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  NORTHERN CALIFORNIA Volume 8 no. 1/Nov '98  

Applying Project Management
Principles to Litigation


David Dolkas
To be successful, every really big project requires both a vision and a project manager capable of leading a project team to complete the project on schedule. When John Kennedy told the world that America would put a man on the moon in the 1960's, that vision motivated the assigned team of people to accomplish the project. That team had a clear goal, a known deadline and sufficient resources to make the goal a reality. In short, the lunar space program had all of the components of a well run project - a vision, a project plan, a target date, sufficient resources and a motivated and encouraging sponsor - the American people.
In some projects, the visionary and the project manager are the same. My favorite was Jim Phelps of Mission Impossible. Each week Jim got a tape recorder and a tape with his team's assignment. Jim had to listen carefully because the tape self-destructed immediately after it was played.
Usually, in the comfort of his living room, Jim carefully envisioned how his team would accomplish the impossible mission. (Jim followed Step One of Project Planning: He determined the scope of the project and the project requirements.)

Applying Project Management Principles

 Jim also had the luxury of choosing from a handful of experts and the latest electronic gadgetry. (Jim followed Step Two of Project Planning: He determined the necessary staffing and tools/resources for the project.)
The IM Force team would then assemble and agree upon the plan for accomplishing the impossible mission. (Jim and his team followed Step Three of Project Planning: They created a "work breakdown schedule.")
Week after week, Jim's team accomplished an impossible mission, then jumped in a van and sped away. Martin Landau would then rip off his plastic face and the team would go celebrate off camera. (O.K., so I embellished a bit. But the team followed another important principle of project management: They closed the project.)
Large and complex cases involve managing a variety of factors, including: reams of documents, hordes of witnesses, skillful and aggressive opposition, court imposed deadlines, budgets, calendar conflicts, unanticipated problems, etc. Without a project plan, sufficient resources, and an effective way of tracking the completion of the project tasks, the task of managing a complex case can seem like an impossible mission. Project management ("PM") principles make complex litigation much easier. High stakes litigation is simply too big, too expensive and too risky to conduct without a project leader with a detailed plan. A large and complex case simply does not drift to a successful outcome. Even if you are not convinced of the need to prepare and follow a comprehensive case plan, many sophisticated companies are requiring that you prepare and constantly update such a plan.
Important Product Management Terms
  • Critical Path - the relationship of all of the tasks which are linked together to form the overall project plan. The sum of those relationships equals the "critical path" and will determine the duration of the project. If any one of those inter-related tasks is not completed on time, the critical path will usually be extended. For example, if the time necessary to complete all depositions is extended, completion of all discovery will probably be delayed as well.
  • Milestone - a significant event marking either the completion of a certain phase of a project or a key event. The discovery cut-off or pre-trial conference dates are milestone dates. Milestones can be either self-imposed or externally imposed.
  • Project manager - the person who is directly responsible for managing the project.
  • Project stakeholder or sponsor - the person or entity who provides the financial resources and sometimes the motivation for the project. In litigation, the sponsor is the client or stakeholder.
  • Scope - the range of tasks required to accomplish the project goals.
  • Work Breakdown Schedule - a hierarchical breakdown of the project into many discrete, smaller tasks of shorter duration. The WBS is the backbone of any project. Accomplishing the WBS on time and within budget usually determines the success or failure of any project.
The PM Process
PM is the act of using the time and resources available to achieve the desired result for the stakeholder. Notice how I used the word "act." Effective PM requires action on the part of the project leader and the team. All the planning in the world will not bring the project to a successful completion. Nor do successful projects run themselves. The project plan has to be implemented and tracked effectively throughout the course of the project.
To be successful in a complex case, the case/project needs (a) a motivated and motivating team or project leader; (b) a clear purpose or goal for the project; (c) a realistic project plan; (d) competent and complete execution and tracking of assignments; and (e) a sponsor or stakeholder whose needs and expectations are in alignment with the project team.
Most projects have a project life cycle - meaning that they have a definite beginning, middle and end. All three phases are important because the PM performed in each phase influences the success experienced in the next phase and next project. Consequently, all phases of a project cycle are of equal importance. The project life cycle or phases consists of three defined areas: project planning, executing and tracking, and project closing. Each of these three areas is critical to successful PM.

