B. Is Arbitration Right for the Issues in Your Case?

Every case is different and must be judged on its own merit but some categorization may be helpful to foster thought about your case.  For expample, you may find arbitration to be worth considering in the following cases.

1. Cases Involving Specialized Knowledge Arbitration is well-suited for cases involving specialized knowledge that might be confusing to a jury. As a result of their training and experience, arbitrators are better equipped to understand and decide complex cases with more predictability. Indeed, the arbitration movement started when various industries began relying on panels of intra-industry experts to resolve disputes. Arbitration is rooted in the idea that a select group of decision-makers with specialized knowledge about a particular trade would be better informed and more reliable than a lay jury. For this reason, arbitration is encouraged in some specialized areas of law, such as internal law firm disputes, domestic litigation, and international commerce. Arbitrators can digest and decide complex information—such as medical, forensic, or accident reconstruction—much quicker than a jury. This is particularly true when there are several confusing or specialized issues in the same case.

2. Cases with Extensive Expert Testimony Arbitration can save costs by reducing expert witness’s length of testimony or by eliminating the need for their appearance. At arbitration you may be able to informally present an expert’s letter or document informally, accomplishing what at trial might require hours of expert testimony.

3. Cases Riddled with Juicy but Inadmissible Evidence Motions in limine or other evidentiary mechanisms to screen or filter prejudicial evidence are virtually nonexistent at arbitration. You can ask the panel to prohibit evidence from being admitted, but this will only serve to highlight its importance and will likely be unsuccessful. In these cases, consider creating some agreement with opposing counsel about what types of exhibits or testimony can be used at arbitration. Alternatively, you may be better served trying the case to gain the benefits of motions in limine, the rules of evidence, and traditional rulings on such matters. None of these protections will be afforded to your client at arbitration, because there are virtually no rules about what can be produced and none of the traditional rules of evidence apply. Accordingly, your arguments center on the weight of evidence and not admissibility. Depending on the specific facts of your case, the lax evidentiary standards can work to your advantage or disadvantage.

4. Cases in Which You Want More Certainty on Causation Arbitration can lead to more predictable outcomes in certain UM/UIM cases, such as significant back injury cases. Back cases often involve complicated evidentiary or causation issues where the victim may have an extensive history of back problems or prior accidents. Arbitrators familiar with these issues may be able to quickly identify and eliminate unimportant medical events. Further, arbitrators may also apply the law on peculiar susceptibility more reliably. Jurors, by contrast, might get lost in a client’s prior medical records and lose track of what is important. Arbitrators are familiar with proximate cause, aggravation, and activation injury concepts; jurors may get confused about these concepts or focus on irrelevant matters that may cause them to rule against you on proximate cause.

5. Cases in Which You Want More Certainty on Damages Arbitration may lead to more predictable but less dramatic outcomes. As a general rule, arbitration awards are more likely to cluster in the middle of a bell curve of possible outcomes, whereas jury verdicts are more likely to deviate, perhaps with significant outliers. Notwithstanding an arbitrator’s familiarity with valuing cases, one additional factor increasing certainty is that arbitrators often know each other and the lawyers. Accordingly, arbitrators are more willing “to go along to get along,” which may lead to split-the-difference outcomes, even in cases where the lawyers have taken polar-opposite positions.

6. Cases in Which You Want to Swing for the Fences If you think your case may have great upside potential, you may be better off with a jury. Unlike arbitrators, who typically have similar training and experience with evaluating cases, jurors have diverse backgrounds and no experience valuing cases. Jurors will be unaware of how much compensation routinely gets paid in similar cases, and they will be unaware of the value of your case; they will be looking to you and the other lawyers for clues. If you are effective in educating the jury about your case’s value, you can obtain jury verdicts that far exceed arbitration awards. This is particularly true when arguing for general damages using methodologies like those discussed by David Ball in his excellent book Ball on Damages. In one case, jurors requested calculators and pads and painstakingly applied value factors to each suggested item and sub-item of non-economic harm. The jurors did this for days before rendering a verdict that far exceeded anything that could have been expected at arbitration. It is hard to imagine a panel of experienced arbitrators following such a paradigm, despite your strenuous efforts to persuade them so.

