ARBITRATION CLASS 4

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ARBITRATION CLASS 4

• SEPTEMBER 10, 2008
• EVIDENCE

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EVIDENCE AND THE ROLE OF ARBITRATION

• THE PURPOSE OF ARBITRATION IS MORE THAN JUST
  REACHING A DECISION
• THERE IS A THERAPEUTIC PURPOSE TO THE HEARING
  ITSELF
• HOW WOULD THIS EFFECT EVIDENTRY RULES?

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DO MORE RELAXED RULES MAKE FOR PROBLEMS

• REPETITIVE EVIDENCE
• LONGER HEARINGS
• UNRELIABLE INFORMATION
• UNPREDICTABILITY
• MORE DIFFICULTY IN PREPARING FOR YOUR CASE
• MORE DIFFICULTY IN ANTICIPATING YOUR OPPONENTS
  CASE
• MORE FUN

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THE MECHANICS OF MAKING OBJECTIONS

• SIT DOWN!
• DONT MAKE A SPEAKING OBJECTION
• STATE THE BASIS FOR YOUR OBJECTION FIRST
• STATE YOUR ARGUMENT REGARDING THE OBJECTION
  SECOND
• ADDRESS THE OBJECTION TO THE ARBITRATOR AND NOT
  YOUR OPPONENT

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WHY MAKE OBJECTIONS?

• REMIND THE ARBITRATOR OF THE UNRELIABILITY OF
  CERTAIN EVIDENCE
• USE IT AS AN OPPORTUNITY TO ARGUE
• USE IT TO THROW OFF YOUR OPPONENT
• TRY TO ACTUALLY EXCLUDE EVIDENCE
• SHORTEN THE HEARING

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TYPES OF EVIDENCE

• DIRECT
• EYE WITNESS TESTIMONY
• DOCUMENTS
• CIRCUMSTANTIAL
• ALLOWS INFERENCES TO BE DRAWN FROM FACTS PROVED

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RELEVANCE

• THE MAIN OBJECTION USED IN ARBITRATION
• OFTEN MADE FOR PURPOSES OTHER THAN EXCLUDING
  EVIDENCE, BUT RATHER TO SWAY THE ARBITRATOR TO A
  PARTICULAR THEME

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HEARSAY

• OBJECTION IS RARELY SUSTAINED
• GENERALLY IT WILL BE PERMITTED AND WILL BE GIVEN
  APPROPRIATE WEIGHT
• WHEN THE OBJECTION IS SUSTAINED IT WILL BE
  BECAUSE
• THE INFORMATION OFFERED IS REALLY NOT RELEVANT TO
  BEGIN WITH
• THE HEARSAY IS FROM A WITNESS WOULD BE AVAILABLE
• SOMETIME BECAUSE WHAT IS SOUGHT TO BE PROVED
  THROUGH THE HEARSAY IS SO CRITICAL TO THE CASE
  THAT THE ARBITRATOR FINDS THE TESTIMONY TOO
  UNRELIABLE

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HEARSAY EXCEPTIONS

• PARTY ADMISSIONS
• PRESENT SENSE IMPRESSION
• EXCITED UTTERANCE
• STATE OF MIND
• STATEMENT MADE FOR MEDICAL TREATMENT
• DYING DECLARATION

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EXHIBITS

• SHOULD BE MARKED IN ADVANCE
• COPIES TO THE ARBITRATOR, OPPONENT, A SET FOR
  WITNESSES
• SHOULD BE PUT IN A NOTEBOOK WITH APPROPRIATE TABS
  INSERTED
• A SUMMARY SHEET LISTING THE EXHIBITS SHOULD BE
  GIVEN TO ALL

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A WITNESS LIST FOR EXAMPLE

• EXHIBITS
• DESCRIPTION DATE PAGES
• U-1 Niemi to Wilkinson, Letter April 30, 2001 2
• U-2 Statement of Grievance May 2, 2001 1
• U-3 District Reduction of Hours Letter June 6,
  2001 1
• U-4 Niemi to Wilkinson, Letter May 29, 2001 1
• U-5 Hearings Officer Decision June 11, 2001 8
• U-6 Niemi to Paradis, Letter June 25, 2001 2
• U-7 Paradis to Niemi, Letter July 14, 2001 2

