Reaching the Non Attorney Panelist

From PLI’s Course Handbook

Securities Arbitration 2007: Arbitrators and Mediators – Winning Their Hearts and Minds

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reaching the non-attorney

panelist

Fred S. Pieroni

Mediator/Arbitrator

Reaching the Non-Attorney Panelist

Fred S. Pieroni

Introduction

With arbitration morphing into litigation, practitioners routinely file motions and submit memoranda of law to an audience they don’t realize may not appreciate the “legal import” of their arguments. While a large percentage of public arbitrators are attorneys, many are not, but few practitioners make presentations to them with that recognition. For many years, I have been a non-attorney arbitrator. From that vantage point, I would like to tell you about some of your failings to get through to me and my fellow non-attorney arbitrators. I would also like to suggest ways in which you can present your case to us without losing the essence of your case.

Selecting Public Arbitrators – Why About Non-Attorneys?

The claim is filed; the paper work is completed; the next step is getting a list for panel selection.A formidable task now lies ahead for every advocate in the business of arbitrating securities cases before the NASD or NYSE, or any other forum that provides such services. Who on that list do I want to hear my case and who may render a favorable Award? That should be your central question, and whether the qualified arbitrators on the list are attorneys or not should not, by that fact alone, determine the answer.

Like all those who face this task, counsel for each party begins the selection process of a neutral by taking into consideration the individual's background, business experience, experience in a neutral party forum and training for the task at hand. These are all worthy points to contemplate and all are significant. Each carries a pro and a con. One factor which must enter the decision making process is whether the arbitrator is an attorney.

The greatest advantage to having a non-attorney on the panel is that he or she is more like your individual client than attorney panelists. In addition, since arbitration is still a forum of equity, there is a greater chance that non-attorney arbitrators will focus on the fair and right resolution of a case instead of towing the line, without question, to legal precedent. That could also be the greatest disadvantage, depending on your case.

Know Your Audience

Who are you trying to convince? This is a sometimes forgotten point of consideration, and, if forgotten, can lead to difficulties not contemplated. Since almost all panels at the SROs have on their rosters many non-attorneys, it becomes essential, if a non-attorney is on a case, that you always keep this question in mind: How do I reach that panel member or members?

A critical preparation factor for counsel must include the strategy to present the case in a manner that will give the non-attorney a thorough understanding of the issues. It sounds elemental, but sadly issometimes overlooked. The goal is to speak to the level of understanding of the non-attorney who may have limited contact or understanding of the legal issues at hand.

All panel members receive a certain amount of training. All panel members have some grasp of the topics and have prepared themselves for the hearing. But they may not be prepared to deal with the "legalese" with which they most certainly will be confronted.

It is vital that the case be presented in a manner that speaks to the level of understanding of the non-attorney and perhaps, as well, to thelimited experience of the attorney arbitrator.

Counsel must distinguish between courtroom language and behavior as opposed to appropriate language and behavior in a less formal arbitration hearing. In arbitration, counsel is confronted with the hybrid justice system in which judge and jury are one and the same body. How does one move ahead knowing that there may be one or more non- attorneys who will hear the case and ultimately be a part of the decision making process? In that sense, it is important to note that form should not trump substance.

Tips on Technique from a Non-Attorney Arbitrator

Volumes of paper don’t decide cases and volumes of noise are soon tuned out with mental ear plugs. Minimal distractions from the opposing practitioners will often produce an effective hearing. To be effective, the process requires: (a) a narrative from beginning to end,(b) clear and concise testimony and (c) specific pertinent documents in a manner that bothattorney and non-attorney arbitrators can digest, discuss and reach a reasonable conclusion.

Counsel must always take into consideration the fact that the non-attorney who may have limited experience is making every effort to internalize myriad facets of the process - surroundings, documents, arguments, taping or transcribing of the proceedings and, ultimately, in many instances, briefs before the commencement of the case and at the conclusion.

