Navigating a Timed Arbitration: Strategies and Challenges in the Race Against the Clock

Our team took over as plaintiff’s counsel in a years-long trade secrets case that was set for jury trial in just a few short months. As the trial date quickly approached, the parties agreed to submit the case to a single arbitrator.

In arbitration, the rules are based on the parties’ agreement. The parties may implicitly select a set of rules in selecting a provider like JAMS or the American Arbitration Association, or they may expressly negotiate other applicable rules. In our case, we agreed on the following:

• Each side would have nine hours total to use as it wished for opening statements and witness examinations, with no closing argument.
• The parties would conduct direct examination by witness statements submitted simultaneously in advance. Live testimony would begin with cross-examination, followed by any re-direct.
• No evidentiary rules would apply.
• Pre- and post-hearing briefing would be limited to one brief per side, with no rebuttal.

With others on our team, we squeezed the most out of every critical minute before the arbitrator—and won a sizable recovery for our client. While these lessons are essential for a short timeframe, they are valuable lessons for longer engagements as well. 

Stay flexible and consider how alternative dispute resolution can serve your client’s goals at every stage of the case.

• The client’s goals can change over the life of the case. This case had been pending for eight years, and by the time we were hired, the client wanted a judgment by the end of the summer.
• Both sides wanted to resolve the case—finally. We agreed to a three-day arbitration with time limits and no reasoned opinion.
• We faced several challenges, like finding an arbitrator both sides were comfortable with, and selecting dates that would work for the arbitrator, counsel, client representatives, fact witnesses, and expert witnesses.
• By combining the 18-hour time limit with a hybrid format, we were able to meet our goals. We submitted direct examinations in the form of sworn witness statements ahead of time. The first two days of the arbitration were held in person, during which the parties presented opening statements, cross-examination and redirect of all fact witnesses to the tribunal in person, and presented some expert witnesses in person, while allowing others to participate via Zoom. To accommodate schedules, the final day of the arbitration was conducted completely over Zoom and consisted of the cross-examination and redirect of the remaining expert witnesses.

Use the opening statement to prove your prima facie case.

• When direct examination is submitted by written statements, the first live testimony will be on cross-examination.
• As petitioner, we wanted to strategically use the opening statement to refresh the tribunal on the written statements and to anticipate the respondent’s questioning.
• We opted to use two of our nine hours on our opening statement, walking through each point of proof for our case.
• To avoid a monologue, we split the opening across our four lawyers—each advocate used his or her own personal style to describe how all the testimony and evidence would come together to prove our case.
• By the time the respondent presented its opening statement, the tribunal had heard our prima facie case—effectively shifting the burden to the respondent.

Submit witness statements that use the witness’s own words and voice.

• When the witnesses’ first live testimony will be on cross-examination, authenticity and credibility are critical.
• Our witnesses drafted their own statements based on prompts and follow-up questions. We resisted the lawyer’s natural temptation to edit the witnesses’ words.
• A witness’s credibility can be quickly compromised when his testimony under cross-examination contradicts his sworn written statement, leaving the impression that someone else wrote it for him.

Help your expert witnesses—even the seasoned ones—understand their role at arbitration.

• Some of our expert witnesses were seasoned veterans in litigation, and arbitration was not new to them, but the format the parties had agreed to here was atypical. We needed to keep our experts’ live testimony short because of the clock. We worked to make sure our experts’ witness statements clearly demonstrated their qualifications and provided the tribunal with even more detail than we would usually present to a jury.
• Our industry professional—though extremely experienced and respected in his field—had never served as an expert witness. We worked to help him understand his role as an expert witness, the process of providing his qualifications and opinions, and how to feel more comfortable testifying before the tribunal.
• Our experts also assisted during the post-hearing briefing process by identifying the live testimony and evidence that further supported their opinions, so we could weave together the full story.

Research the arbitrator’s prior cases to determine where to focus your time.

• Unlike a jury, the tribunal is likely more familiar with the applicable law and will have those elements in mind while hearing the evidence.
• In our case, the arbitrator’s experience in patent and trade secret cases meant he was familiar with trade secrets law and damages valuations.
• Because of the arbitrator’s background, we could rest on our witness statements for basic facts like the experts’ credentials and the valuation methodology.
• We focused our cross and re-direct examination on tougher questions we anticipated for the post-hearing brief—like why the inputs for the experts’ methodologies were reasonable.

Use the post-hearing brief to underscore the themes and evidence you foreshadowed in your opening statement.

• Fifteen days after the parties presented their evidence, they simultaneously submitted post-hearing briefs. This post-hearing brief was our chance to tie all the pieces together and explain how, as we had predicted during our opening statement, the written statements, live testimony, and documentary evidence all established that our client was entitled to an award.
• There was no opportunity for rebuttal, so we had to anticipate what the other side would focus on, address it, and convince the tribunal why the evidence weighed heavily in our favor and supported our requested damages award.
• Don’t risk your credibility or your reputation by trying to overstate your case or misrepresent the evidence. Stay true to the record.