I hold a preliminary conference in almost every case. Most preliminary hearings are satisfactorily handled by telephone conference call; in an appropriatecase, an in person hearing will be arranged. I encourage your client/client representative to attend the initial preliminary hearing.
You may expect that in our initial prelimnary hearing, I will:
I I expect that prior to the date of our preliminary hearing, you will have discussed with the other parties:
We will discuss these matters at the initial preliminary hearing. I will enter a Scheduling Order following our initial preliminary hearing. It will usually be labeled Pre-Hearing Order No. 1 and will govern further management of your case.
I expect the parties to have conferred about discovery prior to a preliminary hearing. One of the most attractive features of arbitration is a method of dispute resolution in its general economy as compared to traditional civil litigation. Experience has shown that discovery is ordinarily the single most expensive aspect of litigation While a limited amount of discovery is generally appropriate in arbitrations (unless the parties have expressly restricted discovery by contractual agreement), the amount and nature of appropriate discovery is dependent upon many factors, including the amount in controversy and the issues and claims presented. I encourage all parties to mutually develop a discovery plan appropriate to the case and to cooperate in its implementation.
Please note: No party in an arbitration has a right to discovery unless (1) all parties agree to the discovery; (2) the arbitration agreement, applicable law or pplicable rules (see Rule R-21, AAA Commercial Rules) provide such a right, or (3) I enter an order expressly approving or directing discovery. This includes testimony of a witness "perpetuated" by deposition for later presentation at the arbitration hearing.
The below principles will be followed in the absence of an agreement or applicalbe law or rule concerning discovery. I will not tolerate discovery abuse of any kind.
I encourage timely mutual exchange of relevant documents, particularly documents upon which a party relies. I encourage you to agree as soon as possible on what types of documents are relevant and will be provided, as well as a schedule for exchanging such documents.
If you foresee the need for e-discovery, please discuss it with the other party. Ordinarily, I will impose limits on e-discovery along the following lines:
Lengthy and detailed interrogatories -- on any subject, but particularly about "facts" or "contentions" -- are generally inappropriate in arbitration and I discourage them. To the extent you wish to use interrogatories as a discovery device, please discuss the issue with the other parties to your case. I encourage you to limit interrogatories to inquiries regarding the existnce and whereabouts of documents, and witnesses with knowledge or information, relevant to issues in the case.
I encourage you to exchange pertinent identifying information (name, address, telephone number or other contact information) about persons with knowledge or information concerning issues in this case and to agree on a time for delivery of this information. Pre-Hearing Order will ordinarily set a date for disclosure of persons believed to have knowledge or information about relevant matters. I expect you to seasonably supplement your submissions in the event you acquire knowledge or information about other witnesses.
Expert witnesses are not required. Where you anticipate presenting expert testimony at the arbitration hearing, I expect you to notify all other parties of the name, address and qualifications of your expert promptly after you have determined that you will present expert testimony -- and in any event sufficiently in advance of the discovery cut-off to allow any appropriate expert discovery. I also expect that you will promptly provide all other parties with:
I encourage you to mutually agree on a date by which this information will be provided and whether it will be simultaneous or staged, please discuss its subject with the other party prior to the initial preliminary hearing and be prepared to advise me of what you have agreed to. If a deposition of an expert is to be taken, and the expert has prepared a report for the party retaining him or her, I normally require that a copy of the expert's report be furnished to all other parties at least one week prior to the deposition.
Numerous and/or lengthy depositions are inappropriate in most arbitrations. I encourage you to realistically evaluate both your deposition needs and those of the other parties to this dispute and to work cooperatively to (1) agree on a deposition schedule and (2) utilize less formal -- and less expensive -- witness interviews when appropriate.
Documents produced for this arbitration and the testimony of witnesses should be used only for purposes of this case. If you feel that a protective order is necessary or desirable, please confer with the other parties and propose one. If you are unable to agree, either that a protective order is appropriate or that the form proposed is acceptable, Please call your Case Manager, he or she will contacdt me and arrange a hearing on the matter.
Judges -- and arbitrators -- dislike discovery disputes. However, if you and the other parties are unalbe to agree on a discovery plan, the appropriateness of particular discovery devices, or particular discovery requests or responses to same, please contact your Case Manager to schedule a telephone conference call (or, in an appropriate cse, anin-person) hearing with me.
