How not to screw up your case in arbitration, part one

A fundamental idea embraced by our culture is that credit should be given to whom credit is due. Whole areas of the law, such as copyright, patent, and trademark are built on this idea. Failure is a different story. The famous saying attributed to the late President John F. Kennedy, "Victory has a thousand fathers, but defeat is an orphan," rings true precisely because nobody wants to take credit for failure.

Which brings us to a question often posed by advocates, HR analysts, and union business representatives:

Q. What's the secret to winning my case in arbitration?

A. There are no secrets to winning or losing; it all depends on the merits of the case. Without knowing more about the particular case, we can't help much. Besides, as every lawyer knows, no outcome can be guaranteed, whether the parties are before an arbitrator or a judge and jury. But we can offer some useful answers to a better question: How can I not screw up my case? That's a goal worth shooting for.

With thanks to our arbitrator colleagues Bob Bergeson, Juan Carlos Gonzalez, and Professor Jan Stiglitz, each of whom has addressed this subject, we can offer at least 10 strategies not to follow in arbitration. The 10 strategies discussed here are adapted from a presentation frequently given by Kathy Fragnoli at labor-mangement conferences; the examples that follow are taken from cases heard by Chris Cameron during his practice as an arbitrator for 28 years. Given the length of the list, we'll offer five weak strategies to avoid here, with a focus on opening statements. Then we'll offer five more weak strategies to avoid in our next column.

Weak strategy #1: Failing to offer a short and sweet theory of your case. The first step on the road to losing is not being able to summarize in a few sentences what the case is about and why your client should win. (Some arbitrators say you should do this in a few paragraphs; we say the shorter, the better). An advocate who can't be short and sweet has either lots of work to do or has a real loser on her hands. After all, if counsel who knows the record in all its glory can't get straight to the point, then the arbitrator shouldn't be expected to.

Let's take a discharge case. During the middle of the lockdown, one of us heard an opening statement from a lawyer for an employee, who also happened to be a supervisor, that went like this:

"Mr. Arbitrator, this case is about correcting an injustice. We are asking you to find that a supervisor with 32 years of service, somebody who was called a 'great asset' to the employer, should have been granted a disability accommodation. The accommodation sought was being excused from performing on-call duty. The evidence will show that on-call duty was not an essential function of the supervisor's job because it wasn't listed in the official job description, because on-call duty is voluntary rather than mandatory for supervisors, and because there is no past practice of requiring supervisors to perform on-call duty."

It probably took a couple of hours to distill the case into this opening statement, but it was worth it. The arbitrator learned everything that one needed to know in four sentences: what the case was about, what the key evidence would show, and why anyone should care. When the cited evidence was produced, there was no choice but to rule for the supervisor.

In a more complex case, an advocate would be well-advised to begin by sharing some background, such as the industry nuances at play, before getting into what the case is all about. Complex cases in the aviation, energy, intellectual property, or maritime industries come to mind.

Weak strategy #2: Not anticipating the opponent's theory of the case. The flip side of knowing and being able to summarize your own theory of the case is being able to do the same for the other side. The old adage, "There are two sides to every story," isn't merely a cliché in arbitration - it's something you have to plan for.

Let's take a contract dispute. Recently, we have heard a number of complex cases involving nurses and other essential workers. In one of those cases, the nurses' union had filed a grievance charging the employer with having cheated a cohort of recent hires out of a pay hike by placing them on the wrong step of the negotiated wage scale. Counsel for the union opened first. With one exception, he was careful and thorough. He began with some background describing how nurses are "precepted," or trained to work on the job right out of nursing school. Union counsel then proceeded to explain the wage scale, the contract language, the bargaining history, and other details.

Counsel for the employer went next. She responded to this effect:

"Mr. Arbitrator, I want to thank counsel for his comprehensive summary of how the wage scale works. Unfortunately for his client, the workings of the wage scale are irrelevant. Under the collective bargaining agreement, the grievance must be filed within 20 calendar days of the day on which the dispute arises, or the grievance is 'null and void.' Those are the words of the contract, 'null and void.' It is undisputed that this grievance arose on January 1. Yet the union waited until the middle of May to file it. That's a delay of five-and-a-half months. The employer raised this untimeliness at every step in the grievance procedure - a fact that counsel conveniently ignored in his opening statement. Therefore, the grievance was time-barred."

