Winning Ways

by  Edward  J. Costello, Jr.

I recently celebrated my 13th anniversary as a full-time neutral. With that much experience under my belt (and you thought it was overeating), I can NOW advise counsel on how to win in arbitration. The formula is simple and foolproof.

• Personally attack the other side. While some lawyers think that arbitrators react negatively to personal attacks, nothing could be further from the truth. Arbitrators do what they do to be entertained. How entertaining is it when counsel are respectful and polite to each other? Your arbitrator will thank you for every unkind word, and might even join in the fun. If nothing else, everyone's attention will be diverted from the merits of the case.
  
  
• Stipulate to nothing. Every arbitrator is compensated according to the time spent on a case. Therefore, no arbitrator wants to hear anything that will actually streamline the proceedings - and lighten the paycheck. Resist the temptation to agree about inconsequential items, like what time the hearing should begin. Never concede a factual point, even if bereft of opposing evidence.
  
  
• Designate exhibits imaginatively. Nothing saves time like having the exhibits marked beforehand, put in order and placed in binders. As saving time has been greatly overrated, help the arbitrator by marking some exhibits with Arabic numerals (but never in order) and others in Roman numerals. And why limit yourself to numerals? Throw in some letters (not in alphabetical order). And don't limit yourself to English. Use letters from the Greek and Cyrillic alphabets, or the occasional "c" with a cedilla under it, whenever you can. Don’t forget Chinese characters: traditional and simplified characters can be intermixed to great effect.
  
  Remember that the presentation of exhibits is as important as the method of designation. Therefore, present some exhibits in a folder, others in a three-ring notebook and the rest in a plastic binder -- all loosely and randomly arranged. This will please even the crustiest arbitrator and ensure the victory you and your client deserve.
  
  
• Don't prepare witnesses. This will ensure that the hearing will be interesting not only to the arbitrator, but to you and your client as well. Think of the excitement in the room when you call a witness whose testimony is known to no one -- not even the witness. This precept also fulfills another arbitration goal: letting people tell their story in their own words. Spontaneity will be the watchword, and testimony that is frequently dull (dare I suggest expert testimony?) will regain the ability to startle and amuse. Think of how much fun cross-examination will become!
  
  
• Reveal nothing about your case until the hearing. This precept is particularly important when the arbitrator asks about the case. Don't be fooled by his feigned interest. Keep him in the dark -- preserve the element of surprise. Knowing little about the case yourself will help, for you can't get blood out of a stone.
  
  
• Address the arbitrator properly. No area of arbitration practice has been the subject of more concern and controversy than how to address the arbitrator. All arbitrators, including some private judges, say they do not wish to be addressed as "your honor." So take them at their word.
  
  An informal survey of my fellow arbitrators found that most liked to be addressed "your lordship" (perhaps an unconscious tribute to John Mortimer's novel "Rumpole of the Bailey"). A close second was "your imperial majesty," runner-up only because it takes longer to say. "Your holiness" was a tight third. Arbitrators who had spent time in the military favored "jawohl, herr general," while the more mystical types preferred "your grace." Somewhat surprisingly, my favorite, "divine and omnipotent one" was a distant 14th.
  
  
• Bring food. Busy arbitrators seldom have a chance to eat a nutritious meal. If it isn't an early morning conference call, it's a marathon mediation session. Lunch is frequently spent returning telephone calls. So it is important to be sure that the arbitrator is well-nourished and, therefore, alert. Alertness being a relative term. So, bring food.
  
  When placing dishes near your arbitrator, try to be seen, but try not to be ostentatious. Tastes vary, so it is important to learn from the arbitrator at the outset about his or her food preferences. (Oatmeal-raisin cookies are my favorites.)