Phase I - Project Planning
Step One: Determine the scope of the project and the project requirements. Decide what you are building. Make sure you understand your client's needs and expectations ( i.e., what the client wants you to build). You may believe the client hired you because you are a "take no prisoner" kind of litigator and the client wants "scorched earth litigation." However, the client may need and expect that you will do everything possible to get the case resolved, by motion or settlement, as soon as possible and within a fixed budget. You need to know the client's requirements or you will face disgruntled clients and possibly a fee dispute down the road.
To determine the project requirements, you will need a good handle on the number of potential lay witnesses, the types and numbers of expert witnesses, the volume of documents to be produced, and the motions likely to be filed. If the client asks for an estimate of fees and costs, you may be forced to perform this analysis. Regardless, you will not be able to determine the project requirements or staff the project team unless you under understand the scope of the project as early as possible.
Step Two- Determine the staff or the project team. Obviously, you want the best team that you can put together, including team members from outside your office, e.g., expert witnesses, court reporters, videographers, document specialists, graphic consultants, etc. You can follow a staffing pyramid with six levels of responsibility. Level One is the "Lead Attorney" or the "top dog" (so to speak) - the leader and the visionary for the case. Lawyer One is the lawyer who ultimately decides the theme and theory of the case, makes all of the key arguments (opening and closing), and handles the key witnesses. If possible, Lawyer One should be released from details and minutia in order to soar with the eagles. (While this article strongly promotes the team approach, I do not endorse litigation "by committee." There can only be one voice to any case - the lawyer who ultimately presents the case to the jury.)
Lawyer Two is the de facto case manager. Lawyer Two is responsible for the details of the case while also assisting Lawyer One with critical tasks. Lawyer Two runs the team meetings, knows the whereabouts of all of the critical work product (e.g., timelines, witness lists, damage analysis, database, deposition summaries, etc.) In sum, Lawyer Two is the road manager for the case.
Lawyer Three is the "law guru." Lawyer Three needs to know everything about the relevent law. Lawyer Three will draft motions and jury instructions and attend the jury instructions conference. Lawyer Three can also participate in some discovery of less critical witnesses and prepare witnesses for direct and cross at trial.
Lawyer Four is the "historian," who must be able to access any deposition or trial transcripts quickly and efficiently.
Levels Five and Six are typically paralegals assigned to the administration of the case. One of them must be assigned to the war room and be responsible for the entire case file.
Not every case will support six persons on the case team. For some cases, you may serve in the role of Lawyer One through Three and have only part-time assistance from a paralegal or an associate. Regardless, all of these roles have to be filled in every case.
Ask four questions about any prospective team member. First: Does she have the expertise or experience to accomplish the specific tasks to be assigned? (You should not, for example, assign a novice litigator to the critical depositions, unless you are prepared to train and supervise that person to perform that task.) Second: Is his calendar open when he will be needed? Third: Is she motivated to serve on the team? Fourth: Will he work well with the other team members?
Finally, as part of staffing the case, you should also determine what technology resources you will need. The following table provides an overview.

Assessing and Determining the
Necessary Technology Resources
Heavy document case (1) Set up a database, e.g., Access¨ by Microsoft as the data base. (2) Scan documents onto CD and use a CD viewer, e.g., Acrobat¨ by Adobe.
Numerous depositions Full text-retrieval software, e.g., LiveNote¨ (plus you may want real-time reporting).
Numerous video depositions Video editing and timecoding of the deposition transcript.
Graphics and computer modeling Retain graphics consultant early so that ideas for graphics are formulated with input from expert witnesses and the client.