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STIPULATIONS

• ARE PERMITTED AND OFTEN SHORTEN THE HEARING BY
  AVOIDING WITNESSES TESTIMONY TO INFORMATION WHICH
  IS NOT IN DISPUTE
• BEWARE OF STIPULATIONS THAT CAN DISRUPT THE FLOW
  OF YOUR CASE

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JUDICIAL NOTICE

• SAME RULES APPLY AS THEY DO IN COURT PROCEEDINGS

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INTRODUCTION OF EXHIBITS AND TESTIMONY AND
APPROPRIATE FOUNDATION
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FOUNDATION

• PROVIDES THE ARBITRATOR WITH INFORMATION THAT THE
  EVIDENCE ABOUT TO BE RECEIVED IS
• RELEVANT
• ADMISSIBLE
• RELIABLE

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FOUNDATION FOR DOCUMENTS

• AUTHENTICATION THROUGH WITNESSES
• TESTIMONY AS TO RECEIPT OF DOCUMENTMAIL BOX
  RULES
• ORIGINAL DOCUMENTS-NOT USUALLY A PROBLEM IN
  ARBITRATION

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IF HARRY IS GOING TO TESTIFY TO SEEING THE CAR IN
THE PARKING LOT

• THAT HARRY CAN SEE
• YOU MUST ESTABLISH THAT HARRY HAD THE OPPORTUNITY
  TO SEE THE CAR IN THE PARKING LOT

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ANOTHER EXAMPLE FOUNDATION FOR EVIDENCE
REGARDING CONVERSATIONS

• DATE
• TIME
• PLACE
• WHO ELSE WAS PRESENT

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STIPULATIONS

• ARE PERMITTED AND OFTEN SHORTEN THE HEARING BY
  AVOIDING WITNESSES TESTIMONY TO INFORMATION WHICH
  IS NOT IN DISPUTE
• BEWARE OF STIPULATIONS THAT CAN DISRUPT THE FLOW
  OF YOUR CASE

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JUDICIAL NOTICE

• SAME RULES APPLY AS THEY DO IN COURT PROCEEDINGS

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OPENING STATEMENTS-INTRODUCTION

• COMES IMMEDIATELY AFTER PRELIMINARIES
• PRELIMINARY MATTERS
• MARKING OF EXHIBITS
• WHO GOES FIRST?
• IF YOU GO SECOND, IT IS OK TO REACT TO OPPONENTS
  OPENING
• SIT DOWNNO STANDING IN ARBITRATION
• DONT INTERRUPT OPPOSING COUNSELS
  OPENING-ARBITRATORS HATE THAT
• WRITTEN SUBMISSION?
• RARELY DONEMORE A MATTER OF PERSONAL PREFERENCE
• IF YOU DO SUBMIT IN WRITINGDONT READ IT OUT
  LOUD!

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FORMAT FOR OPENING STATEMENTS

• IDENTIFY THE ISSUE
• LOOK TO THE CONTRACT OR CONTROLLING DOCUMENT AND
  REFERENCE HOW THEY RELATE TO THE ISSUE
• REVIEW THE FACTS IN TERMS OF WHAT YOU CAN PROVE

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MORE FORMATTING FOR OPENING STATEMENTS

• REVIEW WHAT YOU UNDERSTAND TO BE OPPONENTS
  POSITION
• CONTRAST YOUR POSITION WITH OPPONENTS
• REVIEW YOUR THEMES AND THEORIES
• DEFINE THE RELIEF REQUESTED

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IDENTIFY THE ISSUE

• DEFINE THE ISSUE IN A WAY MOST FAVORABLE TO YOUR
  CLIENT
• OFTEN IT DOESNT MATTER MUCH
• SOMETIMES THE DEFINITION OF THE ISSUE CAN BE USED
  TO HIGHLIGHT YOUR THEME

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REVIEW THE FACTS IN TERMS OF WHAT YOU CAN PROVE

• DONT OVER SELL YOUR FACTS
• TRY TO FOCUS ON AS FEW FACTS AS POSSIBLE THAT YOU
  ARE SURE OF
• DONT PREDICT FACTS YOU CANT PROVE
• DONT MAKE FACTUAL ADMISSIONS THAT YOU DONT HAVE
  TO
• KEEP IT BRIEF AND INTERESTING

