and timely filed. This allows some review by the arbitrator prior to the evidentiary hearing. The value of the prehearing filings diminishes substantially if they art submitted just before the hearing.

• Prepare for the final hearing. As with any evidentiary hearing, preparation is important. Often, in small commercial disputes, the arbitration hearing is the first time that many witnesses will have testified. These witnesses are unfamiliar with the basic approaches to testimonial evidence. Simplify the arbitrator's job by briefing the witnesses about basic elements of direct and cross-examination.

• Avoid last-minute procedural disputes. Last-minute disputes between counsel unnecessarily complicate the arbitrator's job. Typical problems include: the tardy filing of a new issue, claim, counterclaim or the late identification of a witness. These problems can be avoided through preparation.

• Develop a concise opening statement. As in court, a good, clear opening presentation by counsel simplifies the arbitrator's task- No matter how skilled the arbitrator, a concise summary of evidence to be presented, its relation to the issues and highlighting key factual matters can help focus the arbitrator's attention and expedite the hearing.

• Organize the flow of witnesses. A continuous flow of testimony and evidence helps achieve the efficiency and economy we hope to find in arbitration, For counsel, that means having your witness "logistics" well-organized, and having a willingness to take witnesses out of order can help insure the flow of evidence and testimony.

• Limit objections. And use objections to instruct the arbitrator about evidentiary issues. Because the arbitration process is generally conducted under relaxed rules of evidence, counsel should limit their use of objections. Bearing in mind the tendency of arbitration to include rather than exclude evidence, objections may be more instructive as to the probative value of evidence than to exclude evidence. Nevertheless, where appropriate and essential, counsel should be prepared to use objections where important issues of relevance, materiality or cumulative nature of evidence are at issue.

• Be clear about the relief the client seeks. Because the ultimate purpose of the process is an arbitration award, counsel should clearly convey to the arbitrator the exact relief sought. The arbitrator's job of drafting an award is greatly simplified when counsel are clear as to exactly what relief is sought by their client and the arbitrator's authority to award such relief Where specific performance or other forms of equitable relief are sought, that need for clarity is paramount.

• Show clearly how damages were calculated. The job of the arbitrator is also simplified when counsel are clear on how they calculated damages. In the event the award is less than the client's full claim, the arbitrator's knowledge of the method of calculation will simplify his or her ability to draft an award for partial damages.

• Develop a good summary argument. A well-organized closing argument focuses the arbitrator on his or her task of drafting an award that resolves all submitted issues and is consistent with the submitted evidence, parties' arbitration agreement and appropriate legal authorities and rules. Assume the arbitrator will promptly turn to consideration of and drafting the arbitral award.

Joseph P. McMahon Jr., can be reached by e-mail at: mail@jpmcmahon.com