India has over 31 million cases still awaiting to see the light of judgment, with almost 27 million of them pending before the subordinate judiciary. More than 12 million Indians await trial in criminal cases. On an average, it takes twenty years for a real estate or a land dispute to be resolved.
As far as business is concerned, although India has jumped up by 30 places and now ranks 100 on the World Bank rating on ‘ease of doing business’, it is still a long shot in India to start your own business. Even in the contract enforceability department, India stands at 178 out of 189 economies on the ease of enforcing contracts.
These are all facts from a report by NITI Ayog which make it clear that India has a long way to go. The report further talks about India’s judicial process in terms of court structure, case management, proceedings, the use of alternative dispute resolution, and things don’t look too great in that area either.
However, there is a glimmer of hope as reliance on ADR processes is not only speeding up but also bringing credible results. The most popular form of ADR, especially for businesses, is Arbitration, and it is highly preferred over litigation due to its time and cost-effective nature.
International commercial arbitration has largely become the realm of the professional practitioner and even in India more parties are opting for alternatives to conventional litigation and choosing arbitration primarily. However, as I noticed, there is an immense dearth of the practical or strategic aspects of arbitration, and any discussion on the subject is always restricted to academic questions. It is actively required to talk about the strategic and the “winning” aspect of arbitration, and hence the title of this post.
With the ever increasing scope in this field, its important to look at some things that all arbitration lawyers need to bear in mind to become a winning arbitration lawyer.
Choosing The Right Arbitrator/Panel
Do you really want the best arbitrator for the job? The answer could be ‘no’. What kind of an arbitrator do you need? Evaluate your case and consider how each individual candidate fits your goals. Do you want someone who understands why harsh actions are often necessary, even customary?
Then choose an arbitrator who has started and run businesses. Do you want to make an emotional appeal to the arbitrator to show that your hard working chef client has been treated unfairly? Then seek an arbitrator with a charitable, or public service background. Are you aiming for a strict interpretation of the law? Consider the candidate’s age. I believe people become more conservative with weathering and withering.
It is possible that no one is truly free from bias, since people tend to view the world through the prism of their life experiences. However, good arbitrators work hard to free themselves from preconceived prejudices of which they are aware. Subconscious bias probably cannot be exorcised.
All you can do is microscopically analyze the background of the prospective arbitrators and select the one who you think will most fairly judge your case.
Ace It In The Opening Stages
Mark Twain once remarked that “you only have one opportunity to make a good first impression.” Plato once said that “the beginning is the most important part of your work”. It holds inexplicably true when you think about the importance of the opening statement in an arbitration proceeding.
Successful arbitration requires persuasion and advocacy, and these demand attention not only on legal arguments but to details, to documents, and to facts—and from the very first moment of the arbitration. Your opening statement presents an opportunity to tell the story from your perspective. Perhaps more importantly, it is also an opportunity for you to begin to educate the Arbitrator. Use your opening statement to lay out your case and clearly define your damages (if any).
Opening statements can be used as road maps which will outline the evidences and rationale for the course of the arbitration. To learn the tricks of ruling the proceedings right from the opening stages, you can rely on materials like these for a thorough understanding. It is essential to stick to the letter of the action that is being arbitrated. It should be clear, to the point, and brief, and you shouldn’t put everything in your opening statement.
Build A Credibility With The Arbitrator
Arbitration has relaxed rules in terms of evidences and the formal nature of the proceedings. This is why the arbitrators and panels rely heavily on the counsel’s representations of the case. If your Arbitrator believes that you have misrepresented a certain fact of the case, or that a witness has testified falsely, or the contents of a material document are questionable, consider your case half lost.
This “intentional deceiving” can cause a huge blow to your credibility. Never say anything to an arbitrator unless you are absolutely sure it is correct. If there is a question you don’t know the answer to, say it, but don’t guess. Simply say, “I don’t know the answer but will get it for you promptly.” Acknowledging that you don’t know everything is a credibility-enhancer (not to say that you should frequently do it).
Learn The Art Of Effective Witness Examination
Smart cross-questioning tops the list of effective persuasive techniques with emphasizing focus on the facts through testimony from the witnesses. There is nothing like a good witness to bring the contents of a document to life in the mind of an arbitrator.
Arbitrators use their eyes and ears to judge the credibility of witnesses just as judges would during trial. It is just as important in arbitration for the witness to effectively communicate his or her message without non‐verbal distractions that could be interpreted by the arbitrator as indicators of dishonesty, incompetence, ill‐intent, or untrustworthiness.
For many witnesses, testifying can be unfamiliar territory. Your preparation of the witness should include having your witness ready and able to answer questions from the arbitrators. It is essential to invite others to interrupt and ask questions. Your witness must practice alternating between answering your, opposing counsel’s, and the arbitrators’ questions.
The more you can make them comfortable with the rules of the hearing, the more you can make them comfortable understanding how they can firmly, but with civility, stand up to the efforts of opposing counsel.
Its is encouraged to ask “introductory” type of questions. They give the witness a chance to establish credibility and build rapport with the arbitrator/panel. It is adivsable for the witnesses to be prepared clearly and concisely, and tell their story and explain critical issues with utmost conviction.
Take Advantage of The Relaxed Rules Of Evidence
In arbitration, the rules of evidence and procedure are generally more relaxed than in litigation. In many instances, a party can introduce evidence in an arbitration that would be inadmissible in litigation. Thus, do not assume that you should not present certain evidence because it is inadmissible.
Present the evidence and allow the Arbitrator to determine whether that evidence is compelling enough to be admitted. You would hate to find that you did not present the “smoking gun” for fear of it being inadmissible only to find that the Arbitrator’s ruling would have been different had that smoking gun been presented.
The general principle in arbitration is that the formal rules of evidence do not apply. Litigators who are new to arbitration don’t fully appreciate what this means. Unlike court verdicts, arbitration awards can not be challenged for admitting evidence improperly.
However, excluding relevant evidence might rise to the level of denying a party a full and fair hearing of a claim and could constitute grounds for vacating an award. So alter your expectations. Be prepared for the arbitrators to allow nearly everything into evidence and permit leading questions and narrative testimony for the sake of expediency. Therefore, introduce anything that may help your case even if you believe a judge might exclude it. Ask leading questions and take advantage of the informality of the process.
Establish A Roadmap For The Award
Use your closing argument, reinforce to the Arbitrator the facts that are most favorable to your case. Furthermore, end your closing argument by outlining exactly what you hope the Arbitrator will award. This is the last opportunity to present your case to the Arbitrator so be sure to leave a good impression.
For closing argument, put together a binder of the most important documents organized by the topics or themes of your argument. Highlight the key passages, and then have copies for the arbitrator and counsel. The binder will become the outline of your argument, freeing you from any notes.
More importantly, the arbitrator will be able to take the binder with her. When, several weeks later, it is time to write her Award, the arbitrator will be able to reference your binder — highlighted with the passages or damage analysis that support your case.
Overall, your best presentation in an arbitration proceeding can significantly differ from how you would present the same case in a formal trial. For all the considerations listed above, you need to be thoroughly prepared and we wish you all the luck!