How does one keep that panel member in the flow of thehearing? One must convey the intended message in aclearand precisemanner that is not overburdened with legal references. Such references may be lost to the non-attorneywho is unfamiliar with such terminology, who may very possibly become distracted. For you advocates out there – Don’t play to your ego. It’s important to concentrate on the narrative to prove your case. The manner in which you proceed can either be convincing to the neutral or lose the neutral somewhere along the way. And once he or she is lost, it is extremely difficult to get that arbitrator back on your tracks.

Discovery and Non-Attorney Arbitrators

How the discovery process is handled is first and foremost in setting the stage for the rest of the case. Case management, post-McMahon, has grown significantly more complex than prior to or immediately after that 1987 Supreme Court decision.The scope of cases and the alleged damages involved has caused a significant growth in the number of documents requested and the manner of their production.

There are now numerous additional tasks involved in such discovery. For example, e-mail production: How far back? How many? What about the number of people contacted and the level of involvement, cost and time? For the panel member who is a non-attorney and little experienced in arbitration, but perhaps a successful business person,ask yourself this: Can all the above mentioned be justified or will it be considered a “fishing expedition "? We get sea sick as easily as attorney arbitrators.

It can be confusing to the non-attorney panel member as to “Why all the fuss?”. It becomes essential that this panel member be made to understand for or against the need for production of requested materials in a manner that speaks to the logical need for certain information, balanced against the burden to produce it. In a simple term, make sure it is relevant. Keep in mind that this panel member is making a concentrated effort to understand the process while attempting to digest the information presented and possibly, consciously or subconsciously, relating all of this to his or her personal experiences and background. At the same time, the panel member is preparing to reach a decision.

Counsel must constantly bevigilant of the desire of panel membersto do the right thing when making a decision at any stage of the proceeding.It is the advocate's role to make that task one in which the arbitrator feels comfortable and confident about the decision he or she is about to make. Although decisions are not an easy task, there should be no confusionadded because of esoteric arguments, misguided disagreements, rude behavior, so-called “clear” legal arguments that are not clear, andthe failure to communicate to panelists in aconcise and organized manner. The less you say, the more effective you are. Each time you repeat what you’ve just said, the greater will be the chance that you will lose our attention.

Hostility between attorneys never advances any case and can easily be perceived in the wrong way by the arbitrator, resulting in perceptions which may be difficult to dislodge from the arbitrator’s perspective as the case progresses. For the non-attorney, the nuances of a particular issue and whether certain procedural matters debated at lengthare really that important can become critical.

The minutia of a case doesn't help the non-attorney when he, in his own mind, is asking these questions:

Why are we here?
What is the issueI have to decide?
What reasons are they giving me to decide this matter one way or the other?

Sgt. Joe Friday, a television character in the 1950’s showDragnet, used one refrain over and over, "The facts, ma'am, just thefacts.” How better to bring the attorney and non-attorney arbitrator along in your narrative than to do just that:Present "the facts.”It’s the mark of an advocate insecure about his case that often causes him to pile facts upon facts, until the essence of the case is lost under a pile of duplicative facts.

Documentary Evidence Should Augment Testimonial Evidence

To help the non-attorney on your panel move forward with you on your case, it’s essential that the documentary evidence be presented in a logical, organized format. In order to keep our attention, the best approach is to provide us with a loose leaf binder with documents in numbered, sequential order. As basic as this would seem, the pile of paper, one sheet at a time, handed over and left to the arbitrator toorganize is, for a non-attorney panel member, a daunting task that soon becomes a frustrating one.

Just as you want your witnesses to tell a story in a chronological fashion, think of your exhibits - the documents - as pieces of the puzzle of that story, placed into the puzzle at appropriate times to accentuate the witness’ testimony.

It is important to keep in mind the number ofhours you have spent in reviewing and preparing and how familiar you are with your evidence. But for the arbitrator, this is the first time he will be seeing it.The arbitrator will be dealing with a pile of paper while, at the same time,trying to listen to testimony and attempting to refer to a document, take notes and, most importantly, be able to put the document aside and have the ability to draw upon the document again, in the future, from a pile that he received over the course of a day, a week or months.

