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Case Preparation and Presentation: A Guide for Arbitration Advocates and Arbitrators - Softcover

 
Price:
$40.00
ISBN: 978-1-937518-26-4
Author: Jay E. Grenig and Rocco M. Scanza
Page Count: 371
Published: June 2013
Media Desc: 1 Softcover Volume
Qty:
 
 
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Description

 A Publication of the American Arbitration Association and the Scheinman Institute on Conflict Resolution,  Cornell University

Arbitration advocates uniformly place great emphasis on case preparation. Case Preparation and Presentation: A Guide for Arbitration Advocates and Arbitrators can be used to help prepare parties and their advocates in a wide range of arbitration cases including labor, employment and commercial arbitrations and will provide lawyers and non-lawyers alike with the focus and direction to maximize their chances of obtaining a good result in arbitration. In this book readers will find coverage on the following topics:

• Developing a case theory and case theme
• Commencing the arbitration process
• Selecting an arbitrator and scheduling the hearing
• Evaluating and presenting evidence
• Preparing for the arbitration hearing
• Conducting the arbitration hearing
• Making and responding to objections
• Examination and cross-examination of witnesses

 

 

Table of Contents

TABLE OF CONTENTS

PREFACE

ABOUT THE AUTHORS


CHAPTER 1. INTRODUCTION

§ 1:01 Generally
§ 1:02 Advantages and Disadvantages of Arbitration
§ 1:03 Reducing the Costs of Arbitration
§ 1:04 Arbitration Rules
§ 1:05 Representation
§ 1:06 Determining Whether a Dispute Is Arbitrable
§ 1:07 Deciding Whether to Arbitrate

CHAPTER 2. STATUTORY BASES FOR ARBITRATION

§ 2:01 Common Law Origins of Arbitration
§ 2:02 Uniform Arbitration Act and Revised Uniform Arbitration Act
§ 2:03 State Arbitration Laws
§ 2:04 Federal Arbitration Act
§ 2:05 Section 301 of the Labor Management Relations Act

CHAPTER 3. INVESTIGATING

A. INTRODUCTION
§ 3:01 Generally
§ 3:02 Investigation Checklist
B. DOCUMENTS
§ 3:03 Arbitration Clause
§ 3:04 Documents Initiating Arbitration
§ 3:05 Contract Clauses
§ 3:06 Disposition of Previous Grievances
§ 3:07 Grievance Meeting Notes
§ 3:08 Disciplinary Records
§ 3:09 Other Arbitration Awards
C. INTERVIEWS
§ 3:10 Generally
§ 3:1 Interviewer’s Personality, Attitude and Manner of Asking Questions
§ 3:1 Legal and Ethical Principles
§ 3:13 Time and Place
§ 3:14 Planning and Researching
§ 3:15 Structure
§ 3:16 Types of Questions
§ 3:17 Sequence of Questions
§ 3:18 Verbal and Nonverbal Communication
§ 3:19 Effective Communication
§ 3:20 Employees of an Opposing Party
§ 3:21 Former Employees of an Opposing Party
D. BARGAINING HISTORY
§ 3:22 Generally
E. CUSTOM, USAGE, AND PAST PRACTICE
§ 3:23 Generally
F. SITE VISITS
§ 3:24 Generally
G. REAL EVIDENCE
§ 3:25 Generally

CHAPTER 4. DEVELOPING A CASE THEORY AND A CASE THEME

§ 4:01 Generally
§ 4:02 The Legal Theory
§ 4:03 Complainant’s Legal Theory
§ 4:04 Respondent’s Legal Theory
§ 4:05 The Factual Theory
§ 4:06 Claimant’s Factual Theory
§ 4:07 Respondent’s Factual Theory
§ 4:08 Identifying Opposing Theories and Evidence
§ 4:09 Using Case Theory in Preparing and Presenting Your Case
§ 4:10 Developing a Case Theme

