A Guide to Effective Arbitration Advocacy from Three Florida Arbitrators

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Approved 1.5 Hrs. FL Bar CLE Credit/1.0 Civil Trial Certification/Course #1303318N until 11/22/2014

Presented by: Richard Lord, A. Michelle Jernigan and George A. Sprinkel IV

June 17, 2013

Published in: Business
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A Guide to Effective Arbitration Advocacy from Three Florida Arbitrators

  1. 1. CompanyLOGOA Guide To EffectiveArbitration AdvocacyGet the Most out of Arbitrationfor Your Clientsare proud to co-sponsorUpchurch Watson White & MaxMediation Groupand
  2. 2. Meet our presentersRichard B. LordShareholderrlord@uww-adr.comA. Michelle JerniganShareholdermjernigan@uww-adr.comGeorge A. SprinkelMediation Counselgsprinkel@uww-adr.comUpchurch Watson White & MaxMediation Groupwww.uww-adr.com© Upchurch Watson White & Max 2
  3. 3. The genesis and historyof arbitration• King Solomon• Philip the Second (337 BC)• England (1224)• Rome (the Middle Ages)• Native Americans© Upchurch Watson White & Max 3
  4. 4. U.S. history• The colonies• The Federal Arbitration Act (1925)• The National Labor Relations Act (1935)• The War Labor Board (around 1945)• The Florida Arbitration Code(1957)© Upchurch Watson White & Max 4
  5. 5. Types of arbitration cases• Consumer• Commercial• Construction• Med Mal• Nursing home• Securities• Med-Arb in class actions• By agreement, court order …• Binding and non-binding© Upchurch Watson White & Max 5
  6. 6. Advantages over litigation (if thearbitration is done correctly)• Costs• Time• Privacy• Finality• Lack of Judicial precedent being set• A more satisfactory process• Expert decision makers© Upchurch Watson White & Max 6
  7. 7. A few words about ‘finality’There are 5 statutory grounds for vacating an award under theFAC:1. When procured by corruption, fraud or other unduemeans2. When there is evidence of partiality, corruption ormisconduct of an arbitrator (prejudice)3. Where arbitrators exceeded their powers4. When there is refusal to postpone a hearing on sufficientcause shown (prejudice) or a refusal to hear materialevidence (prejudice)5. When there is no agreement or provision for arbitration.Grounds for vacating under the FAA is almost identicalwithout No. 5 as a basis.© Upchurch Watson White & Max 7
  8. 8. Arbitration should NOT be allowed to becomeas costly and cumbersome as litigation• Thus the importance of managing the process.The arbitrator(s) must be good managers, andthe advocates must work together to ensure acost effective process for their respective clients.• If your client wants to enjoy the benefits ofarbitration, you should seek a streamlinedapproach and avoid unnecessary discovery,motions and delays.© Upchurch Watson White & Max 8
  9. 9. If you have a choice, do you gowith one or three arbitrators?© Upchurch Watson White & Max 9
  10. 10. The panel• Adds costs• Adds diversity of views• Section 682.05• The agreement may state if the panel’sdecision is to be by majority or unanimous© Upchurch Watson White & Max 10
  11. 11. Going with just one arbitrator© Upchurch Watson White & Max 11
  12. 12. Selecting your arbitrator(s)• What do you look for?© Upchurch Watson White & Max 12
  13. 13. Fairness, management skills, analytical skills,subject matter experience, decisiveness,….© Upchurch Watson White & Max 13
  14. 14. Traits of the effective arbitrationadvocate• There is a direct correlation betweenpreparation and results.• Organization helps you prepare andpresent.© Upchurch Watson White & Max 14
  15. 15. • Being disciplined helpsyou remain focusedand efficient• Being concise helps youmake your pointsTraits of the effective arbitrationadvocate© Upchurch Watson White & Max 15
  16. 16. Traits of the effective arbitrationadvocate• Working cooperatively helps your clientrealize the cost and time savingsarbitration offers.© Upchurch Watson White & Max 16
  17. 17. Don’t over-litigate• Client satisfaction with arbitration isinfluenced by not only the result, but theprocess – too much time, delays, toomuch litigation, and too much expensedrive satisfaction down for most clients. Ifyou want to arbitrate more, don’t becavalier about your client’s pocketbook ortime.© Upchurch Watson White & Max 17
  18. 18. You should narrow the facts• Meet and prepare a “Statement ofStipulated Facts”• Why?Avoids unnecessary testimony andhearing time; let’s the arbitrators focus onwhat they have to discern and decide; andcan aid in the examination of well foundedmotions.© Upchurch Watson White & Max 18
  19. 19. You should narrow the issues• Meet and prepare a “Statement of IssuesNot in Dispute and Issues to Be Decidedby the Arbitrator(s)”. Consider issuerefinement where needed.© Upchurch Watson White & Max 19
