EFFECTIVE PRESENTATION OF ARBITRATION, BOARD, AND COURT CASES: LESSONS LEARNED (GOOD AND BAD) FROM 20 YEARS IN THE TRENCHES

There are no magic bullets for acquiring effective skills for presenting cases to Arbitrators, the N.L.R.B., or the Courts. It is primarily a function of hard work, personal experience, and talking with and observing more experienced practitioners. The best lessons are not always learning what works, it's often learning the hard way what does not work.

The ideas explained below are focused on Arbitration cases, but are just as applicable to N.L.R.B. and Court cases. The references to factfinders include arbitrators, judges, and juries. This list is not exhaustive but hopefully contains useful ideas and reminders.

OPENING STATEMENTS:

1. Set the theme of your case.

Put forth a roadmap for the factfinder. This theme should be woven through your opening, direct and cross-examination, and closing statement.

2. First impressions matter.

Generally, the factfinder knows nothing or very little prior to this point and this is when they are most attentive.

3. Don't waive opening statements.

Practitioners often waive opening statements. This can be harmful, particularly when the employer has the burden of proof, opens, and presents its case first. If you don't open you may be faced with an insurmountable hurdle. Surveys have shown that up to 50% of jurors have decided the case after opening statements. This is not as big a problem with arbitrators. However, this can still be a problem when at the point you start your case the arbitrator has not heard your theory of the case, but has heard the employer's theory in its opening and through employer witnesses.

4. Some Elements of An Opening.

a. Humanize the grievant, introduce him/her.

b. Discuss the strengths and weaknesses in your case.

c. Discuss weaknesses in employer case.

d. Preempt the employer. If there are bad facts, discuss them head on. The employer certainly will, don't act like you're hiding from those facts.

e. Simplify any workplace terms that might be unfamiliar to the factfinder and important to the case.

f. If important, discuss burden of proof issues or any legal issues that need to be understood.

g. Weave your theme through the opening.

h. Indicate what relief you are requesting.

5. Preparation and Presentation.

a. Begin preparing your opening and closing when you first meet the grievant and the union rep. Early on you should be thinking what is the theme you want to be putting forth in my opening and closing arguments.

b. Tell a story, don't be argumentative with the arbitrator or the employer attorney.

c. Don't read verbatim from notes, have an outline in front of you with major points and catch phrases.

d. Be concise and to the point, avoiding minute details not relevant to the case and which simply lose the factfinder.

DIRECT EXAMINATION:

1. Make sure the grievant and union rep are prepared to testify, and that they understand the procedure, including the types of questions they will face on cross examination.

2. Use direct to humanize your client (family, seniority etc.) and to tell the story.

3. As a general rule present other witnesses who support your client first. The factfinder often scrutinizes the grievant more closely, but this is less of a problem if other witnesses can testify first with supportive testimony establishing many of the key facts, and then the grievant can simply confirm those facts.

4. Use documents with witnesses to bolster your case.

CROSS EXAMINATION:

1. Have checklist ready for cross before you hear the direct testimony.

Do not solely cross examine based on the direct testimony. There are usually only a few points of helpful testimony you can get out of adverse witnesses.

2. Do not do cross examination simply because it's your turn to talk.

This is a common tactic of lawyers in jury trials. Sometimes, the best cross examination is no cross examination.

3. Do not simply rehash and repeat the direct examination.

This often reemphasizes bad testimony. ("Please repeat all the terrible things you just said about my client".) One exception to this is if you believe you can clearly impeach the witness based on prior inconsistent statements or conduct.

4. Start your cross strong and finish strong.

The beginning and end of cross should consist of helpful points, sometimes repeating them.

5. Don't jump around haphazardly.

Using your checklist and notes from the direct try to logically reach specific goals.

6. Use Leading Questions to Control the Witness.

Use questions requiring yes or no answers. With limited exceptions avoid open ended questions like "Why?' or "Please explain that answer?"

7. General Areas of Cross.

a. Credibility.

b. Bias.

c. Opportunity to Observe.

d. Evasiveness.

e. Memorized testimony.

f. Disparate treatment.

g. With some witnesses, cross can provide facts supporting your theme.

8. As a general rule don't ask a question on cross examination that you don't know the answer to.

As you obtain more experience there are times when you can ask such questions if you are relatively certain you can handle any answer that may be possible

9. Don't argue with or beat up on a lay witness.

You may know the witness is a schmuck or a liar but it is dangerous to get too aggressive with such a witness before the factfinder knows that also.

10. Generally ease into cross initially to let the witness feel comfortable.

Comfortable witnesses are more forthcoming, the examination can get more aggressive and contentious as you progress, if needed.

CLOSING STATEMENTS:

In arbitration this practice varies from arbitrator to arbitrator, some preferring not to hear closing statements when there will be written posthearing submissions. Whether this is in writing or oral consider the following.

1. Before the hearing adjourns ask the arbitrator if there is any questions s/he has or any particular issues that need to be addressed more completely. This is particularly important if the arbitrator has been sleeping, has gotten off on tangents, or appears to have missed issues. (Of course, I've never met such an arbitrator).

2. Summarize the critical evidence.

Don't ignore evidence that hurts, address it head on and explain how it does not change the result you seek. Don't spend a lot of time addressing minute points that have no relevance to the case.

3. Restate the theme of your case.

Don't lose the forest through the trees, don't let marginally relevant minute details bury your theme.

4. Clearly request specific relief.

Don't just request that the grievance be sustained, if you can put a dollar amount on the relief requested or be more specific in other relief requested do so in order to avoid trips back to the arbitrator.

GENERAL OBSERVATIONS:

1. There are three types of cases you should settle because it will be hard to convince a factfinder that you should win.

a. Your client is a terrible witness, this could involve credibility issues or issues of demeanor.

b. Other union witnesses and/or union representatives contradict the grievant's story.

c. You would have fired this person.

2. Be aware of the reactions of the factfinder to your arguments and the employer arguments, and to the direct and cross examination of witnesses.

3. Be Yourself. In terms of your style of presenting arguments and asking questions don't try to copy someone else's style, it will feel strained and not feel natural.

4. Try to have fun.

Most people don't get to fight for clients we care about and issues that have meaning. We are often privileged to be able to help union members and other workers when they most need it. Remember that when feeling stressed out.