Page 8 - Complex Litigation

S8 | MONDAY, MAY 22, 2017 | Complex Litigation
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How to Customize Arbitration For Complex Commercial Cases
the ef ciencies of arbitration. The default in arbitration is that there are no depositions (or possibly a limited number), interrogatories and notices to admit. Unless the parties agree that there should be something else—limited depositions or interrogatories, for example – it is more likely than not that the scheduling order will not provide for such.
Counsel, therefore, should consult with each other and see if there is agreement as to how to handle non-party witnesses and depositions, since neither the CPLR nor the Federal Arbitration Act provide for deposition subpoenas in arbitration (although provider rules might allow for such). If all counsel agree, it is likely that the arbitrator will accom- modate depositions in the scheduling order. Counsel may get some push-back, however, as arbitrators are schooled in balancing the economies that arbitration should provide with arbitration being a creature of the par- ties’ agreement (and, therefore, should be the “parties’ process”).
Although there is also no basis to obtain documents from a non-party, as the statutes speak to compelling a witness to testify at a hearing, one work-around is to ask the arbitra- tor to set a hearing date for the return date of a subpoena that seeks both testimony and documents. Tell the witness that the docu- ments are sought on that date only. Once the documents arrive, the hearing is adjourned.
Motions
Set a deadline for making a discovery motion (and include a cushion of time for the production of withheld materials so that they can be included in the hearing exhibits).
Is the case truly amenable to a dispositive motion? If so, set a deadline for making the motion (or to seek leave for such). Make sure that such motion practice will not scuttle the hearing dates. Counsel should » Page S11
BY ERICA B. GARAY
A ll too often, even skilled, experienced litigators fail to realize that arbitration is not merely a “court case” being heard
in a conference room but rather, a creature of contract that the attorneys can fashion to meet the needs of a particular case. Arbitra- tion presents a unique opportunity to custom- ize the pre-hearing, hearing and post-hearing stages. This is especially important for com- plex commercial cases. This article provides an outline for practitioners to do just that.
Selecting the Arbitrator
Let’s start by presuming that you have an arbitration clause that merely tells you what arbitration provider to use and, possibly, the rules which will govern the arbitration.
Having an arbitrator with the requisite experience is an invaluable tool to stream- line the case and make the proceedings more ef cient and economical. For example, do you want an appraiser or accountant to hear a val- uation case? Or would you prefer an attorney with experience handling valuation hearings?
ERICA B. GARAY is a member of NAM’s (National Arbi- tration and Mediation) Hearing O cer Panel. She is co-chair of the Alternative Dispute Resolution Section of the Nassau County Bar Association and chair of the ADR Practice Group of Meyer, Suozzi, English & Klein.
Do you want an arbitrator with experience in a particular industry (such as hospitality or restaurants or apparel) or with a particular type of contract or issue (e.g., licensing agree- ments or restrictive covenants)?
Preliminary Hearing Conference Call
Once the arbitrator is appointed, the next step is the pre-hearing conference call that will schedule the entire arbitration, including discovery, expert disclosures (if any), motion practice, the exchange of exhibits, and set the hearing dates. This is an important oppor- tunity for the advocate to frame the issues, realizing that the arbitrator may only have read the demand.
If the demand is bare-bones, this is an opportunity to request an “ampli cation” of the claim or to ask for an explanation of how damages are calculated. Similarly, claimant’s counsel should consider whether to ask for a statement from the respondent that sets forth the defenses being raised, so as to ensure that they are addressed.
At this early stage, a savvy practitioner can point out possible de ciencies of a plead- ing or limit proof at the hearing—and do so without making a motion. For example, if a demand sounds in tortious interference with contract, New York law requires that the customers whose contracts were interfered with be identi ed. If the demand does not do so, ask the arbitrator for claimant to be required to do so by a set date—and be sure
that the date is suf ciently in advance of the discovery deadlines, exchange of witness and exhibit lists and the hearing dates to ensure that respondent is on notice of what claims need to be addressed.
There are many ways to ensure that the case remains on track. During the initial scheduling call, counsel can suggest the fol- lowing be included:
• Are there pleading-related motions that would narrow the case including, for example, choice of law? Set a date for brie ng such issues.
• Are all the necessary parties joined? Set a date for adding parties.
• Do pleadings need to be amended? Set a deadline. If it is the demand, make sure you have a time set for responding. Make sure that the amended pleadings will be received in advance of the date for serving discovery demands.
• Expert disclosures: Set dates for identify- ing experts-in-chief and rebuttal experts, and for service of their reports and documents on which they rely.
• Should the case be handled in phases or bifurcated (so that there’s a cost-savings on discovery)? If so, should the discovery of future stages be deferred?
Discovery
The next stage, discovery, is an impor- tant opportunity to ensure that there is a balance between what the parties need and
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