NPELRA All rights reserved. Arbitration - Hearing Notebook. Opening Statements - General

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1 NPELRA 2015 Mock Arbitration Part 1, continued: Arbitration Notebook Opening Statements Direct Examination Presented by Linda Ross Arbitration - Hearing Notebook Contents (use tabs): Prehearing briefs, if any Case chronology Witness list and contact information Exhibit list Opening statement Witness examinations (direct and cross) Closing statement Opening Statements - General Party with burden of proof opens first Road map for the finder of fact Arbitrator, unlike a jury, may be familiar with the case State facts, not argument, but standard is less strict in arbitration setting Conference room, not courtroom stay with a relaxed style

2 Opening Statement - Preparation Create an outline List major points to be addressed Determine a theme Tell a story make the opening come alive State what you intend to prove (but don t over promise!) Brief description of witnesses and evidence Conclude with your major points Opening Statement - Tips Be concise; do not get off on tangents Stay relaxed; open, positive body language Stay neutral and objective If your case has negatives, admit them and explain Focus on your case; do not get lost in rebutting the opposition except for key facts Be professional; no denigration of opposition or witnesses; no eye rolling Opening Statement Elements of your story: Setting date, time, place, context Characters who was there Brief background to understand role of each Tell the story in chronological order Focus on key evidence don t get lost in the details End with the conclusion that follows from the evidence

3 History: Famous Opening Statements - Prosecution Nuremburg trial of Nazi war criminals: We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. (1945) Oklahoma City bomber: The truck was there to impose the will of Timothy McVeigh on the rest of American and to do so by premeditated violence and terror. History: Famous Opening Statements - Defense Oklahoma City bombing: Terry Nichols... was at home. With him were his pregnant wife... their infant daughter... Terry Nichols was building a life, not a bomb. Nelson Mandela: I have done whatever I did... because of my experience in South Africa and my own proudly felt African background, and not because of what any outsider might have said. (1964) Direct Examination Witness Selection Select witnesses carefully Outline which witness to provide testimony about each element; cover all elements Consider ability to testify in a credible and accurate manner Eliminate unnecessary redundancy Keep in mind whether communications with witnesses are privileged

4 Preparation for Direct Examination Read any prior reports, statements or testimony Read key documents related to the witness Draft a list of topics or questions Anticipate objections Select exhibits Review potential testimony with witness Structure of Direct Examination Background brief description of witness s background Bridge why the witness is testifying knowledge of the matter, set the scene Tell the story longest section the facts, in chronological order for clarity Weaknesses address any weaknesses on direct; do not wait for the cross examination Direct Examination - Questioning Lay a foundation where and when the event occurred, who was there; establish personal knowledge Use non-leading questions Listen to the witness be sure all necessary facts are being covered, have checklist Ask follow up questions if necessary to elicit facts left out or to clarify

5 Use of Leading Questions Arbitration is more informal than trial With own witness - use leading questions to: Efficiently elicit background testimony Direct witness to subject matter, refresh recollection or remedy mistake: Was anything said about? Compare with witnesses for the opposition, leading questions are always permitted Direct Examination Preparation of Exhibits Best practice prepare exhibit list before hearing and pre mark exhibits Best practice mutually exchange exhibits with opposition pre hearing Best practice - obtain stipulation before hearing from the opposition that the exhibits may be admitted into evidence Best practice prepare hearing notebook for arbitrator, witnesses with pre marked exhibits Introduction of Exhibits If have an agreement in advance on admissibility of exhibits, no need to move individually into evidence Arbitration is less formal than trial, so rules of evidence are more relaxed Always show documents first to opposition If required, have witness identify the document as a true and correct copy, and establish that it is a business or public record

6 Redirect After opposition conducts cross-examination, there is an opportunity for redirect Keep it short Select only the most important points Use redirect to: Clarify facts if there is confusion Emphasize favorable facts not covered in cross examination End of Section 1