CHAPTER 5. COMMENCING THE ARBITRATION PROCESS

A. INTRODUCTION
§ 5:01 Generally
B. DEMAND FOR ARBITRATION
§ 5:02 Generally
§ 5:03 Sufficiency
§ 5:04 Timeliness
§ 5:05 Service
§ 5:06 Amendment
C. RESPONSE TO DEMAND FOR ARBITRATION
§ 5:07 Generally
§ 5:08 Timeliness
§ 5:09 Objections
§ 5:10 Affirmative Defenses
§ 5:11 Counterclaims
§ 5:12 Arbitrating under Protest
D. SUBMISSION AGREEMENT
§ 5:13 Generally
E. LABOR ARBITRATION
§ 5:14 Generally
§ 5:15 Grievance Procedure
§ 5:16 Appeal to Arbitration
F. PARTIES
§ 5:17 Joinder of Necessary Parties
§ 5:18 Substitution of Parties
§ 5:19 Class Actions

CHAPTER 6. SELECTING AN ARBITRATOR AND SCHEDULING THE HEARING

A. SELECTING AN ARBITRATOR
§ 6:01 Generally
§ 6:02 Considerations
§ 6:03 Categories Of Arbitrators
§ 6:04 Single Arbitrator Or Panel
§ 6:05 Procedure
§ 6:06 Disclosures And Disqualification
§ 6:07 Vacancies
B. SCHEDULING HEARINGS
§ 6:08 Hearing Location
§ 6:09 Hearing Date and Time

CHAPTER 7. UNDERSTANDING EVIDENCE

A. INTRODUCTION
§ 7:01 Generally
§ 7:02 Applicable Rules of Evidence
B. BURDEN OF PROOF
§ 7:03 Generally
§ 7:04 Burden of Producing Evidence
§ 7:05 Burden of Persuasion
§ 7:06 Quantum of Proof
§ 7:08 Shifting Burden of Proof
§ 7:09 Labor-Management Arbitrations
C. TYPES OF EVIDENCE
§ 7:10 Generally
§ 7:11 Sworn Testimony
§ 7:12 Real Evidence
§ 7:13 Documentary Evidence
§ 7:14 Demonstrative Evidence
§ 7:15 Direct and Circumstantial Evidence
§ 7:16 Inferences
§ 7:17 Presumptions
§ 7:18 Arbitral Notice
§ 7:19 Stipulations
§ 7:20 Prior Arbitration Awards
D. WITNESSES
§ 7:21 Witness Credibility
§ 7:22 Missing Witnesses
E. ADMISSIBILITY OF EVIDENCE
1. INTRODUCTION
§ 7:23 Generally
§ 7:24 Objections
2. RELEVANCE AND MATERIALITY
§ 7:25 Generally
§ 7:26 Parol Evidence
§ 7:27 Character for Honesty and Truthfulness
§ 7:28 Character and Habit
§ 7:29 Custom and Usage; Past Practice
§ 7:30 Work Record and Past Misconduct
3. RELIABILITY
§ 7:31 Hearsay
§ 7:32 Best Evidence Rule
§ 7:33 Medical Evidence
§ 7:34 Alcohol and Drug Offenses
4. OPINION TESTIMONY
§ 7:35 Generally
§ 7:36 Lay Witnesses
§ 7:37 Expert Witnesses
§ 7:38 Polygraphs
5. RECORD
§ 7:39 Evidence Received after Hearing
§ 7:40 Translators
6. FUNDAMENTAL FAIRNESS
§ 7:41 Informants
§ 7:42 Affidavits and Declarations
§ 7:43 Parallel Criminal Proceedings
§ 7:44 Offers of Settlement or Compromise
§ 7:45 New Evidence
§ 7:46 Surprise Evidence
§ 7:47 Privileged Communications
§ 7:48 Advocate as a Witness
§ 7:49 Improperly Obtained Evidence

