Keith ClouseKeith Clouse Cecilia MorganCecilia Morgan

Alyson BrownAlyson Brown Karen WillcuttsKaren Willcutts

Dallas Bar Association Labor & Dallas Bar Association Labor & Employment SectionEmployment Section

October 17, 2011October 17, 2011

Maximizing Arbitration EfficiencyMaximizing Arbitration Efficiencyand Effectiveness: Don’t Treatand Effectiveness: Don’t Treat

Your Arbitration Like the CourtroomYour Arbitration Like the Courtroom

PanelistsPanelists Keith Clouse, Clouse Dunn LLPKeith Clouse, Clouse Dunn LLP

AAA Arbitrator/MediatorAAA Arbitrator/Mediator

Alyson Brown, Clouse Dunn LLPAlyson Brown, Clouse Dunn LLP

AAA Arbitrator/MediatorAAA Arbitrator/Mediator

Cecilia Morgan, JAMS Cecilia Morgan, JAMS

Arbitrator/MediatorArbitrator/Mediator

Karen Willcutts, JAMS Karen Willcutts, JAMS

Arbitrator/MediatorArbitrator/Mediator

Dallas County Civil Associate Judge, 2002-Dallas County Civil Associate Judge, 2002-20042004

From Mike Lynch Cartoons; originally appeared in Reader’s Digest.

Managing CostsManaging Costs

Parties Can Select Strategies to Impact Parties Can Select Strategies to Impact Costs at Every Stage of Arbitration:Costs at Every Stage of Arbitration: Arbitrator SelectionArbitrator Selection Management ConferenceManagement Conference DiscoveryDiscovery Motion PracticeMotion Practice BriefingBriefing AwardAward

Arbitration OverviewArbitration Overview Arbitration boundaries:Arbitration boundaries:

The parties’ arbitration agreementThe parties’ arbitration agreement Applicable statutes: Applicable statutes:

Federal Arbitration Act (9 USC Federal Arbitration Act (9 USC §§§§1-16)1-16) Texas Arbitration Act (TCPRC Chapter 171)Texas Arbitration Act (TCPRC Chapter 171)

Admin. agency rules & procedures (e.g. Admin. agency rules & procedures (e.g. AAA/JAMS)AAA/JAMS)

The arbitrator’s authority derives primarily from The arbitrator’s authority derives primarily from the contractual agreement of the parties—draft the contractual agreement of the parties—draft wisely!wisely!

Nafta Traders, Inc. v. Quinn, Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84 (Tex. 339 S.W.3d 84 (Tex. 2011)2011)

Arbitration vs. LitigationArbitration vs. Litigation Major differences between arbitration & traditional Major differences between arbitration & traditional

judicial litigation:judicial litigation: Faster (usually—ideally!)Faster (usually—ideally!) Somewhat less formalSomewhat less formal No juriesNo juries Limited discovery (or sometimes no discovery)Limited discovery (or sometimes no discovery) Rules of evidence inapplicableRules of evidence inapplicable Fewer procedural requirementsFewer procedural requirements Very broad arbitrator discretionVery broad arbitrator discretion Variable form of award, usually at litigants’ Variable form of award, usually at litigants’

optionoption Very limited grounds for appeal on substantive Very limited grounds for appeal on substantive

groundsgrounds

Arbitrator SelectionArbitrator Selection Arbitrator selection / appointment process:Arbitrator selection / appointment process:

Party appointed panelsParty appointed panels Appointment from list(s)Appointment from list(s) Party agreement Party agreement $$$ Single Arbitrator vs. 3-Person Panel$$$ Single Arbitrator vs. 3-Person Panel

Arbitrator disclosure requirementsArbitrator disclosure requirements ASAP - Provide list of parties, counsel, ASAP - Provide list of parties, counsel,

related entities, interested persons, likely related entities, interested persons, likely witnesseswitnesses

Ongoing supplementation & disclosure Ongoing supplementation & disclosure obligation – Parties and arbitratorobligation – Parties and arbitrator

Parties’ failure to provide information can Parties’ failure to provide information can result in delays, reappointmentresult in delays, reappointment

