United States: Personal Insights Into Arbitration And Trial

Last Updated: June 13 2017
Article by Cleve Clinton

For nine years, Tilting the Scales has brought legal issues with a business slant –practical and conversation points. Many who we represent are entrepreneurs who prefer to avoid lawyers and, certainly, the courthouse. Few of our Tilting issues focus upon third party resolution of disputes.

This post discusses my arbitration that dodged the "Top 8 Pitfalls of Arbitration" discussed in Tilting's January 2016 article and attorney insight on the steps of a trial.  For the next several weeks, I will journal about adversarial solutions – whether by arbitration or by trial before the court. Stay tuned.


I represented one of my favorite clients, "Revered", in a lease dispute with "Stormy", the landlord, regarding the method of setting the rental rate for a building in Las Colinas. Stormy argued that an amendment to Revered's lease incorporated by reference a rent floor contained in the original lease. Revered contended that the amendment removed the rent floor. Both Stormy and Revered (1) agreed to arbitrate, (2) in Texas, (3) before the eminently qualified former appellate justice "Honorable",(4) to be heard in an arbitration trial a few months later that resulted in a (5) final, unappealable, opinion.

My team successfully proved that the amendment was ambiguous by arguing that Stormy's interpretation created an amendment that did not amend, rendering it meaningless. Revered's witness also testified that Stormy was laying behind the log during the negotiations and not being transparent with its intentions for the amendment. Earlier this month, Honorable ruled in Revered's favor, agreeing to its interpretation of the amendment and awarding it $275,000 in overpaid rent. Revered advises that the decision will result in several million dollars in savings over the life of the lease.

Trial Before the Court

Even though I'm a trial lawyer, few of my posts actually talk about trials. However, that will change over the next several weeks as I walk you through a hypothetical trial. To set the scene, let's pretend that after hours of preparation by exchanging documents, preparing and deposing fact witnesses and experts, arguing before the Court over which claims and damages have merit and which don't and working through a pre-trial conference with the Judge to tailor what the jury will hear, the attorneys are ready for jury selection.

Jury selection

Determining the selection of a jury depends upon a number of factors, including the nature of the parties, how long the case will take to present the evidence, and even the judge's own procedures. In most cases, the court will empanel between 40 and 50 people for the selection process (jury panel) which usually takes a couple of hours. In high profile cases (such as the O.J. Simpson murder trial), a jury panel of hundreds of potential jurors is not unusual due to the risk that more panel members than usual will have a predisposed opinion based upon media coverage. The larger the jury panel, the longer the jury selection process.

During the jury selection, the court first considers and releases anyone who is ineligible to serve on the jury (for example, under 18 years old or convicted felon). Next, typically the jury panel is asked if they know any of the parties or the lawyers. Then jury selection proceeds based upon the judge's own procedures. Some judges allow the parties to submit written questionnaires to members of the jury panel. Others immediately turn the process over to the lawyers, permitting each side to ask questions of jury panel members. Some judges ask their own questions of the jury panel before permitting the parties follow-up questions. The time allowed for each side to question the jury panel is also within the judge's discretion. Some allow only 20 or 30 minutes; others allow an hour or longer depending on their assessment of the case complexity. The Court can even dictate which jury panel members are questioned. Some allow the parties to question any panel member; others require the parties initially to direct their questions to the first 12 panel members, because, after the members of the jury panel are excused for cause, the first 12 of the remaining jury panel are most likely to be jurors.

After questions of the jury panel are concluded, the Court then proceeds to pick the jury. After excluding potential jurors for cause (the panel member indicated an incurable bias toward one party), the Court then permits each side – separately and confidentially – to exercise preemptory strikes. That is, a side (plaintiff / defendant) can exclude a juror for any reason (such as they don't like the color of the juror's shirt or the book they are reading). The number of preemptory strikes varies depending on the Court. Once the Court dismisses any jurors that were struck by each side, the Court will then seat the jury in numerical order (i.e., the first 12 remaining panel members will be seated on the jury if it is a 12-person jury).

Tilting the Scales in Your Favor

If you elect to have a third party – arbitrator or judge – decide your case, the more that you can know about the process, the players and the implications, the better.

For the next several weeks, please join me as I embark on a hypothetical journey consisting of Court proceedings while offering commentary and insight into the process of a trial.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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