Fred Bennett
Email: fredgbennettADR@outlook.com
1946-2022. Experienced international and domestic arbitrator and mediator, fellow with the College of Commercial Arbitrators, member of the National Academy of Distinguished Neutrals and the ICC Commission, former head of arbitration at Quinn Emanuel and Gibson Dunn.
My Mom (God rest her soul) has been vindicated. Growing up, I fiendishly resisted her endless attempts to convince me that "Perry Mason" was the best show on television, pointing out that if she would just attentively watch a single episode of "Super Chicken" or "Dudley Do-Right," she would see the light.
But Mom -- as always -- was right. Today, you can turn on cable and binge watch every episode, where the famous counselor extracts confession after confession from nefarious characters who deserve what they get. "Super Chicken" and "Dudley Do-Right" are sadly nowhere to be seen.
Not surprisingly, it appears that the fuel for "Perry Mason"'s resurrection consists largely of members of the legal profession itself, who seem to have coalesced around their courtroom hero like so many Grateful Deadheads. I actually saw this play out at a recent dinner event, where -- for a good 30 minutes -- lawyers at my table swapped not war stories but recountings of their favorite episodes. I went home that night and -- you guessed it -- watched Perry Mason dismantle another conscience-stricken witness.
Whether this portends the rebirth of other courtroom dramas remains to be seen, but amidst all the all the possibilities, there is one which stands indisputably above all others -- "My Cousin Vinny." (aka Joe Pesci). I know some lawyers who have not seen "Perry Mason," but I honestly do not know a single one who has not watched, more than once, "My Cousin Vinny."
Astonishingly, the film has become more than just a movie. It is part of the training program for new associates at my former firm, Quinn Emanuel, and I suspect at other firms, and -- are you ready for this? -- has for years been used by teachers at the Judicial College, which trains newly appointed California judges.
As we all know, the enduring appeal of watching Vinny trying to navigate his way around a courtroom in a murder trial is the highly entertaining way in which he demonstrates -- and fails to demonstrate -- some of the basic skills to becoming a good trial lawyer. It also raises the interesting issue of how Vinny's skills -- or from a larger perspective, trial skills in general -- transfer to the arbitration arena.
Credibility in Arbitration
Vinny's first foray into a courtroom -- six weeks after finally passing the bar (on his sixth try) -- is classic. He appears -- Johnny Cash-like -- in an all-black outfit, accessorized by a leather jacket and silver-toed cowboy boots, slouches down in his seat with boots on the table, and does not move a muscle when the judge takes the bench. This evokes, putting it mildly, a strong reaction. After interrogating Vinny in chambers about whether he is really a lawyer, the judge announces, in no uncertain terms, that Vinny shall (i) buy a suit and tie for court that is "all cloth"; (ii) stand every time he is addressing the court; and (iii) read and follow every court procedure "to the letter," on pain of being held in contempt.
This snippet is sometimes referenced to show the importance of establishing credibility with the judge to which you have been assigned for trial, and it is undeniably important to do so. But establishing credibility in an arbitration proceeding starts well before the hearing. From the first teleconference with the arbitrators, and throughout all pre-hearing activity, be assured that the arbitrators will be continuously evaluating your credibility. There is method to their madness. The arbitrators are testing whether you are someone who they can trust and rely on to provide accurate information to guide them through the complexities of the case. If you achieve and maintain this lofty status -- and particularly if your opposition fails to do so -- you will have the ears of the arbitrators all the way through the hearing, which is a huge advantage when the arbitrators turn to their analysis of the case.
There are a few pitfalls. With their loaded case calendars, judges assigned to deal with pre-trial matters will have only so much time to review your submissions. Arbitrators, on the other hand, are getting paid handsomely (usually hourly) for their work, and will almost certainly devote all the time it takes to read and internalize your submissions before you make your arguments. This in turn may lead to uncomfortably informed questions, or even a line of questioning, about a position you are taking. Don't assume that the arbitrators will have only a basic understanding of the issues that you can fill in with your own spin when the conference takes place.
Also, choose your battles wisely. Don't fight over small issues or press dubious positions on large ones. Good arbitrators are unlikely to be fooled by such tactics, and they will cost you credibility points. Worse, the arbitrators could interpret such actions as signs that you have a weak case on the merits.
Finally, please bear in mind that the arbitrators will expect you and your witnesses to maintain a high level of civility, which is the basic fabric of arbitration. Emotional outbursts -- although sometimes very effective with a jury, ad hominem attacks to dramatize the "evil deeds" of the opposition or a witness, and similar theatrics are almost guaranteed to cause credibility damage.
Arbitration Procedures
To show he means business on his "letter of the law" warning, the judge gives Vinny a 400-page treatise on procedure and, impossibly, tells him to read it before the arraignment hearing the next day. Watching Vinny thumb through the book in the hotel room that night, his fiancée states the obvious -- "You can't read all that stuff tonight!" to which Vinny responds, "Ain't no big deal, I'll learn as I go." The procedural flub-ups by Vinny in attempting to implement this dubious strategy, some of which get him jailed for contempt, sends a strong message about the importance of knowing and respecting litigation procedures.
It is therefore ironic that litigation lawyers who are devoted disciples of procedures in legal actions, sometimes venture into the arbitration arena without learning and embracing arbitration procedures. The typical explanation is a view espoused by many litigators who lack arbitration experience -- to quote a colleague: "Arbitration is simply litigation in a conference room."