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ARGUMENTATIVE OPENINGS

• THERE IS A VERY FINE LINE BETWEEN WHAT IS
  ARGUMENT AND WHAT ISNT
• TONE OF VOICE
• STRIDENCY OF ARGUMENT
• CONTRASTING POSITIONS
• WHAT IS CLEARLY ARGUMENTATIVE IS
• REQUESTING THAT INFERENCES BE DRAWN
• WEIGHT THAT CERTAIN EVIDENCE SHOULD GET
• COMMENTING ON CREDIBILITY
• OVERT APPEALS FOR JUSTICE

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DECORUM

• ADDRESS YOUR STATEMENT TO THE ARBITRATOR
• DONT BE A WISE GUY
• DONT ACT LIKE IT IS PERSONAL
• DONT BE DISMISSIVE OF THE OTHER CASE

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WHERE ME AND THE BOOK DIFFER

• I HAVE NEVER SEEN STIPULATIONS READ AS PART OF
  THE OPENING STATEMENT
• I HAVE RARELY, IF EVER, SEEN REPLY OPENING
  STATEMENTS
• I HAVE NEVER SEEN THE FAILURE TO ASSERT A FACT
  ASSERTED AGAINST A PARTY BY AN ARBITRATOR
• DEALING WITH IMPROPER OPENING BY THE OPPONENTTHE
  BOOK SAYS OBJECT, I SAY ONLY IN EXTREME
  CIRCUMSTANCES
• AFTER HE/SHE IS DONE-ASK FOR PERMISSION TO
  ADDRESS THE MIS-STATEMENTS, ETC.

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ARBITRATION PREPARATION

• DIRECT EXAMINATION

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REVIEW CASE FACTS

• DETERMINE WHAT YOU MUST PROVE
• WRITE FACT NARRATIVE
• DONT DISCRIMINATE EXCEPT ON GENERAL RELEVANCE
• INCLUDE HELPFUL AND NOT HELPFUL FACTS
• WHICH HELPFUL RELEVANT FACTS ARE NEED TO BE
  PROVED
• WHICH NOT HELPFUL RELEVANT FACTS WILL THEY NEED
  TO PROVE

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RELEVANT HELPFUL FACTS

• WRITE NARRATIVE
• NOTING WITNESSES AND DOCUMENTS
• ORGANIZE CHRONOLOGICALLY
• RESORT CHRONOLOGICALLY AND THEN BY WITNESSES
• THEN ADD TO THE CHRONOLOGY EXHIBITS

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RELEVANT NON-HELPFUL FACTS

• WRITE NARRATIVE FROM THE OTHER POINT OF VIEW
  NOTING WITNESSES AND DOCUMENTS
• ORGANIZE CHRONOLOGICALLY
• RESORT CHRONOLOGICALLY AND THEN BY WITNESSES
• THEN ADD TO THE CHRONOLOGY EXHIBITS
• DEVELOP OBJECTION POSITIONS

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COLOR CODE GOOD AND BAD FACTS (RED AND GREEN
ISN'T BAD)

• BLEND TOGETHER THE STATEMENT OR NARRATIVE
• CREATE WITNESS STATEMENTS BASED UPON HELPFUL AND
  NON-HELPFUL FACTS
• COORDINATE EXHIBIT DOCUMENTS AND NUMBERS

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EACH WITNESS STATEMENT

• PUT IT ON AN INDIVIDUAL PAGE
• SEPARATE EVERY SENTENCE OF THE STATEMENT AND
  DOUBLE SPACE IT
• TAKE EVERY SENTENCE AND BREAK IT DOWN
• GO FOR BITS OF INFORMATION

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DIRECT EXAMINATION

• TAKE THE BROKEN DOWN WITNESS STATEMENTS NOTED
  ABOVE
• CREATE A QUESTION DESIGNED TO GET A BIT OF
  INFORMATION FROM THE WITNESS
• RETYPE THE STATEMENT IN A FORM OF WITNESS Q AND A
  WITH THE As IN PARENTHESIS
• MAKE SURE THAT FOUNDATION QUESTIONS ARE ASKED ON
  DOCUMENTS

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ANTICIPATE OBJECTIONS

• TAKE NOTES
• DO NECESSARY RESEARCH

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PREPARING QUESTIONS
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TAKING A WITNESS STATEMENT AND MAKING QUESTIONS

