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January 25, 2013

Friday 5: Tips for a Better Case in Mandatory Arbitration

by WSBA
arbitration
NWLawyer Editor Michael Heatherly offers tips to help you maximize your client’s chances of getting a good MAR result.

arbitrationI have amassed untold hours in mandatory arbitration, both as a lawyer representing parties and as an arbitrator. While most lawyers do a good job representing their clients in MAR, there are certain areas where I believe many could easily improve. Here are my top 5 tips for maximizing your client’s chances of getting a good MAR result. Be sure to check both the state MAR rules and the local rules of the county in which your case is filed for specific requirements.

  1. Use your pre-hearing Statement of Proof to summarize your case. Some lawyers simply follow the bare requirements of MAR 5.2, which calls for a list and summary of witnesses and exhibits to be presented at arbitration. But others add a brief narrative preview of their case — a miniature opening statement. As an arbitrator, I think that is always a good idea. I usually receive copies of the documents that will be used as evidence, but I also like to have some idea of what the case is about from each side’s perspective.
  2. Present witnesses to support your client’s testimony. MAR is meant to be simpler and less formal than trial. But that doesn’t mean you should ignore the human elements involved in persuading a trier of fact to find in your favor. Even a jaded veteran litigator may give more credence to a live witness than to a written report, sworn statement, or deposition transcript. It takes only a few minutes to put on a lay witness, and it can be done by telephone if necessary.
  3. Use simple graphics to tell your story. “A picture is worth a thousand words” holds true in mandatory arbitration, and it applies even though the arbitrator may have seen a hundred cases like yours before. Nothing improves an arbitrator’s understanding of a case more than a photo or two, a map or simple illustration, or a chart or list that summarizes numerical data, such as medical bills. With today’s high-res camera phones, Google Maps, and dummy-proof graphics apps, these are easy to create.
  4. Tell the arbitrator exactly what you want. Let’s face it: in most cases, MAR is all about the arbitrator deciding how much to award in damages. I would much prefer that both parties tell me exactly what they want, rather than beating around the bush or assuming I’ll know what’s fair because I’ve handled lots of cases before. If you represent the plaintiff, tabulate the exact dollar amount or range of special damages you’re claiming. If you’re asking for general damages, suggest a specific dollar amount or range and show your basis for calculating it. If you’re representing the defendant, suggest a specific dollar amount or limit you feel is reasonable and show your basis for it.
  5.  Request or oppose statutory fees/costs. The prevailing party at MAR is entitled to an award for certain statutory fees and costs (RCW 4.84.010 and .080). Before Sept. 2011, fees and costs had to be requested in a separate proceeding in court. Now, however, they must be requested by a motion to the arbitrator, no later than seven days after receiving notice of the arbitration award. The non-prevailing party can oppose the motion within seven days after service of the request. The arbitrator has discretion to conduct a hearing on the request.Since I don’t receive requests for fees and costs after all the arbitrations I conduct, I suspect lawyers either don’t know about the new rule, don’t know they can request fees and costs, or don’t bother pursuing it. But it seems well worth filing a simple request if it will compensate your client another $500 or $1,000. Or, if you’re the non-prevailing party, it seems worthwhile to inspect the request to make sure all the charges claimed are indeed covered by the rules for fees and costs.

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