Management ConferenceManagement Conference

Parties can design arbitration to save costs while Parties can design arbitration to save costs while achieving fully developed caseachieving fully developed case

Involve corporate representatives/in-house Involve corporate representatives/in-house counselcounsel

Scheduling OrderScheduling Order Discovery - Discovery - $$$ Limit Depositions $$$ Limit Depositions Motions - Motions - $$$ Motion Practice limits$$$ Motion Practice limits Document Exchange Document Exchange $$$ Informal, voluntary$$$ Informal, voluntary Joint Exhibit Lists Joint Exhibit Lists Form of Award Form of Award $$$ don’t require findings of $$$ don’t require findings of

fact/conclusions of lawfact/conclusions of law

DiscoveryDiscovery Don’t treat arbitration like traditional Don’t treat arbitration like traditional

litigationlitigation Informal, voluntary disclosures and Informal, voluntary disclosures and

document exchangedocument exchange Limit number of requests, Limit number of requests,

interrogatoriesinterrogatories Depositions – limit number, durationDepositions – limit number, duration Shorten response deadlinesShorten response deadlines Electronic discoveryElectronic discovery Address discovery disputes quicklyAddress discovery disputes quickly

Motion PracticeMotion Practice

Dispositive motions– use sparinglyDispositive motions– use sparingly Clear questions of law (e.g., statute Clear questions of law (e.g., statute

of limitations)of limitations) Possible grounds to overturn award Possible grounds to overturn award

under FAA – failure to consider all under FAA – failure to consider all relevant evidencerelevant evidence

Significantly increases arbitrator’s Significantly increases arbitrator’s study time – study time – and parties’ $$$and parties’ $$$

BriefingBriefing

Address key points only—avoid Address key points only—avoid “kitchen sink briefs”“kitchen sink briefs”

If you’ve briefed it once, resist the If you’ve briefed it once, resist the temptation to brief it againtemptation to brief it again

Attach key cases – highlightedAttach key cases – highlighted Replies, surreplies – enough is enoughReplies, surreplies – enough is enough Shorter is better—the more you write, Shorter is better—the more you write,

the more it coststhe more it costs

AwardAward

Form of award: simple, reasoned, Form of award: simple, reasoned, detaileddetailed

Findings of Fact/ConclusionsFindings of Fact/Conclusions Assist the arbitrator: Assist the arbitrator:

timelinetimeline cast of characterscast of characters key documentskey documents concise statement of claims and relief concise statement of claims and relief

requestedrequested

Ethical ChallengesEthical Challenges

Pro se Pro se claimantsclaimants SpoliationSpoliation Civility/Civility/

ProfessionalismProfessionalism Informal doesn’t Informal doesn’t

mean mean ex parteex parte Conflicts – multiple Conflicts – multiple

party representationparty representation

If I Could Tell Parties to Do orIf I Could Tell Parties to Do orDon’t Do One Thing in Don’t Do One Thing in

Arbitration ….Arbitration …. Avoid Repetition – cumulative Avoid Repetition – cumulative

witnesses, documents, multiple witnesses, documents, multiple briefsbriefs

Be CivilBe Civil Organize Exhibits – key docs, avoid Organize Exhibits – key docs, avoid

duplicatesduplicates Provide Marked Deposition Excerpts – Provide Marked Deposition Excerpts –

not the full depositionnot the full deposition Tell the arbitrator Tell the arbitrator clearlyclearly what you’re what you’re

asking forasking for

Trends/Legislative ActivityTrends/Legislative Activity

Pending legislation—Arbitration Pending legislation—Arbitration Fairness Act reintroduced May 2011 Fairness Act reintroduced May 2011 (Sen. Franken)(Sen. Franken)

Attacks on arbitration—still out thereAttacks on arbitration—still out there Legislative Education – slowly Legislative Education – slowly

workingworking Criticism of Arbitration – cost, time. Criticism of Arbitration – cost, time.

It’s in the parties’ control!It’s in the parties’ control!

“In fighting over the little problems, we often lose sight of the big ones!” --Danny Patel

Published in Dispute Resolution Magazine, Summer 2010, by Published in Dispute Resolution Magazine, Summer 2010, by the American Bar Association.the American Bar Association.