CHAPTER 8. PREPARING FOR THE ARBITRATION HEARING

A. INTRODUCTION
§ 8:01 Generally
§ 8:02 Documents Initiating Arbitration
§ 8:03 Interview or Grievance Meeting Notes
§ 8:04 Contract Clauses
§ 8:05 Location
§ 8:06 Exhibits
B. DECIDING ON YOUR APPROACH
§ 8:07 Generally
§ 8:08 Determining What Facts You Will Need to Establish
C. SELECTING AND EVALUATING WITNESSES
§ 8:09 Generally
§ 8:10 Identifying Potential Witnesses
§ 8:11 Interviewing Potential Witnesses
§ 8:12 Preliminary Selection of Witnesses
§ 8:13 Final Selection of Witnesses
§ 8:14 Witnesses and Needed Proof
D. PREPARING WITNESSES
§ 8:15 Generally
§ 8:16 Advice to Witnesses
E. INFORMATION EXCHANGE OR DISCOVERY
§ 8:17 Generally
§ 8:18 Discovery from Third Parties
§ 8:19 Rules Governing Information Exchange
§ 8:20 Depositions
§ 8:21 Information Exchange in Labor Arbitrations
F. SUBPOENAS
§ 8:22 Documents
§ 8:23 Witnesses
G. ARRANGING FOR COURT REPORTERS
AND TRANSLATORS
§ 8:24 Court Reporters
§ 8:25 Translators
H. REPRESENTATION
§ 8:26 Generally
I. PREHEARING OR ADMINISTRATIVE
CONFERENCE
§ 8:27 Generally
§ 8:28 Motions
§ 8:29 Prehearing Conference Checklist

CHAPTER 9. CONDUCTING THE ARBITRATION
HEARING
A. INTRODUCTION
§ 9:01 Generally
§ 9:02 Notice of Hearing
§ 9:03 Hearing Room
§ 9:04 Arriving at the Hearing
§ 9:05 Ex Parte Hearings
§ 9:06 Oath of Arbitrator
§ 9:07 Preliminary Matters
§ 9:08 Consolidation of Arbitration Proceedings
B. ATTENDANCE AT THE HEARING
§ 9:09 Generally
§ 9:10 Counsel for Grievant
§ 9:11 Arbitrators
C. ORDER OF PROCEEDINGS
§ 9:12 Generally
§ 9:13 Labor Arbitration
§ 9:14 Arbitrability
D. THE ISSUE
§ 9:15 Generally
§ 9:16 Labor Arbitration—Generally
§ 9:17 Labor Arbitration—Typical Statements of the Issue
E. WITNESSES
§ 9:18 Compelling Attendance of Witnesses
§ 9:19 Scheduling Witnesses
§ 9:20 Sequestering Witnesses
§ 9:21 Witness Oaths
F. EXHIBITS
§ 9:22 Joint Exhibits
§ 9:23 Copies of Exhibits
§ 9:24 Putting Exhibits in the Record
G. OPENING STATEMENTS
§ 9:25 Generally
§ 9:26 Technique
§ 9:27 Elements
H. CONDUCT AT THE HEARING
§ 9:28 Generally
§ 9:29 Bad Habits

CHAPTER 10. MAKING AND RESPONDING

TO OBJECTIONS
A. INTRODUCTION
§10:01 Generally
B. MAKING OBJECTIONS
§ 10:02 Deciding Not to Object
§ 10:03 Time for Objecting
§ 10:04 Technique for Objecting
C. RESPONDING TO OBJECTIONS
§ 10:05 Generally
D. RESPONDING TO ARBITRATOR’S RULING
§ 10:06 Generally
E. MOTIONS TO STRIKE
§ 10:07 Generally
§ 10:08 Technique
F. OFFER OF PROOF
§ 10:09 Generally
G. OBJECTIONS TO FORM OF QUESTION
§ 10:10 Ambiguous, Vague, or Unintelligible
§ 10:11 Argumentative Question
§ 10:12 Compound
§ 10:13 Leading
§ 10:14 Manner of Cross-Examination
§ 10:15 Narrative
H. SUBJECT MATTER OF QUESTION
§ 10:16 Asked and Answered
§ 10:17 Assumes Fact Not in Evidence
§ 10:18 Cross-Examination Exceeds Scope of Direct Examination
§ 10:19 Defective Hypothetical Question
§ 10:20 Misquotes Witness or Misstates Evidence
I. SUBSTANCE OF EVIDENCE SOUGHT
§ 10:21 Best Evidence Rule
§ 10:22 Conclusion of Law or Fact
§ 10:23 Document Speaks for Itself
§ 10:24 Hearsay
§ 10:25 Improper Opinion
§ 10:26 Incompetent Witness
§ 10:27 Invades Province of Arbitrator
§ 10:28 Irrelevant
§ 10:29 New Evidence
§ 10:30 Offer of Compromise or Settlement
§ 10:31 Parol-Evidence Rule
§ 10:32 Privileged Communication
J. FAILURE TO LAY PROPER FOUNDATION
§ 10:33 Authentication of Document
§ 10:34 Bases of Opinion
§ 10:35 Business Records
§ 10:36 Qualifications of Expert
§ 10:37 Substance of Conversation
K. IMPROPRIETY OF CIRCUMSTANCES
§ 10:38 Answer Not Responsive
§ 10:39 Improper Conduct of Advocates or Others