When you are unable to resolve a discovery dispute, I ask tht the party seeking relief provide me with a letter or brief succinctly demonstrating the necessity of the discovery requested (or, in the case of an object or, the reasons why the requested discovery should not be granted). If particular disovery requests (or responses to same) are at issue, you should provide me with a copy of same so that I may place the dispute in context I will rule promptly on any discovery disputes brought to me for resolution.
A reasonable time prior to the arbitration hearing, I expect you to exchange final lists of witnesses who are expected to or will testify at the hearing and lists (and a copy) of all documents which will be offered or are expected to be offered at the hearing. Witnesses and exhibits disclosed not previously will ordinarily not be permitted to testify or admitted over the objection of an opposing party, absent a showing of good cause although I will evaluate prejudice and make my decision on a case-by-case basis.
Each party's witness list should identify the witnesses (name, address, phone number) that party expects to testify at the hearing, identify the general nature of their testimony, and indicate how the witness will testify at the hearing (in-person, by telephone, by video deposition, by written deposition or by affidavit or declaration). If the witness is expected to testify by affidavit or declaration, a copy of the affidavit or declaration should be deivered to all other parties at least one week before the Hearing, unless a different date is established by my scheduling order. A copy of your witness list should be delivered to me at the same time as you deliver it to the other parties.
Although in many cases a witness's testimony may be presented by declaration or affidavit, I strongly encourage the party to have the witness available by telephone for cross-examination, as his or her availability for cross-examination may affect the witness's credibility and the weight I accord his or her evidence. If you wish to utilize all or a portion of a deposition transcript as substantive evidence, I expect you to provide all other parties with a copy of the transcript, highlighting those portions you intend to offer, at least 14 days prior to the Hearing so that your opponent may designate other portions of the transcript or identify any objections he or she may have to the portions you intend to use.
Each party's exhibit list should identify all documents the party expects to offer at the hearing. Unless the document has already been provided, a legible copy of each exhibit must be provided to all other parties along with the list. Please confer with your opponent regarding the number and numbering of exhibits; use this opportunity to eliminate duplicate exhibits. Because I am expected to decide your case, please highlight relevant portions of your exhibits in my exhibit book. To the extent you want me to read and understand an exhibit, be sure to have a witness testify about it.
I recognize that even the most skilled and diligent among us cannot anticipate every eventuality and that supplementation of witness or exhibit lists may be necessary and appropriate. I expect, however, that you will make a good faith effort to timely identify witnesses and exhibits so as to minimize any prejudice to the opposition generated by late disclosure. I will consider foreseeability and prejudice in deciding whether to allow a late-designated witness or exhibit.
If you desire me to issue a subpoena to any person to attend the Hearing, or for a deposition (or pre-hetring production of documents), please first discuss the matter with the other parties. For subpoenas to third-parties, I expect that you will also have contacted the third-party to discuss the scope of the subpoena (if for documents) and the timing of the third-party's appearance. Remember that enforcement of subpoenas to non-parties is for the appropriate court.
CLAIMS AND NARROWING THE ISSUES
Where the demand for arbitration is only by way of the standard AAA "demand" form, I find it helpful if the parties provide me (and the other parties) -- fairly early in the arbitration process -- with a short "plain english" (3-4pp) outline of the principal claims (or deissues involved in the arbitration, a statement of their respective contentions and a plain statement of the relief sought.
No party is required to submit a hearing brief, although I encoursge the submission of succinct briefs addressing relevant issues (legal and factual) in the case. Briefs which apply the law to critical factual issues are particularly helpful. Briefs appropriate before or after the Hearing dependent on the nature of the dispute. Arbitration hearing briefs should not exceed 20 pages.
Hearing Date; Continuances; Cancellation Fee
The date for the hearing-on-the merits will almost always be set after consultation with the parties. It will ordinarily be changed only for good cause shown or if all parties agree to a continuance.
I will normally grant a continuance or postponement of the dates set aside for the hearing-on-the-merits only on good cause shown; your stipulation to a continuance or postponement is not necessarily good cause. I reserve the right to require a client representative of each party to attend any hearing at which a continuance or postponement is discussed.
Decorum and Facilities
I generally hold arbitration hearings at the Law Offices of Quarles & Brady in Phoenix, or in the local office of the AAA, unless the parties agree to a different location. The Notice of Arbitration Hearing will identify the location of the arbitration hearing in your case. While the setting is less formal than a courtroom, I expect counsel, parties, and witnesses will observe proper decorum. Direct your objections and argument to me, not to opposing counsel. Do not engage in personal attacks on opposing parties or their counsel; you will not advance your cause by doing so. Cell phones must be turned off during the hearing.