It's not. Procedural rules abound for any arbitration, and they are substantially different from litigation rules. They emanate from the rules of arbitration institutions which the parties have chosen to administer their dispute, arbitration legislation of the state in which the arbitration hearing is to be held, the Federal Arbitration Act, and the arbitration clause itself. Arbitrators justifiably expect the parties to know and follow established arbitration procedure -- indeed, many arbitrators view certain procedural rules as actually limiting their jurisdiction in handling the case. One bright spot is that the arbitrators don't have the power to hold you in contempt for ignoring procedures -- so no jail time, but other consequences await that can be expensive and embarrassing. A common problem occurs when a trial lawyer's misconception that arbitration is subject to the rules of civil procedure and/or evidence that apply to litigation. This has spawned such things as pleading motions, motions in limine to preclude the introduction of evidence, and numerous objections to evidence under various evidence codes. It is no exaggeration to say that most arbitrators recoil when they see or read arguments based on litigation procedures. (There are no pleading motions in arbitration, and since rules of evidence do not apply, motions in limine are generally deemed to be irrelevant.) The inevitable results are summary dismissal of such motions on procedural grounds, sometimes an order to pay the other sides costs, and a possible suspicion in the minds of the arbitrators that you may not know what you are doing, topped off by a hard-swallow, embarrassing explanation to the client.
Consequences also arise from failing to follow arbitration procedures which one might take lightly because they seem overly technical. The failure to list a witness on a witness list, or to provide a written statement for a party witness in an international arbitration, probably will result in the witness' testimony being precluded. Bringing a summary judgment or other dispositive motion without first getting the arbitrators' approval (based on the reasonable likelihood that the motion will succeed), as required by most arbitration rules, will result in a summary dismissal without consideration on the merits. Seeking expert testimony from a lay witness who has not been designated as an expert will likely be denied. And a petition to have the arbitrators decide whether a non-signatory to the arbitration clause can be brought into the arbitration (unless the other side agrees), is doomed -- the law clearly requires this issue to be decided by a court. In summary, one who adopts Vinny's "ain't no big deal, learn as you go" approach in arbitration does so at his/her peril.
Yet with all of its unique procedures, arbitration offers a flexibility that the parties can take advantage of to customize the proceeding to the nature of the dispute. Arbitrators expect the parties to proactively resolve procedural issues by agreement, without the arbitrators getting involved, and this can cover a lot of territory -- scheduling, bifurcation or phased resolution of claims, limitations on damage awards, designation of the chair of a panel to decide discovery disputes, just for example. The not infrequently used litigation tactic of overwhelming the opposition with a tidal wave of procedural (e.g., discovery) motions in hope that the court will vilify your opponent, or to pound your opponent into a terrible settlement, will not play well in arbitration. To the contrary, the arbitrators will likely blame you for badgering them by raising issues that you should have been able to work out informally, and may even get the impression that you are trying to cover up a weak case. A telltale sign is where the arbitrators respond to your motion with a terse email the next day, before the other side has filed anything, either rejecting your petition or offering a solution which they obviously believe you should have thought of yourself. Not a good vibe.
Answering Arbitrator Questions
When asked at the arraignment "How do your clients plead?" Vinny has a hilariously hard time answering. He first tries to tell the judge a story to create the right context, and is cut short and cautioned to just answer the question -- under threat of being held in contempt. He then tries to paraphrase, stating "Your honor, my clients didn't do it" -- which actually earns him a contempt citation. Finally, after having been told several times that the only possible answers are "guilty" or "not guilty," Vinny rolls his eyes resignedly and murmurs "not guilty." The arraignment ends and Vinny is sent off to jail for a day.
The lesson is an obvious one -- when the judge asks you a question, answer it directly. Certainly the same is true with questions put by arbitrators in an arbitration. But one not familiar with arbitration may be surprised at the number of questions the arbitrators do ask, when they ask them, and how informed the questions are.
Basically, arbitrators will ask questions whenever they want to, trying to not unduly disrupt the proceedings. So best be prepared for questions at the beginning of any hearing (which the arbitrators sometimes pose to apprise the parties of topics they are most interested in), during the course of argument (which may require you to explore an issue out of order or in more detail than you intended without getting off track), or at the end. At the hearing, don't be surprised if the arbitrators ask questions directly to the witness, to be sure they understand the testimony, or even if they want details beyond what is contained in a witness statement -- you will be allowed the opportunity to follow up with your own questions on the issue, but it's a good idea not to frame them as a critique of the arbitrator's inquiries. At the end of the day, it is likely you will have had to field many more questions from the arbitrators than you typically would get from any court.
It is also important to anticipate the nature of the questions the arbitrators will likely put to you. In court, your case is one of possibly hundreds on the court's docket, which means that the judge only has so much time to devote to your submission.
On the other hand (as stated above) arbitrators have much more time to study and are paid for it. This can translate into informed questions that will subtly, yet courteously, explore in some detail the strengths and weaknesses of your case. It also makes the arbitrators very astute at detecting misrepresentations, baseless assertions of fact, delay tactics, and of course, any failure to answer a question directly. The lesson in all this -- put well by an eminent arbitrator colleague of mine -- is to prepare with the assumption that the arbitrators ultimately will detect, and possibly make known with their questions, every problem with your case that you see, even those to which the opposition appears blind.
My October column will continue the critique of "My Cousin Vinny" with regard to discovery and the arbitration hearing. In the meantime, since Joe Pesci and I happen to work out at the same gym, I' m debating whether to suggest he consider doing "My Cousin Vinny 2" which of course would find Vinny at the center of his first arbitration. Dynamite stuff.