Arbitrating a case, as opposed to ligitigating it in a state or federal court system, can be a significant cost saver for resolving construction related disputes. Preparation for the arbitration proceeding plays a major role in the outcome. After having represented many parties before a variety of different arbitration tribunals, and after having sat as an arbitrator in a variety of construction abritration disputes, it appears as though several basic rules emerge for good arbitration preparation. These are as follows:

The first and foremost rule for good arbitration preparation is knowing your case. There is no substitute for a good knowledge of the facts. In order to know your case, you need to have a good command of both your documents, and to the extent possible, the documents of your adversary. You can learn about your adversary's case either by examining your own documents in your file that your adversary has sent you during the job; or, if your adversary is a public entity or a contractor on a public project, you can obtain many of the job documents from the owner through your state's version of the Freedom of Information Act. Taking these steps to learn, now and udnerstand your case is a vital building block for the rest of your arbitration preparation.

Second, you need to very carefully analyze your opponent's case. After you have spent considerable time learning your own case, it is very easy to fall into the trap of approaching your apponent's case with righteous indignation. However, this prevents you from objectively seeing your opponents case; and accordingly, objectively analyzing the weakness of your own case.

Third, after you have learned your entire case and analyzed your opponent's case, if you are the party seeking damages in the arbitration proceeding, you need to calculate your damages to the extent possible with mathematical precision. You need to avoid the temptation to claim damages which you "feel you suffered," as opposed to damages which you "know you suffered," as a result of tabulating construction documents within your file. Arguing damages which you only "feel" and cannot substantiate will only weaken the credibility of your case.

Fourth, you need to clearly develop your theory of the case. To develop the theory of the case, you need to figure out why you are right and your adversary is wrong. You need to take a global approach to this theory. You need to determine in a general sense why you are right and why your adversary is wrong, and be able to articulate that in one or two sentences. This theory will then be the basis for the way you present your case in the actual arbitration proceeding. It is fundamental that you go through steps one through four first because, on order to clearly articulate your theory, you need to know as many of the facts as possible. If you try to develop your theory on only some of the facts, then undoubtedly the facts which you do not know will pierce your theory.

Fifth, after your theory has been fully developed, you need to put forth through evidence at the arbitration proceeding only those facts which support your theory. In any construction dispute, regardless of how complicated, there are a multitude of facts which ultimately play no role in the outcome of the case. The difficult part of the preparation of any case involving a construction dispute is deciding what facts are important and what facts are not. If the facts do not directly relate to your theory, they are most likely not important. You need to know these facts in the event your theory is tested through cross-examination, but ultimately, attempting to prove facts which do not directly relate to or support your theory will only serve to weaken your case.

Sixth, once you have pigeon-holed the relevant facts into an outline, you need to figure out how to convince the arbitrator or arbitration panel that your case represents the correct theory, and you need to do that in the very first five minutes of the case. Much of what an arbitrator learns and uses throughout the arbitration proceeding, he or she learns in the very early stages of the case. Toi do this, you should selectively use bold and clearly discernable graphcs which can summarize a plethora of information in one bold sweep. We live in a very visual society, and bold, simple graphics will greatly improve your ability to make a point quickly and succinctly.

Seventh, during the arbitration proceeding itself, you need to be a good listener. As an arbitrator, I have on countless occasions listened to litigants who either do not listen to their own witnesses, do not listen to the testimony of their adversaries and more importantly, ignore the comments of the arbitrators. In all of those circmstances, you can learn valuable information as to where your case is heading, either from the opponent's perspective or from the arbitrator's perspective. Where most litigants fail in the arbitration proceeding is in the inability to pick out the precise relevant information and discard the rest, and in the inability to properly listen to what is goin on to both learn the arbitrator's perspective an dmake a determination as to how they are doing during the arbitration proceeding.

Finally, you should pay particular attention to body language. One thing that is particularly disturbing during an arbitration proceeding is a client who constantly simles, drowns, snickers or whispers in the lawyer's ear as the arbitration proceeding is going on. This is very distracting and sends a message to the arbitrator that the litigant does not feel secure in the litigant's position. You need to wear your best poker face, and if you need to appraise your attorney of something, you should write it on a pad and share that information with your attorney either during a break or inconspicuously during the arbitration proceeding. Adverse body language will certainly not increase the credibility of your overall case.

These are some basic guidelines on how to properly prepare for an arbitration proceeding. Obviously, each arbitration is different, and each arbitration depends upon not only the personalities of the litigants, but the personallities of the arbitrators. Nevertheless, if you observe some of these very simple steps, you will better than hedge your bets.

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