Arbitration

JUDICIAL TEMPERAMENT by Bryan D. Coleman

Judicial temperament, composed of the ability to listen, sensitivity, open-mindedness, courtesy, patience, freedom from bias or prejudice, integrity, moral courage, legal ability and expertise, intelligence, wisdom, compassion, fairness, diligence, decisiveness and a commitment to equal justice, is that which separates a good fact finder from one who is unacceptable.  It can mean many things to various people, making the existence thereof particularly susceptible to manipulation by advocates and persons motivated to judge the fact finder.

Theoretically, parties and their counsel are well aware that there will be a “winner” and a “loser” in any litigation if it is pursued to a decision before a fact finder; however, if a fact finder has done his job well, the parties and counsel will be satisfied that they have received a fair hearing of the dispute, regardless of the fact finder’s ultimate decision.  Appropriate judicial temperament is thus not a matter of personality but a matter of commitment to be the embodiment of justice, showing respect and equal dignity to all that a fact finder may interact with.

Our system of justice, which is clearly moving in the direction of arbitration, as opposed to protracted litigation in courts, depends on our citizens’ faith and trust that arbitrators will decide disputes fairly, impartially, free from bias or prejudice, expeditiously and with the promised savings in time and money.  Citizens must have trust and respect for arbitrators; and, in return, arbitrators must respect all those they interact with, including the parties to the dispute, their attorneys, witnesses, staff, and members of the public.

The existence or non-existence of judicial temperament, in a given individual arbitrator, is highly subjective, but certain common principles are indispensable.  This does not mean that the arbitrator must be “Mr./Ms. Congeniality”, with a sparkling personality and good sense of humor.  It cannot be forgotten that the litigants have a right and expectation that the arbitrator will have the qualities of courage and decisiveness, balanced with the other more personable qualities.  The qualities of courage and decisiveness are indispensable if an arbitrator hopes to insure that the parties do not feel that the process is merely a “splitting of the baby”.

By virtue of the fact that arbitrations are relatively unsusceptible to appeal, barring questions of neutrality and the refusal to permit evidence to be presented, an arbitrator must strive to be the personification of justice; and, in return, the citizens and advocates will willingly place their faith and trust in the arbitrator.  If the arbitrator exhibits politeness, courtesy and a willingness to treat all with dignity, even in the face of the inherent human emotions that are present in the litigation process, the participants will recognize and appreciate this willingness.  Finally, if the foregoing is coupled with an attitude of genuine caring and willingness to listen carefully and fully to the evidence and the arguments of counsel, the arbitrator should rarely receive criticism for his judicial temperament.

ORDER OF PROCEEDING IN ARBITRATION

1. PLAINTIFF’S OPENING STATEMENT – Plaintiff generally summarizes and discusses the evidence to be forthcoming, including liability and damages
2. DEFENDANT’S OPENING STATEMENT – NOTE:  defendant may open at this point, or, more appropriately, defendant may request to reserve opening until the conclusion of plaintiff’s “case in chief.”
3. PLAINTIFF’S CASE IN CHIEF – Plaintiff presents the evidence to meet his burden of proof, including testimony, documents, statements, accident reports, photos, records, bills and reports of health care providers.  Any live testifying witness will be cross examined by Defendant’s representative, following Plaintiff’s representative “passing the witness” or concluding the first round of “direct examination”.  Thereafter, each party will take turns redirecting and recrossing the witness, until all parties have concluded their desired questions.  When each side finishes a turn, it is appropriate to say, “I pass the witness.”
4. PLAINTIFF RESTS – At the conclusion of Plaintiff’s case in chief, after all Plaintiffs’ evidence has been presented, Plaintiff will “rest”, which means that Plaintiff has concluded presenting his evidence.
5. DEFENDANT’S OPENING STATEMENT – Defendant generally summarizes and discusses the evidence to be forthcoming, including liability and damages, particularly emphasizing matters which discredit Plaintiff or Plaintiff’s theory of the case.
6. DEFENDANT’S CASE IN CHIEF – See Plaintiff’s case in chief, above.
7. DEFENDANT RESTS – At the conclusion of Defendant’s case in chief, after all the Defendant’s evidence has been presented, Defendant will “rest”, which means that Defendant has concluded presenting his evidence.
8. CLOSING STATEMENTS –  Each side will have the opportunity to summarize the evidence which supports his respective position and to argue what such evidence proves.  Plaintiff gets to go first and last, with Defendant having one opportunity in between.