As counsel, your odds of success at arbitration (or at trial, for that matter) are greatly enhanced when you prepare, anticipate, and execute.[1] These tips apply whether it be a live arbitration or a virtual one. More will be said on each of these tips below.
Preparation
Any lawyer will tell you that preparation is a key element to success in an arbitration. But what exactly does it mean to be prepared?
Preparation begins with thoroughly familiarizing yourself with the dispute. In addition, it begins with getting to know your client. If your client does not make a credible witness, decide what it will take to make him or her more presentable.
Prepare your client in advance of the arbitration. Make sure your client knows to look and speak to the Arbitral Tribunal rather than to you when giving testimony. Advise your client on his or her appearance, including how to dress for the arbitration. Arrive at the arbitration early, with your client, whether it be in person or online, which will allow them to become oriented and comfortable with the setting.
Keep in mind that an Arbitral Tribunal will often mistake a poorly prepared client for an untruthful client.
Anticipation
It is essential that you familiarize yourself with the other party’s case as well as with the weaknesses of your own case.
Prepare your client for areas of vulnerability. Focus on areas of your client’s testimony or other witnesses’ testimony that are potentially harmful to your case. If there are explanations for inconsistencies, review these with your client. A client who is confronted with an inconsistency for the first time at the arbitration will not know how to respond and may lose credibility with the Arbitral Tribunal.
Instruct your client to agree to something that ought to be accepted, even if it may be harmful to your case. A witness who fights every point will likely not be viewed as credible.
You must anticipate the arguments of opposing counsel. If you raise these arguments on your own before they are made by opposing counsel, this will not only mitigate their impact on the Arbitral Tribunal, but also demonstrate a high level of competence and preparation on your part.
Execution
You must be well prepared and well-versed in your case so you can smoothly deliver your points, lead the client on direct, and skillfully cross-examine adverse witnesses, since you are likely doing this on Zoom or other virtual format, this becomes even more critical.
If you prepare your client and anticipate opposing counsel’s arguments but subsequently do not execute your case well, your likelihood of success at the arbitration will be greatly diminished.
[1] Many of the ideas contained in this newsletter come from an article by Howard J. Kaplan, Esq., “3 Key Components for a Successful Trial or Arbitration – Preparation, Anticipation, Execution”