One way to gain insight into how to most effectively persuade a decisionmaker is to switch roles and to examine the process from the other point of view. In litigation, for example, by testifying as a witness, a trial lawyer can experience first hand how truly irresistible the impulse can be to volunteer information. A trial lawyer serving on a jury may come away from the experience with a new approach to trying cases. Sitting on a panel of arbitrators through trial and award in a complex case provides a unique perspective into what is persuasive in arbitration and what is not. When the panel includes experienced retired trial judges, the insights may prove all the more valuable. The following is a compilation of points learned by attorneys/arbitrators who have served on panels with retired judges in IP and other complex cases.
An Arbitration is Not A Jury Trial
A flashy presentation, designed to appeal to the predispositions of jurors does not work as well in arbitration. Arbitrators have been "around the block," and are often selected precisely because of their deep experience in adjudicating the type of dispute presented. For example, an experienced patent trial lawyer or retired federal district court judge will be unimpressed by an over emphasis on alleged copying in a patent case, except to the extent it is relevant to a theory being presented. Little is to be gained before an experienced panel in taking several minutes to recite an expert’s long and impressive pedigree—at least where his/her qualifications to testify are not in dispute. Judges and experienced lawyers have been there. They know the tricks and are unlikely to be influenced (at least not positively) by such extraneous matters in rendering an award. You will score more points by sticking to and emphasizing what is truly important and relevant to the issues being decided. The arbitrators need help in evaluating your case to allow them to reach a reasoned award based on a thorough understanding of the facts. Help them learn the facts; don't try and "snow" them. Remember, the panel is generally not constrained by the rules of evidence. Their goal is to sort out the true facts. They will be irritated by gimmicks and diversions.
Advocates in arbitration must break the habit of making an argument or introducing evidence "for the record" or to "lay a foundation." Unless the parties have agreed to an appellate tribunal, there will be no review of the record or other second guessing of the arbitrators’ evidentiary rulings. For the same reason, it is rarely a good idea to object to testimony or evidence in arbitration unless you have a good reason for doing so. Being right on the law of evidence is usually not a good reason. In the majority of cases, no matter how valid your evidentiary point, the panel will simply accept the evidence, allow it to be admitted and note that your objection goes to its weight. Occasionally, an objection can serve to highlight that a given piece of evidence or testimony should be given little weight and a persuasive objection can drive home the lack of reliability for the panel. Most often, however, an objection will be viewed as a distraction by the panel especially when the testimony is not particularly significant. Worse, if the testimony hurts, an objection may only further emphasize the damage. It is very unlikely to keep it out.
But Arbitrators Are Not Automatons
On the other hand, arbitrators are human and like jurors (and judges) need to be kept interested to be most attentive. Graphics can be effective. Arbitrators are visual learners like the rest of us. Stay away from needless flash or sleek presentations, which will just distract and not help persuade the panel. But keep the panel awake. The degree of difficulty in keeping an arbitrator’s attention, of course, depends on the person involved. But "The Problem of the Sleeping Arbitrator," is not unusual; it is a topic addressed in advance arbitrator training. Panelists are instructed how to discreetly nudge their colleagues at appropriate moments, and if necessary, to raise the issue with the offending (sleepy) arbitrator during a break.
Arbitrators also come with their own pre-existing impressions and predilections. For example, an experienced IP lawyer sitting on a panel with two retired judges in deliberations was surprised when both judges immediately expressed a strong dislike for one of the parties. The dispute was over the use of a domain name where the alleged pornographic activity was not in the record and not relevant to any issue. While the panel issued its award based on the applicable standards, the judges' strong negative predisposition to one side was manifest.
Like jurors, arbitrators may be curious about who is in attendance at the hearing and why they might be there. Consider carefully how many lawyers, clients and experts should appear. A panelist may harbor a (perhaps unconscious) a need to level the playing field by cutting some slack to a party represented by one lawyer if the opponent has a half dozen. A client who comes only for the first day of a three week arbitration will run the risk of living an impression of not caring about the result. (Percipient witnesses who are not party representatives are typically excluded from an arbitration just as they are in trial.)