CHAPTER 11. OFFERING DOCUMENTARY, PHYSICAL AND DEMONSTRATIVE EVIDENCE

A. INTRODUCTION
§ 11:01 Generally
B. TECHNIQUES FOR INTRODUCING
EXHIBITS IN EVIDENCE
§ 11:02 Generally
§ 11:03 Steps
§ 11:04 Marking the Exhibit for Identification
§ 11:05 Authenticating or Identifying the Exhibit
§ 11:06 Offering Exhibit in Evidence
§ 11:07 Voir Dire
C. KEEPING TRACK OF EXHIBITS
§ 11:08 Generally
D. PUBLIC RECORDS
§ 11:09 Generally
§ 11:10 Obtaining Certified Copies
§ 11:11 Introducing a Certified Copy
§ 11:12 Writing by Public Employee
E. BUSINESS RECORDS
§ 11:13 Generally
§ 11:14 Method of Authenticating
F. MEDICAL RECORDS
§ 11:15 Generally
§ 11:16 Health Insurance Portability and Accountability Act (HIPAA)
G. LETTERS AND OTHER PRIVATE WRITINGS
§ 11:17 Generally
§ 11:18 Witness to Execution of Document
§ 11:19 Witness Familiar with Signature or Handwriting
§ 11:20 Reply-Letter Doctrine
§ 11:21 Copy of Letter
H. REFRESHING RECOLLECTION
§ 11:22 Generally
I. FORMER TESTIMONY
§ 11:23 Generally
J. DIAGRAMS
§ 11:24 Generally
§ 11:25 Testimony of Person Who Prepared Diagram
§ 11:26 Testifying About Diagram
K. ELECTRONIC EVIDENCE
§ 11:27 Generally
§ 11:28 Electronically Stored Business Records
§ 11:29 Electronic Recordings
§ 11:30 E-Mail
§ 11:31 Web Pages
§ 11:32 Digital Photographs
§ 11:33 Facsimile Transmissions
L. LABORATORY TEST RESULTS
§ 11:34 Generally
M. SUMMARY EXHIBITS
§ 11:35 Generally
N. PHYSICAL EVIDENCE
§ 11:36 Generally
O. PLANT VISITS
§ 11:37 Generally