The Arbitration "Day"
The Notice of Arbitration will identify the starting time for the arbitration. I expect everyone to be ready to begin at the appointed time. That means arriving before the time set for us to begin. Morning "starts" will ordinarily begin at 9 a.m.; afternoon "starts" will ordinarily begin at 1:30 p.m. The arbitration day will ordinarily conclude between 4:30 and 5:00 p.m. We will take reasonable breaks througout the day. The lunch recess will normally be from 12 noon until 1:00 or 1:30 p.m. I expect counsel and witnesses to return to the hearing room from breaks promptly and be ready to proceed at the appointed time. With the agreement of all parties (and assuming the hearing facilities are available) I am ordinarily prepared to continue the Hearing through the normal lunch recess and/or for a limited time beyond 5:00 p.m.
If any party desires that a stenographic record be made of the arbitration hearing, that party must make the arrangements notify opposing party reporter's attendance fee will be the responsibility of the party arranging for same. If any party obtains a transcript that it will reference directly or quote from in examining witnesses or in argument, that party will be expected to provide me and the opposing party with a copy at no cost.
Use of Exhibits
Please bring a full set of your exhibits, appropriately marked, along with a current exhibit "list" for my use during the hesring. Please use a tabbed 3-ring binder for exhibits, include a few extra number tabs at the end of the binder to accommodate the inevitable "additional" exhibits. You are encouraged to highlight the relevant portions of documents in any exhibits. I encourage the parties to agree on the admissibility of as many exhibits as possible. Once an exhibit has been admitted, you will want to make sure I understand that a witness has some connection with or understanding of an exhibit.
Counsel, or a party which is unrepresented, may give a brief opening statement if desired; the opening statement will ordinarily be given immediately after the opening of the Hearing and will, except in unusual circumstances or complex cases, be limited to 15 minutes. Your opening statement should be non-argumentative and should focus on (1) the issues, (2) the proof you anticipate will be presented, and (3) the relief or damages you seek.
Presentation of Evidence
You should come to the hearing fully prepared to put on all of your evidence. I encourage you to stipulate to matters or claims not in controversy so that we may make the most of the time available. Usually the claimant will put on his or her case first, followed by the respondent. In wrongful discharge cases which have a good cause standard the employer will be expected to proceed. Evidence concerning counterclaims or cross-claimes (offensive or defensive) will ordinarily be put on as part of the party's case. Cross-examination and reasonable re-direct and re-cross examinatin will be permitted.
Hearing Management Procedures
We will discuss time requirements for each witness. A requirement that the direct testimony of all party-controlled witnesses, or perhaps only the exert witnesses, be submitted in writing (and esxchanged in advance of the hearing will be considered. Where this option is adopted, the party "presenting the wiitness will be given an opportunity to "introduce" the witness by a short live direct examination to introduce" the witness and highlight portions of the witness's written narragive. Normal cross and re-direct examination then follows.
Order of Witnesses
On occasion a witness's availability is limited to certain times or dates. Requests for an accommodation in this regard will be handled on a case-by-case basis but will ordinarily be granted absent a showing of some prejudice. I encourage you to cooperate and agree on such requests. In cases where multiple hearing days are scheduled, I normally require that the "presenting party notify me and all opposing parties, the day before, of the order in which the next day's witnesses are expected to testify.
Rules of Evidence
Unless your arbitration agreement requires application of state or federal rules of evidence, strict adherence to those rules will not ordinarily be required, although I generally use the rules of evidence as a guide in admissibility of exhibits and the appropriateness of questions and testimony. While the rules governing admission of evidence at the arbitration hearing will be more relazed than in a court proceeding, counsel will be expected to lay an appropriate foundation and to observe normal witness interrogation rules regarding leading one's own witness on substantive matters. Hersay evidence will normally be admitted if it is of the sort thst business people and others commonly regrd as trustworthy and rely on. Counsel are encouraged to bring anticipated evidentiary problems to my attention prior to the arbitration Hearing. Directobjection to me. You may impeach a witness who departs materially from his or her deposition testimony, but use the process sparingly and only with respect to material departures; do not wast your time niggling over minor, non-substantive variations.
If witnesses who all say the same thing is a waste of time. If a witness will corroborate evidence givn by others, establish that fact quickly and move on.