An arbitration gives the advocate an unparalleled opportunity to shape presentations to be most likely to persuade a given arbitrator. You will often know more about the arbitrator, his or her experiences, strengths and weaknesses, than you would with a typical judge. After all, they have survived a typically rigorous selection process. Further, when there is a panel, you may often be able to determine which of the three arbitrators would be most pivotal to a decision. Focus on what will persuade that key decision-maker and tailor your presentation accordingly.
Arbitration Is Not a Deposition
Too often, the witness examination during an arbitration is not polished but roving. Lawyers sometimes treat an arbitration as they would at a deposition, literally fishing for information in a disorganized fashion from a witness who has not been deposed. The lack of a prehearing deposition is no excuse for such sloppiness. While arbitrators are not jurors, they are influenced by how a witness testifies on cross-examination. Asking an important question without knowing what the answer will be is as inexcusable in arbitration as it is in a jury trial.
Tiptoeing up to a sensitive area and then not asking the ultimate question does not eliminate the risk. Arbitrators are more likely than judges to step in and ask the important questions on their own. If you are afraid that the witness might hurt you in a given area, don’t go near there. As in any other effective cross-examination, examining an arbitration witness can be done with careful, leading questions in areas where the witness should have little or no room to maneuver. This can be done, for example, by sticking with information documented in exhibits. Stay away from impeachment by showing technical inconsistencies. The panel will not be impressed. However, truly effective impeachment can still be powerful. Arbitrators will be impressed and indeed offended if they conclude a witness is being dishonest about a material point.
Arbitration Allows For Flexibility— Use It
The goal of having a more efficient and informed adjudicative process through arbitration can be promoted by tailoring the procedure to fit the specific needs of a dispute. Consider how to present evidence in a more concise form. Use of summary exhibits, tabulating the results of underlying documents or experiments can be an effective way to streamline what would otherwise be a tedious presentation. Remember, an award will not be reversed because of a failure to make an evidentiary record. If the arbitrators accept the summary form of evidence, they will not be second-guessed by a court. If they don’t accept the summary, you can fill the holes as necessary with the underlying evidence.
Arbitrations all too often go on and on and on. A cynic might suggest this is a natural consequence of paying decisionmakers by the hour. Most arbitrators, however, are conscientious about the effective use of time. Many have extremely busy calendars and are very receptive to time limits agreed upon by the parties. A refusal to hear or accept pertinent evidence material to the case is one of the narrow grounds on which a court may vacate an award. Arbitrators may therefore be reluctant to impose strict time limits over a party’s objection.
Another way to streamline adjudication is to split the case into discreet segments. Often there are a series of issues whose relevance is controlled by the determination of a single initial fact. A decision on a key contract term or construction of a key claim term in a patent dispute can streamline or eliminate subsequent issues. Arbitrators have the authority to make adjudications in interim awards before a hearing, either by agreement of the parties on stipulated facts or when the issue is purely a legal one such as interpreting a fully integrated contract term. The mode of presentation of testimony should also be rethought. Often a direct examination can be abbreviated or perhaps even summarized in written form at the hearing. Wait for the cross-examination to identify the truly disputed areas and cover those and only those at length on redirect. Arbitrators will generally be more lenient in allowing a wider scope of redirect examination and should appreciate the brevity of the direct.
Drop All But The Strongest Agreements
The most uniform and strongest impression made on the attorneys/arbitrators surveyed was the over use of unpersuasive and ineffective fall back arguments. We were all taught early on to identify only the strongest and most persuasive arguments, and to jettison losing arguments before the hearing. There seems to be something in the arbitration process, however, that encourages the "even if" alternative points. Credibility of the advocate and witnesses are at a premium in arbitration. Don't undermine that credibility by advancing weak arguments. Do not force your expert witnesses to take one position on noninfringement and the second, contradictory position, to try to advance a fall back invalidity argument. As the advocate, don’t advance five alternative legal reasons why you should win. The strongest one or at most two will suffice. Remember, there is no appellate review; all that matters is how this arbitrator or panel views your case. There is no reason to preserve points for appeal.
Roderick M. Thompson is a partner with Farella Braun + Martel LLP in San Francisco, CA. His practice emphasizes antitrust and intellectual property cases and he serves as an arbitrator and mediator in technology-related controversies.
Farella Braun + Martel was founded in 1962 and maintains offices in San Francisco and St. Helena, California. The firm represents clients throughout the United States and abroad in sophisticated business transactions and high-stakes commercial, civil and criminal litigation.
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.