CHAPTER 12. DIRECT EXAMINATION OF WITNESSES

A. INTRODUCTION
§ 12:01 Generally
B. PREPARATION
§ 12:02 Generally
§ 12:03 Determining What You Must Prove
§ 12:04 Writing Out the Questions
§ 12:05 Preparing an Outline
C. TACTICS
§ 12:06 Generally
§ 12:07 Order of Witnesses
§ 12:08 Order of Testimony
§ 12:09 Reacting to Objections
§ 12:10 Disclosing Weaknesses in Your Case
D. BEGINNING DIRECT EXAMINATION
§ 12:11 Calling a Witness to Testify
§ 12:12 Identifying the Witness
§ 12:13 Laying the Foundation
E. ASKING QUESTIONS
§ 12:14 Generally
§ 12:15 Simple Questions
§ 12:16 Narrative Questions
§ 12:17 Leading Questions
§ 12:18 Negative Questions
§ 12:19 Locations and Directions
§ 12:20 Conversations
F. MEMORY PROBLEMS
§ 12:21 Generally
§ 12:22 Refreshing Recollection
§ 12:23 Past Recollection Recorded
G. OPINIONS OF AN EXPERT WITNESS
§ 12:24 Qualifying the Witness
§ 12:25 Opinion Based on Facts Known by Witness
§ 12:26 Opinion Based on Hypothetical Question
§ 12:27 Opinion Based on Review of Records
H. DIRECT EXAMINATION OF ADVERSE PARTY
§ 12:29 Disciplined Employee
§ 12:30 Other Witnesses
I. REDIRECT EXAMINATION
§ 12:31 Generally
§ 12:32 Purpose
§ 12:33 Technique

CHAPTER 13. CROSS-EXAMINATION OF WITNESSES
A. INTRODUCTION
§ 13:01 Generally
§ 13:02 Scope and Manner
B. THE DECISION TO CROSS-EXAMINE
§ 13:03 Generally
§ 13:04 Use of Friendly Witness
C. OBJECTIVES
§ 13:05 Generally
§ 13:06 Discrediting the Witness
§ 13:07 Obtaining Admissions from the Witness
§ 13:08 Bringing out All the Facts
D. PREPARATION
§ 13:09 Generally
§ 13:10 Take Notes
§ 13:11 Watch
§ 13:12 Listen
E. TECHNIQUE
§ 13:13 Beginning Cross-examination
§ 13:14 Sequence of Questions
§ 13:15 Short, Simple Questions
§ 13:16 Leading Questions
§ 13:17 Limited Topics
§ 13:18 Diversion from Objective
§ 13:19 The Unknown Answer
§ 13:20 Responsive Answers
§ 13:21 Repeating Testimony
§ 13:22 Big Lie
§ 13:23 Bad Habits
§ 13:24 Avoiding “Why” Questions
§ 13:25 Maintaining Control
§ 13:26 Listening to the Answers
§ 13:27 Knowing When to Stop
F. IMPEACHMENT OF WITNESSES
§ 13:28 Generally
§ 13:29 Prior Inconsistent Statements—Generally
§ 13:30 Prior Inconsistent Statements--Form of Prior
Statement
§ 13:31 Prior Inconsistent Statements—Time, Place, and Circumstances
§ 13:32 Prior Inconsistent Statements—Signature
§ 13:33 Prior Inconsistent Statements—Questions
§ 13:34 Specific Contradiction
§ 13:35 Bias or Prejudice
§ 13:36 Character
§ 13:37 Capacity or Opportunity to Observe
§ 13:38 Prior Conversations with Advocate
G. EXPERT WITNESSES
§ 13:39 Generally
H. ARGUMENTATIVE QUESTIONS
§ 13:40 Generally
I. RECROSS
§ 13:41 Generally