• THE GRIEVANT IN THIS MATTER
• 47 YEARS OLD
• HISTORY WITH COMPANY
• WORKED FOR THE COMPANY FOR 4 YEARS AND 7 MONTHS
• HIS POSITION WAS A MUA/PHLOBOTOMIST
• MUA MOBILE UNIT ASSISTANT
• HIS POSITION IS A DOT CLASSIFICATION
• AS SUCH HE IS REQUIRED TO HAVE A CDL-CLASS A
  LICENSE
• SUPERVISION
• HIS IMMEDIATE SUPERVISOR IS ELAINE GRAVES, HEAD
  NURSE
• SHE WORKS OUT OF SUTHERLIN, OR
• HER SUPERVISOR IS MIKE M___, DIRECTOR OF
  OPERATIONS
• HE WORKS OUT OF BEND, OR

• STATE YOUR NAME
• DID YOU FILE A GRIEVANCE IN THIS MATTER
• HOW LONG DID YOU WORK WITH THE COMPANY
• WHAT WAS YOU POSITION
• WHAT IS AN MUA
• WHAT IS A PHLEBOTOMIST
• DO YOU REQUIRE ANY PARTICULAR GOVERNMENT
  CERTIFICATIONS TO DO YOUR JOB
• WHICH ONE
• ARE YOU REQUIRED TO HAVE A SPECIAL DRIVING
  LICENSE
• WHAT DOES A CLASS A LICENSE ALLOW YOU TO DO
• DO YOU HAVE A SUPERVISOR
• WHAT IS HER NAME
• WHAT IS HER POSITION
• WHERE DOES SHE WORK
• WHO IS HER SUPERVISOR
• WHERE DOES HE WORK
• WHAT IS HIS TITLE

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GETTING ANSWERS FOR THE QUESTIONS YOU CREATE

• STATE YOUR NAME
• DID YOU FILE A GRIEVANCE IN THIS MATTER
• HOW LONG DID YOU WORK WITH THE COMPANY
• WHAT WAS YOU POSITION
• WHAT IS AN MUA
• WHAT IS A PHLEBOTOMIST
• DO YOU REQUIRE ANY PARTICULAR GOVERNMENT
  CERTIFICATIONS TO DO YOUR JOB
• WHICH ONE
• ARE YOU REQUIRED TO HAVE A SPECIAL DRIVING
  LICENSE
• WHAT DOES A CLASS A LICENSE ALLOW YOU TO DO
• DO YOU HAVE A SUPERVISOR
• WHAT IS HER NAME
• WHAT IS HER POSITION
• WHERE DOES SHE WORK
• WHO IS HER SUPERVISOR
• WHERE DOES HE WORK
• WHAT IS HIS TITLE

• MARTY
• YES
• ABOUT 4 AND A HALF YEARS
• AN MUA/PHLEBOTOMIST
• A MOBILE UNIT ASSISTANT
• SOME ONE WHO DRAWS BLOOD
• YES
• I AM CERTIFIED BY THE DEPARTMENT OF
  TRANSPORTATION
• YES, A CLASS A LICENSE
• ALLOW ME TO DRIVE LARGE VEHICLES LIKE THE BLOOD
  MOBILE
• YES
• ELAINE _____
• HEAD NURSE
• SUTHERLIN, OR
• MIKE ______
• BEND, OR
• DIRECTOR OF OPERATIONS

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DEVELOPING MORE QUESTIONS

• HE HAD BEEN TESTED A NUMBER OF TIMES BEFORE
• ALWAYS TESTED NEGATIVE
• THIS TEST WAS ON NOVEMBER 18, 2003
• HE WAS NOT IMPAIRED IN ANY WAY THAT DAY
• HE HAD SMOKED A SMALL AMOUNT OF MARIJUANA A FEW
  DAYS BEFORE
• HE WAS NOT A FREQUENT USER
• AFTER TAKING THE TEST HE CONTINUED TO WORK
• ON NOVEMBER 25, HE WAS NOTIFIED THAT HE TESTED
  POSITIVE
• HE IMMEDIATELY CALLED JOHN CHRISTIANSON
• HE CALLED CHRISTIANSON SINCE HE WAS HIS TRAINING
  ON DRUG TESTING
• HE ALSO BELIEVED THAT CHRISTIANSON WAS HIS SAFETY
  SUPERVISOR
• CHRISTIANSON WAS NOT IN,
• MARTY LEFT A MESSAGE
• HE ASKED CHRISTIANSON TO CALL
• HE THEN CALLED JOAN WRAY,
• WRAY IS IN THE COMPANYS HR DEPARTMENT