  20. 20. Potential stipulations –by no means an exhaustive list• Can the two remaining arbitrators select athird when one withdraws, or can the two whoremain decide the case?• Can witnesses appear telephonically orthrough video-conferencing?• Is there a limit to the number of witnesses?• Is there a limit to the number of depositions,and how long they should last?© Upchurch Watson White & Max 20
  21. 21. Potential stipulations –by no means an exhaustive list• Can all testimony be submitted bytranscript or video?• Will their be one notebook of documentaryevidence submitted about which there isno objection?Be thinking about what will help thearbitrators to do their job and whatwill keep costs down© Upchurch Watson White & Max 21
  22. 22. Paying the arbitrators• By contract, per agreement or order?• Who pays whom, by when andwhat amount?• Be mindful of deposits beingrequired.• Review the engagement letter and calendarall key dates.Be sure to resolve this issue “up front”. If youdon’t, your arbitration may be rescheduled orcanceled.© Upchurch Watson White & Max 22
  23. 23. Scheduling the final hearing• Do you have enough days set aside?• Do you have too many days set aside?• Are you scheduled for non-consecutivedays?• Is it far enough out so all necessarydiscovery, meaningful motions, and otherpreparation can be complete?• Are all clients and witnesses available?© Upchurch Watson White & Max 23
  24. 24. What arbitration law applies – state FACor Federal FAA?FAA applies to transactions involving:• interstate commerce• maritime transactionsFAA supersedes FACMost arbitration provisions will indicatewhich law applies.© Upchurch Watson White & Max 24
  25. 25. What arbitration law applies –state FAC or Federal FAA?• The parties can stipulate that theirdispute is to be governed by eitherthe FAA or the FAC.© Upchurch Watson White & Max 25
  26. 26. Do any rules of evidence apply?What is the “rule of thumb”?• Depends on which procedural rules areapplicable to the process (as an example,CPR has a rule on evidence: “The arbitratorshall determine the admissibility, relevance,and materiality of the evidence offered, andconformity to legal rules of evidence will notapply”).• Depends on the arbitrator – discretion.© Upchurch Watson White & Max 26
  27. 27. Do procedural rules apply?• Review your arbitration clause to see whatapplies and, if you have a choice, knowwhich set of rules would be best for you.© Upchurch Watson White & Max 27
  28. 28. Your submission(s)• Your arbitrator(s) should not have tosearch for a “needle in a haystack”, andredundant or duplicative materials addtime and thus charges.• Coordinate with opposing counsel and beprepared to discuss submissions at astatus conference.© Upchurch Watson White & Max 28
  29. 29. The ‘Chair’ decides?Or does it?• Should any issues be decided by the Chairof the panel on his or her own?Discovery disputes may be suitable for theChair to decide.• Objections to the admissibility of evidence?• Other matters?© Upchurch Watson White & Max 29
  30. 30. The Decision or Award• Your arbitrator may ask for a stipulatedform of decision.• Do you or does your client want or needfindings of fact and conclusions of law?• Limited basis for review / appeal / vacating• Is an attorney’s fee award being sought?© Upchurch Watson White & Max 30
  31. 31. If a fee award is being soughtThe arbitration award must specify the theory under whichthe claimant prevailed, or otherwise clearly indicatewhether the claimant has prevailed on a theory that wouldpermit the trial court to award fees.Moser v Barron Chase Securities, Inc.,783 So.2d 231 (Fla. 2001)Kessler v Chatfield Dean & Co.,794 So.2d 577 (Fla. 2001)© Upchurch Watson White & Max 31
  32. 32. If you mediate the case pendingarbitration• Who is your mediator going to be?• Confidentiality ramifications.• Med-Arb© Upchurch Watson White & Max 32
  33. 33. Impact of the Arbitration ClauseA process that enhances efficiency can bedetailed in the arbitration clause.Don’t leave it to chance with boilerplatelanguage.© Upchurch Watson White & Max 33
  34. 34. “A Guide toEffectiveArbitrationAdvocacy”Florida BarCourse #1303318N1.5 Hrs.GeneralCLE Credits1.0 Civil Trial Daytona Beach  Maitland/Orlando  Jacksonville  Miami  BirminghamRichard B. LordShareholderrlord@uww-adr.comA .Michelle JerniganShareholdermjernigan@uww-adr.comGeorge A. SprinkelMediation Counselgsprinkel@uww-adr.comUpchurch Watson White & MaxMediation Groupuww-adr.comPlease email cklasne@uww-adr.com with questions about course number, Webinar recording, etc. 34
  35. 35. We Invite You to Visit theUpchurch Watson White & Maxwebsitewww.uww-adr.comfor a schedule of upcomingseminars / webinars and to listento our complimentaryrecorded webinars!© Upchurch Watson White & Max 35

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