C. There are also Logistical Considerations to consider, such as the following.

1. Time Arbitration saves time. Every aspect of arbitration is quicker than litigation. Arbitration hearings typically last hours; trials last days. Although arbitration offers no formal discovery process, exchanging information prior to arbitration is almost always quicker than traditional discovery at trial. Further, arbitration agreements provide other streamlined processes. For instance, parties often agree to admit essential documentary evidence, such as medical records in an injury case, without requiring a doctor to testify or any need for foundation or authentication.

2. Costs Using medical records or written medical opinions in lieu of requiring live or deposed expert testimony saves time and money. From an economic perspective, the expense of deposing experts or obtaining live expert testimony will almost always be more expensive than the cost of getting a letter or narrative report from an expert. This approach is not without its drawbacks, however. When you present a document to the arbitration panel, you are able to provide accompanying commentary. In such circumstances, you can assert certain implications that flow from the document, tailoring the medical evidence to fit your argument. Of course, sauce for the goose is sauce for the gander, and you can expect your opponent to present medical documents that support her argument, accompanied by her own spin on what those documents mean for the case. In the end, you will need to ascertain whether your documents and commentary will be stronger than your opponent’s, and then compare that to the efficacy of live or deposition testimony from an expert.

3. Creative Solutions that Save Time or Money

In cases where the parties believe expert testimony is indispensable, there are opportunities to be creative. The effort of doing both a discovery and a de bene esse deposition can be avoided if the parties agree to meet or depose the doctor once, rather than twice, and then memorialize the doctor’s testimony in a writing or brief video. During this meeting or deposition, each party can ask the expert all the questions necessary to preserve the record and lay a foundation. Then, the parties can memorialize the testimony they wish to present to the arbitrators in one of three ways: (1) in a transcript by court reporter, (2) by videotape, or (3) in a letter or other writing that the expert executes or signs. The parties can agree to allow each side the benefit of leading questions that cut to the chase and present only what is relevant. This saves everyone from listening to qualifications, foundation testimony, and other formalities that are unnecessary at arbitration.

Other creative techniques that may save time and money include pre-arbitration devices, such as arbitration agreements, stipulations, or simple handshake agreements. These sorts of pre-arbitration devices can promote information exchange, eliminate repetition, and remove procedural hurdles. Keep in mind that there are few, if any, pre-hearing requirements concerning the exchange of exhibits—unlike those during a pre-trial conference order—so you will want to employ one of these methods to avoid surprises—unless, of course, surprise would be advantageous.

4. Certainty

Unlike superior court “shot gun” calendars that are unpredictable, arbitrations are typically scheduled well in advance and on days when the parties and their attorneys are certain to be available. Barring an emergency, the parties will know exactly when their case will be heard. The parties have more control over who will hear and decide their case. Regardless of the means by which arbitrators are chosen, the parties always have some input in their selection; however, the extent of that input will vary by the method of selection. Unlike at a trial, arbitration allows you to know well in advance who will be deciding your case. This affords you an opportunity to discover background information that may serve helpful. Informal scouting by reaching out to other lawyers should provide you with a general sense of the arbitrator. In fact, this type of scouting may yield information that can be helpful to your specific case. For instance, one you may discover that one of the proposed arbitrators rides a motorcycle, or enjoys a drink now and then, or has personal experience with a particular type of injury. This knowledge will help you choose the right arbitrator for your case, or at least help you avoid the wrong one. The finality of arbitration promotes certainty for both parties. Generally, arbitration awards are final and do not provide a right to appeal. Arbitration awards are difficult to vacate, even if they are unfavorable, irrational, or arbitrary. Accordingly, both parties can expect closure. Of course, this double-edged sword cuts both ways: when the result is good, you can rest assured that the award will withstand attack; when it is not, however, you are left with few remedies for redress.

5. Privacy

Unlike civil trials, which are matters of public record, arbitration hearings can be kept private. Results can be deemed confidential and protected by agreement of the parties. This might be attractive to parties wishing to avoid having publicized their mistakes or the amount of the recovery. 6. Process There are few laws that govern arbitration procedures. The standard policy provides that “arbitration will be subject to the usual rules of procedure and evidence in such County and State” where the insured lives. On the state level, the Revised Uniform Arbitration Act governs; on the federal level, the Federal Arbitration Act does. Reviewing these statutes will provide a foundation for understanding the procedural aspects of arbitration.

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