At nine sentences, the employer's opening statement ran a bit longer, but it was effective just the same. It not only highlighted the employer's theory of the case but also revealed the union's failure to anticipate that theory. The grievance was untimely; the employer prevailed.

Weak strategy #3: Overstating one's case. An old adage governing the customer service industry advises, "Under-promise and over-perform." The same adage applies to arbitration. An advocate should not promise more than she can deliver. During a hearing, witnesses are not the only participants whose credibility is on the line; the advocate's credibility is on the line too. Most arbitrators will hold advocates to their promises. An advocate who over-promises and under-delivers cannot expect to be given the benefit of the doubt, much less viewed as persuasive.

A police case illustrates the point. An officer was discharged for conducting an illegal search of the home of the wrong suspect. It was a case of mistaken identity, and the circumstances suggested that the mistake, although unfortunate, was reasonable. But the opening statement delivered by the officer's lawyer over-promised. According to the opening statement, the arbitrator was going to hear testimony by the officer admitting to "mistakes." But the arbitrator also was going to hear evidence that his search of the home was limited to a "protective sweep" to find other suspects; that he had a "clean" work record; and that the officer was the victim of a vendetta by the chief of police, who had wanted him fired over a separate incident. Then the lawyer under-delivered. The officer denied making any mistakes; body-worn video showed him searching dresser drawers and the clothes hamper for evidence rather than people; his "clean" record was muddied by prior discipline for pointing his service revolver at another officer; and the so-called vendetta was seven years old. The discharge was upheld.

The lesson: If your case is strong, then say so and follow up with the proof. If your case is weak, then set a lower bar and be sure to clear it, because over-promising won't make the case any stronger.

Weak strategy #4: Deferring the opening statement. By now it should be obvious that the opening statement plays a critical role in setting the tone, not to mention the arbitrator's expectations, for each side's case-in-chief. Deferring it is a missed opportunity to help the arbitrator see the forest for the trees of the evidentiary details to come; a missed opportunity to counteract the narrative in the other side's opening statement; and a hint suggesting that respondent's counsel is not quite prepared to go forward.

In our view, it is a mistake bordering on malpractice for respondent's counsel to put off the opening statement. By the time the opening statement finally is heard, the charging party will have enjoyed free reign unilaterally to set the tone as well as the arbitrator's expectations.

In New York, one of our respected arbitrator colleagues believes the opening statement to be so important that he will not permit anybody to defer it. His practice, following opening statements, is to take the advocates into the hallway (or the breakout room, in a videoconference hearing) to conduct settlement discussions. He cannot effectively do this unless he first has heard from both sides. So he is insistent.

In California, most arbitrators are more laid back. Both of us will let you decide whether to open now or later; it's a matter of choice. Unfortunately, in my experience, respondents often make the wrong choice. Whatever reasons may support deferral in a court of law - such as not wanting to overwhelm the judge or jury, or wanting to make sure the charging party is "put to its proof" - may not apply in arbitration. A hearing is neither a movie nor a novel; the arbitrator is not interested in munching popcorn while the drama unfolds, or waiting until the last page to learn the desired outcome. Most of us want to know from the start - that is, right now - how each side expects the story to end.

Weak strategy #5: Failing to summarize key authorities, facts, and arguments in the closing statement. If the opening statement plays a critical role in setting tone and expectations, then the closing statement plays the same role in wrapping up the case. Here is the advocate's chance to sew up the crazy-quilt of material presented at the hearing by organizing it, then advising how and why the party's theory of the case has been fleshed out and the expectations set for the arbitrator have been met.

For most parties, the question is not whether to offer closing argument, but whether to do so by written brief. Think twice before asking for or agreeing to closing argument by oral presentation. Consider an advocate who has just presented what she believes to be a winning case based on the testimony, documents, and applicable authorities. A court reporter has taken down every word spoken at the hearing. Why not order the transcript and write a thorough closing brief? For some clients, the added expense of purchasing the transcript is reason enough.

Of course, the client is always right, and if the client places a premium on saving money, then that's the way it goes. But a prudent advocate has a duty to weigh in on whether avoiding a relatively minor expense is worth the risk of missing something critical by making an off-the-cuff presentation. After all, oral closing argument must be prepared on the spot and under time pressure. By contrast, a written brief can be prepared over several weeks, after the transcript comes in. And if necessary, the time to file the brief can be extended; most arbitrators will grant a reasonable extension, should the other side oppose it. Oral argument admits of neither possibility.