CHAPTER 14. CONCLUDING THE HEARING
A. INTRODUCTION
§ 14:01 Generally
B. REBUTTAL
§ 14:02 Generally
§ 14:03 Determining the Need for Rebuttal
C. CLOSING ARGUMENT
§ 14:04 Generally
§ 14:05 Techniques
D. POST-HEARING BRIEFS
§ 14:06 Generally
§ 14:07 Deciding Whether to File Briefs
§ 14:08 Organizing the Brief—Generally
§ 14:09 Organizing the Brief—The Caption
§ 14:10 Table of Contents
§ 14:11 Table of Authorities Cited
§ 14:12 Stipulations
§ 14:13 Exhibits
§ 14:14 Introduction
§ 14:15 Issue
§ 14:16 Applicable Contract Provisions
§ 14:17 Statement of the Facts
§ 14:18 Summary of Arguments
§ 14:19 Summary of Other Party’s Contentions
§ 14:20 Argument
§ 14:21 Remedy
§ 14:22 Conclusion
§ 14:23 Signature and Date
§ 14:24 Filing Briefs—Generally
§ 14:25 Filing Briefs—Time Limits
§ 14:26 American Arbitration Association
E. LETTER BRIEFS
§ 14:27 Generally
F. REPLY BRIEFS
§ 14:28 Generally
§ 14:29 Deciding Whether to File a Reply Brief
§ 14:30 Techniques for Writing a Reply Brief
G. STATING FACTS PERSUASIVELY
§ 14:31 Generally
§ 14:32 Order of Presentation
§ 14:33 Accuracy
§ 14:34 Argument
§ 14:35 Absence of Evidence
§ 14:36 Unfavorable Evidence
§ 14:37 References to the Transcript
H. MAKING PERSUASIVE ARGUMENTS
§ 14:38 Generally
§ 14:39 Tone of Argument
§ 14:40 Dividing Your Argument into Sections
§ 14:41 Beginning Your Argument
§ 14:42 Addressing Weaknesses in Your Case
§ 14:43 Making Personal Attacks
§ 14:44 Emphasizing Points
§ 14:45 Using Other Arbitration Awards—Generally
§ 14:46 Using Other Arbitration Awards—Awards Involving Same Parties as in Present Dispute
§ 14:47 Using Other Arbitration Awards—Awards Involving Different Parties Than in Present Dispute
§ 14:48 Using Other Arbitration Awards—Analyzing Awards
§ 14:49 Using Other Arbitration Awards—Referring to Arbitration Awards
§ 14:50 Using Quotations
§ 14:51 Making Alternative Arguments
§ 14:52 Anticipating the Other Party’s Arguments
I. NEW EVIDENCE
§ 14:53 Generally
§ 14:54 Responding to New Evidence in Other Party’s Brief
§ 14:55 Requesting the Hearing Be Reopened
J. SAMPLE BRIEFS
§ 14:56 Employer Post-Hearing Brief
§ 14:57 Union Post-Hearing Brief

CHAPTER 15. AFTER THE AWARD
A. INTRODUCTION
§ 15:01 Generally
B. ARBITRATOR’S ROLE
§ 15:02 Generally
§ 15:03 Functus Officio
§ 15:04 Retained Jurisdiction
C. CLARIFICATION, MODIFICATION,
OR CORRECTION OF AWARD
§ 15:05 Interpretation or Clarification
§ 15:06 Modification or Correction—Application to Arbitrator
§ 15:07 Modification or Correction—Application to Court
D. VACATION OF AWARD
§ 15:08 Generally
§ 15:09 Procedure
§ 15:10 Grounds
E. CONFIRMATION OF AWARD
§ 15:11 Generally
§ 15:12 Procedure
F. DUTY OF FAIR REPRESENTATION
§ 15:13 Generally

APPENDICES
A. Federal Arbitration Act
B. Code of Ethics for Arbitrators in Commercial Disputes
C. Code of Professional Responsibility for Arbitrators of Labor-Management Disputes
D. A Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising out of the Employment Relationship

INDEX 

Author Detail

Rocco M. Scanza and Jay E. Grenig both serve on the American Arbitration Association's labor panel.


Mr. Scanza is an Attorney, Arbitrator and Mediator of labor and employment disputes. He is also the Executive Director of Cornell University’s Scheinman Institute on Conflict Resolution, where he teaches courses in workplace alternative dispute resolution. Mr. Scanza was formerly a national Vice President at the American Arbitration Association. He graduated from Queens College in New York City and Loyola Law School of Los Angeles. He lives and works in Ithaca, N.Y.

Mr. Grenig is a Professor of Law at Marquette University Law School. He has served as an arbitrator or mediator in over 2,000 labor and employment disputes. A member of the National Academy of Arbitrators, the American Law Institute, and the Order of the Coif, Mr. Grenig is also a fellow of the College of Labor and Employment Lawyers. He formerly chaired the Labor and Employment Law Section of the Association of American Law Schools and served as a consultant to the National Commission on Employment Policy. He has written or co-written numerous books and articles.

 

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