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:
- Part 1 – Can ADR practitioners excel without honing their trial skills?
- Part 2 – Mediation and endless curiosity
- Part 3 – Negotiation and the insecurities over losing control
Upcoming posts in this series:
- Part 5 – ADR in studio71
You can join in our LinkedIn discussion on the ADR topic here!