A fruitful endeavor, which will assist both sides,is to agree on documents before the hearing and to submit a single binder to the panel at the outset of the hearing, thereby reducing paper at the hearing, as well as objections as to relevancy.Tracking the documents, testimony and note taking, is a task that requires concentration. Don’t distract us. Help us be as focused as you are. After all, you want us to “get it right,” right?

Objections Overruled – Even by Non-Attorneys

Now add to that a plethora of attorney objections, sometimes incomplete, sometimes loud, sometimes repeated, sometimes confusing and sometimes all of the above, and the task for the non-attorney - to decipher what is important from this behavior – becomes nearly impossible.

Of course, objections are important and arean integral part of the process, but arbitration is not a courtroom battle. Or, at least, it shouldn’t be. Repeated objections slow the flow of a hearing, distract the non-attorney arbitrator from the matter at hand and keep that arbitrator from concentrating on his original question:Why are we here?

More often than not, non-attorneys serving on panels want as much information as possible so that they feel informed enough to make a decisionwith which theyare comfortable. So the never-ending battle of what goes into the record over objections and what stays out because of objections may very well begin to raise questions in the mind of the non-attorney arbitrator: Why can't I see that document? What are you trying to keep from me? Why are you trying to do that? Is there a document that contradicts your client’s testimony or is at odds with your theory of the case?

Experienced counsel can well attest to the fact that panels will invariably take in a lot of evidence over objections. Why then the never-ending battle over the relevancy ofa document which may very well be losing the attention of thenon-attorney member as to what is really important and what is not?

What, then is the formula, if one is possible? In a word: balance. Balance is key since there is a need to appeal to the experienced arbitrator who may not be an attorney and, at the same time, not to overwhelm the non-attorney who may have limited experience.

A Different Perspective

The non-attorney panel member comes to an arbitration hearing from a different point of view as to procedure and perhaps protocol. Counsel mustplan to deal with the actions of an arbitrator non-attorneywhose business and life experiencehave not, for the most part, beeninvolved in adjudicating matters in a formal setting.

Often, the non-attorney may just want to you to get to the point faster. If the line of questioning, although proper andthought out, may be taking along time, be prepared for the non-attorney arbitrator to interrupt and ask a question. Their questions should not be viewed as a negative to one side or the other. Try to use the question as a key, since it will show that a point has not been madeclearly and that the arbitrator is still unsure or unclear as to the answer. This allows counsel to follow up on that point of interest.

Not a Court Room

The need to maintain a strict courtroomsetting can raise the level of anxiety, nervousness and pressure on all present, but especially to the uninitiated in the hearing process. Decorum and courtesy are essentialto an effectively run hearing, buta stifling, reserved behaviorcanincreasethe level of tension. An appropriate comment that will relax the parties and panel, or something spontaneous that creates some laughter, is always a welcome break to ease the burden on all.We are not deciding the death penalty, after all.

Trying to anticipate all the possibilities that may arise in an arbitration is a Herculeantask. However, putting forth the case in as simplified a way as possible can reduce many of the risks with which one may be confronted.

Conclusion

I return to the starting point of one non-attorneyor possibly two on a panel. The advocate’s task is not always one of putting forth a legalissue-driven case, but, rather, a case of facts to which a non-attorney can relate. The more legal references counsel makes, the greater the possibility oflosing a panel member or two along the way.

That judgment call goes back to the beginning - evaluating potential panel members and selected panel members who are non-attorneys.To those of usnon-attorneys who have served on arbitration panels, it is sometimes apparent thatcounsel has missed an opportunity when a non-attorney, or less experienced panel member, remains confused.That doesn’t mean you should speak down to us, but to speak to us, as if you were speaking to your client.

Preparing your case and presenting it carries with it a lot of time, energy and effort. Don’t throw it away because of miscalculating the involvement of the non-attorney or lesser experienced arbitrator on the panel.