Use of Depositions
the responsibility of the party desiring to offer deposition testimony to provide other parties with a copy of the transcript marking/highlight ing those portions the party desires to offer. Other parties may then mark/highlight the portions of the deposition they wish to offer. You may simply submit the marked/highlighted transcript to me; I will read it after the hearing day. If the dposition is lengthy, I may ask counsel to give me an oral summary of the key points for which the witness's deposition is being offered.
Use of Technology in the Presentation of Evidence
If you do use technology, be sure you know how to use it efficiently and effectively; transitions should be pre-cued and seamless. You should be certain tha the equipment necessary is in the room where the hearing is to take place.
The Arbitration Hearing is a "Closed" Proceeding
The Hearing is not open to the public and will not e opened to the public, unless required by appliclbe law, except (1) on stipulation of all parties and (2) with my permission. Ordinarily, the only persons permitted in the arbitration hearing room will be counsel, a designated representative of each party (who may also be a witness at the hearing and the witness testifying.
If the a reasonable amount of time will be afforded you for closing argument. Closing argument will ordinarily take place immediately following the close of the presentation of evidence. If necessary, we will take a short recess following the close of the evidence in order to permit counselto organize themselves for closing argument. I encourage to focus your argument on the evidentiary support for your case and the legal principles you believe apply. I expect you to precisely identify the relief you seek. If all parties agree, "argument" to be presented in writing, within an agreed upon time after close of the presentation of evidence.
"Close" of the Arbitration Hearing
will "close" the arbitration Hearing upon completion of the parties' closing argument. This formal "closure" begins the time within which I may make my award which is usually 30 days following final argument or post hearing Briefs.
Statement of Relief Requested
As an aid of the award in your case, I will require that each party provide me day but in anyprior to closing argument, with a statement of relief requested -- the award (claim-by-claim) the party proposes that I enter, I may request Proposed Findings of Fact and Conclusions of Law that each believes will be supported by their evidence.
Also, unless your arbitration agreement requires otherwise or all parties have timely requested a "reasoned awrd" my award will be very short and simply make an "award" based on the evidence presented. If your arbitration agreement requires entry of findings of fact and conclusions of law, each partu will provide me with their form of proposed findings and conclusions prior to conclusion of the Hearing.
Unless I agree to provide the parties with a draft award, I will simply make and enter my aard and serve the parties with a copy. The award (whether a Partial Award (below) or a Final Award) is final as to all matters addressed therein. Transmittal of an award is not an invitation to seek reconsideration.
Cases in Which a Party May be Entitled to Attorneys' Fees
In cases where a party may be entitled to an award of attorneys' fees, I will ordinarily close the hearing as to the merits of the dispute and make an interim award on the merits of the dispute, deciding attorneys' fees after the partial award has been entered upon application, objections and reply.
The formal attorneys' fee submission should give me sufficient informtion to evaluate the reasonableness of the attorneys' fees requested.
Attorneys' fee issues are generally by affidavit or declaration. If you desire to present oral testimony or oral argument, I will expect you to show me why that is necessary. Regardless of the form of the "hearing" on attorneys' fees, you will have an opportunity to argue your views.
Following the "hearing" on attorneys' fee issues, I will ordinarily enter a written order dealing with the matter. In any event, my decision on attorneys' fees will be incorporated in the final award entered in the case.
I encourage all parties to attempt to resolve the dispute by settlement ther through direct party-to-party (or lawyer -to-lawyer) negotiation or with the assistance of a neutral third-party mediator. I will not, however, be involved in any aspect of your settlement negotiations and ask that you not even advise me of them, except insofar as they may potentially impact the schedule of case events established. The AAA has a panel of experienced, skilled and very well regarded mediators available to assist in that regard; in addition, there are skilled privated mediators in most major metropolitan areas. Your Case Manager can supply you with information about the AAA's mediation services and mediators. Obviously, if your case is resolved by settlement prior to the arbitration hearing, you should promptly call your Case Manager so that I can be advised and take the hearing datge(s) off my calendar.
Service by email
In the absence of an objecdtion by a party documents required to be served or filed (except original process) and be sent by email.
Any such documents should be sent in PDF format. Please confirm with your opposition that they have the capability of opening any documents you send. Attachments (such as briefs, declarations, exhibits) may be sent by email only if the attachments fo not exceed Iin the aggregate) 2 MB of data. Lengthier or larger attachments should be sent in hard-copy.
Revised September 2017In