Construction arbitration offers a faster, more cost-efficient alternative to traditional litigation hearings. As discussed in my previous article, “Construction Arbitration: 3 Tips for the Pre-Hearing Phase,” there are specific steps you can take to strengthen the foundations of your case during the pre-hearing phase of arbitration. This article will focus solely on the evidentiary and post-hearing phases of arbitration – providing you with five actionable best practices for your next arbitration proceeding .
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01. Present a Detailed Road Map of Your Case
Many attorneys make the mistake of limiting their opening statements to a static recounting of the events that led to arbitration, leaving out valuable opportunities to create a richer perspective for the arbitrator to work from. Your opening statement should stand on its own as a powerful, cohesive outline of your entire case – including the events that led to the dispute, your supporting evidence, and an overview of the legal reasonings as to why the other party’s position should be considered inadequate. In legal parlance, this is known as the ‘theory of the case.’
Consider whether supporting visuals may reinforce the narrative of your opening statement. Utilize graphics for clarification via graphs, tables, charts, photography, screenshots, or animations if possible. The opening statement is a teaching moment, and the clearer and more persuasive it is, the better you have “schooled” your opponent!
02. Frequently Reference an Accurate Calculation of Damages
This is an alarmingly common mistake in construction arbitration; attorneys will fail to provide sufficient information on the actual damages owed by the defense, and thus risk the chance of their case failing to meet the burden of proof. Such presentations typically rely heavily on the “story” of the case, but can look as if the attorney and his or her client are “winging” the damages portion! There are no free lunches – do not expect a satisfactory award of damages without providing a clear and convincing analysis of those damages, with both the attorney and client demonstrating an intimate understanding of the damages calculation.
Always ensure that your claims and damages are in front of the arbitrators eyes as often as possible. Create an exhibit of these calculations to showcase each claim item to the arbitrator in a straightforward manner, and reference these exhibits frequently. Bottom line: it is a party’s burden to establish the accuracy of its damages, and if the presentation is not clear or convincing enough, don’t expect the arbitrator to award it.
03. Capitalize on Questions Through Active Listening
Attorneys sometimes become so ingrained in their questioning and presentations that they miss a valuable question asked by the arbitrator. Questions are powerful opportunities in construction arbitration. A poised attorney seizes these opportunities at every chance, taking a question and providing a well-informed answer to further strengthen their client’s advantage. A listening party, also, can hear through the arbitrator’s question any lingering doubts or uncertainties the arbitrator may have regarding the theory of the case, and can work in tandem with their counsel to clarify the issue.
Anytime an arbitrator asks a question, it is because they believe the answer will help provide them with a more complete understanding of the dispute. Never hinder this process. If you feel that the arbitrator’s line of question conveys a misunderstanding on a particular topic, provide them with diplomatic education to get them back on track. Note impactful questions the arbitrator asks throughout the hearing and ensure your attorney references those questions during closing argument to make the answers even more effective to your theory of the case.
04. Watch the Arbitrator for Signs of Confusion
During a traditional trial, attorneys cannot directly ask the judge or jury whether they have heard ample testimony on a subject or understand the presentation. This is not the case with the informalities of arbitration – where you may directly converse with the arbitrator. Yet, many attorneys still underutilize this powerful component of arbitration. Arbitrators, like many people, display a plethora of emotions through body language. Strategic parties and their attorneys make note of this body language and respond accordingly.
For example, an arbitrator may furrow their eyebrows during any particular testimony, belittling their underlying confusion on the subject. It is perfectly acceptable to directly ask the arbitrator whether they would like to hear more testimony or if they understand the subject being presented – and to do so further showcases your thoughtful ability to pursue truth in understanding, thus strengthening your case.
05. Provide the Arbitrator with a Proposed Award
Remember that, during the pre-hearing phase, you are given an opportunity to request a reasoned award, or a “standard” award. Unfortunately, though, even a reasoned award does not necessarily guarantee detailed breakdowns at the end of the evidentiary hearings – as the American Arbitration Association (AAA) does not explicitly provide guidance on what a “reasoned” award actually is. In Leeward Constr. Co. v. Am. Univ. of Antigua-Coll. of Med., 826 F.3d 634, 640 (2d Cir. 2016), the Sixth Circuit held that an award can be “reasoned” even if it is “brief and conclusory.” Such an award can lead to confusion, and – even worse – prevent further pursuit of other parties like insurance companies, for example. Without an itemized breakdown of the award, it would be impossible to determine if a party prevailed on specific claims covered by insurance. This is why it is important to specify with the arbitrator and opposing counsel what a reasoned award should actually include, and to “follow-up” by providing a proposed award with your post-hearing brief.
The proposed award is your chance to write the award you want – or at least, the most favorable decision for you that you and your attorney believe the evidence can support. But, bear in mind that it is unlikely that the arbitrator believed nothing the other side said, so if your proposed award does not change one drop from your opening position, you will be viewed as the not credible one by the arbitrator.
Rather, the proposed award is the time for you to carefully consider what credits you can stomach giving the other side, and in this way, hope that you are the one marking up your claim with the red pen, rather than the arbitrator. In my experience, if you are fair in your proposed award and provide reasonable credits to your damages when the evidence supports it, the arbitrator will usually adopt your version, or at least portions thereof, within his or her final award.
Lastly, be careful to request specific language in the proposed award if you are considering the pursuit of further proceedings against other related parties. Request your proposed breakdown and accompanying language together with a brief statement on why this information is important within the award.
I hope these five tips will help you strengthen your case and increase the likelihood of a successful outcome to your next arbitration proceeding. If you are personally in need of an experienced construction arbitration attorney, please don’t hesitate to contact me for a free 15-minute consultation, today.