Trial skills will enhance your ADR skill-set. During the month of January we have focused on bridging the gap of disconnect between the two practices, and we have shown how developing great trial skills can make you better in mediation, arbitration, and negotiation.
For the final post in our Alternative Dispute Resolution series, Karen M. Lockwood, NITA’s Executive Director joined me in studio71 to answer a few final questions on the correlation between the ADR skill-set and the Trial skill-set. Karen has over 30 years of experience in the legal industry. Her specialties include construction litigation, commercial disputes, large disaster cases, antitrust, trademark and copyright, and ADR. She has been on the American Arbitration Association Commercial Panel since 2004. Karen was an Adjunct Associate Professor of Law in ADR at the American University of Washington College of Law as well as a faculty member and program director at multiple NITA trail skills programs.
We hope that this five-part series has helped you bridge the gap between trial skills and ADR, and that you have learned that trial-skills are in fact very important in the practice of ADR. We also hope that this series has helped you be less afraid of trial.
Previous January ADR Series Posts
Thank you for reading and weighing in on ADR this month. Next month we will be focusing on Diversity in the Courtroom in honor of National Black History Month.
NITA’s award-winning Online Deposition Program is now the feature of a case study produced by Sonic Foundry. NITA’s incorporation of Mediasite, Sonic Foundry’s lecture capture and webcasting platform, allows for a teaching method called ‘flipped learning’ where participants can watch a pre-determined series of lectures and demonstrations before a program begins. This better prepares attendees for the program and maximizes the amount of performance time (NITA’s learning-by-doing method) once the program beings. In addition to being the subject of a case study, NITA’s studio71 was also featured in an article in recent issue of AV Technology Magazine. To download the full digital version of the issue NITA is featured in click here.
Upcoming Online Deposition Skills Programs
Take a look inside NITA’s studio71.
For more information regarding studio71 and what it has to offer please feel free to contact firstname.lastname@example.org.
In this Quick Tip video, Lonny Rose helps us understand the ‘what, when, and how’ about Motions in Limine. He talks about the most common forms of using Motions in Limine, and how to use them in a tactical way.
See more Quick Tip videos on our Youtube Page
If you are looking for one book to guide you through the arbitration process, look no further than the NITA classic Arbitration Advocacy, 2nd Edition.
Authors John W. Cooley and Steven Lubet have combined their experiences in the courtroom and classroom to bring you a detailed and in-depth guide to arbitration and Alternative Dispute Resolution. This comprehensive text is designed to help readers understand and master arbitration and ADR from beginning to end. Arbitration Advocacy has been written for ADR practitioners, ADR neutrals and arbitrators, CLE organizations and participants, and teachers and students.
The book takes readers through the entire arbitration process, with chapters on general description of ADR and arbitration, pre-arbitration considerations, advocacy during arbitration hearings, and effective advocacy in cyberarbitration. Chapter 5 includes adapted sections of the NITA bestseller Modern Trial Advocacy, which discuss trial advocacy principles that pertain to arbitration hearings.
In-text charts supplement the material as the reader works through the book, helping to break down the content. The 200+ page appendix includes:
This post was written by guest blogger Christina Habas.
Arbitration and the art of witness examination: If you don’t know the witness exam and oratory/argument skills, you won’t have the alacrity to use them on a moment’s notice when the chemistry of the arbitration proceeding calls for it. If you learn them as trial skills, you can create a balance by incorporating them suitably to the flexible arbitration process.
An arbitration proceeding is no less a trial than a jury trial, despite the fact that no jurors are present to act as your audience. Your audience must clearly understand the story of your case, which is presented mostly through witness examination. That “story” will vary as to each witness, and their relative connection to the facts of your case. Your organization of that information will have a direct impact on the arbitrator(s) reaching their own conclusions about the importance of the witness’ testimony. Setting up the witness’ credibility to testify as to certain facts, illustrating their personal knowledge of those facts, and communicating the entire picture of information available to that witness (good and bad) in an understandable and memorable way requires a lawyer to utilize witness examination skills.
An arbitration will sometimes take on a life of its own. The arbitrator(s) often have sophisticated understanding of the legal issues involved in a case, and may wish to intervene in the presentation of your case. This requires the lawyer to exercise effective advocacy skills in listening to the issues raised by the arbitrator(s) questions, thinking about how best to address those issues, and asking sufficiently directed questions that are designed to provide the arbitrator(s) with the information needed to find for your client. A lawyer must be able to change their presentation to address what the arbitrator(s) believe are the core issues of the arbitration.
As your case is presented at arbitration, your ability to weave those facts and stories into your final argument that will motivate the arbitrator(s) to exercise their power on your behalf requires the lawyer to understand how decisions are made. The lawyer’s ability to clearly identify what it is that is being requested, and allow the arbitrator(s) to persuade themselves based upon the story of the case told through witnesses, is a critical skill. Although the terminology used by the lawyer during argument may differ somewhat from presentation to an audience of jurors, and the arbitrator(s)’ knowledge of the relevant law may be more refined than that of a jury, the art of presenting facts in a compelling manner that allows the arbitrator(s) to persuade themselves is a necessary skill for any lawyer contemplating arbitration.
Previous posts in this series:
Upcoming posts in this series:
You can join in our LinkedIn discussion on the ADR topic here!