Step Three - Determine the work breakdown schedule. Once you know the project's requirements and scope and determine the necessary team members, you can then (and only then) determine the work breakdown schedule. This is basically determining who is doing what by when and how long it should take.
While you can prepare a work breakdown schedule by hand, using specialized software is much faster and provides much more versatility in developing schedules, reports and making changes to the work breakdown schedule. These software programs compile and sort data behind the scenes and can be networked for access by all of the team members and the client.
In preparing the work breakdown schedule, follow these rules:
1. Tell them what to do, not how to do it. If you have experienced team members who are familiar with the tasks assigned, you don't need to prepare a work breakdown schedule in minute detail. For example, simply stating: "Prepare motion to dismiss" should suffice for an experienced team member. Providing too much detail runs the risk of being the dreaded role of "micro manager"). The "doing it" is the assigned team member's responsibility, not yours. However, you do need to be specific about the task, e.g., "prepare first draft of motion to dismiss" (good/specific) v. "assist/provide support in responding to discovery requests" (bad/nonspecific).
2. Be a lean, mean fighting machine. Keep your team as lean as possible. It's easier to manage and promotes bonding and better focus. You can always add members later for selective assignments or if the case enlarges.
3. Assign individual responsibility for each task. As a general rule to be broken only under exceptional circumstances, assign one task to one individual. You (as the project manager) want one person accountable for each and every task so you know who takes credit for the success of that task or its failure. (This will also help to avoid the two-person-ping-pong game dilemma: the ball goes down the middle past both players who each thought the other was going to return the shot.)
4. Limit the duration of each task. Each task must have a reasonably short duration - something less than 45 days out. Otherwise, the task becomes a separate, stand-alone project for that person.
5. No task is done until it's done. Preparing a motion for summary judgment that is 90% complete is not a completed task. This doesn't mean that you as project manager should not track the progress of a task. But, it does mean that the hardest part of completing most tasks is the last 5-10%. So to paraphrase Yogi Berra badly: "It ain't done, 'til its done."
6. Assign a priority to all tasks. This will help the team to decide what is of greatest importance when crunched for time.
Phase II - Project Executing and Tracking
Now comes probably the most difficult aspect of PM - executing and tracking the completion of the tasks on the work breakdown schedule. Most lawyers are not trained to be project managers. They may be good at managing themselves and their practice, but weak in people and team organization skills. Some lawyers may also feel that things won't get done unless they threaten and bully and, well, that might not be their cup of tea. Many of the problems can be avoided by careful team selection. Further, good old common sense and courtesy will go a long way in keeping your team motivated and on-task.
I recommend having regular team meetings at least once every two weeks before trial and every day during trial. The following is my list of the top 10 things to do to ensure these meetings are productive:
1. Distribute your agenda for the team meeting before the meeting starts. This will allow the team members to be ready to advise on the status or progress of tasks at the meeting. The agenda should be the revised version of the work breakdown schedule.
2. Limit the time of the meeting. Generally, a team meeting should not last more than 30 minutes. And, start on time! Try to schedule the team meetings for the same day/same time, so that the team always knows when they will occur.
3. The project manager must attend and lead the meetings. If you as the person running the project don't attend, what kind of message are you sending to the troops? If for some reason you cannot attend, have a replacement completely ready to run the meeting.
4. Lawyer One ("top dog") should attend the meeting. Lawyer One should attend as many team meetings as possible to confirm to the other team members that, in fact, they are on a team (as opposed to a group of people doing chores to make a single lawyer look good in court).
5. Review the status of the Priority One items first before going onto any Priority Two items.
6. Limit the chit-chat and war stories. A Level Five or Six paralegal doesn't need to know how one of the lawyers on the team skewered a witness in a deposition. Their time is as valuable as yours. However, you as the project manager or Lawyer One should keep the team informed of significant developments, (e.g., rulings on motions, newly discovered documents), so the team has the global context of the case at all times.
7. Deal with trial, pre-trial or settlement strategy off-line and outside the team meeting. Focus on assessing the completion of the tasks on the work breakdown schedule. It is not the time to strategize.
8. Deal with personnel issues off-line and outside the team meeting. If you have a team member not pulling their weight, don't take them on or down during the meeting. It will send a cold chill through the room and could be embarrassing for you and the team member. But, you need to deal with the problem quickly because that person's failings will affect the critical path of the case. If a particular team member has lost focus or interest, give a warning and expect an immediate correction. If no correction is made, replace that team member. Remember, a non-performing team member will bring down the morale of the other team members.
9. Apply the rule - a task is not complete until it's complete.
10. Immediately revise and distribute the work breakdown schedule after each team meeting.

Phase III - Project Closure
This is probably the most ignored area of project management. Many projects end with a whimper, not a bang. Cases often settle after protracted negotiations. In the meantime, the team has disassembled and moved onto other projects. There is often no time to recognize the team and officially close the project.
Try to have some sort of formal closure. Team members may take offense if they hear from other sources that the case is over. You also want the opportunity to thank team members for their contributions. Remember, you may be selecting that person again for another team. If they feel their efforts go unrecognized, they may not be a willing team member in the future.
If the project has been really challenging and difficult and the team pulled together, there may be a lot of good feelings among team members. A final meeting or a team party is a good idea. The stakeholder should be invited. Any significant contributions should be recognized and the stakeholder should be thanked for the opportunity to work on the project. If the team's project's goals were aligned with the stakeholder's and the team did everything to accomplish those goals, the stakeholder should be satisfied with the team's efforts - regardless of the final outcome of the case.
Third party vendors and experts should be notified to send any final bills. Nearby vendors or experts who made significant contributions should also be encouraged to attend the team party.
Finally, you should gather any and all work product and review it for possible later use. One of the most important things to save is the original master work breakdown schedule. You may be able to modify it for a similar case sometime down the road. Save any other motions, legal research, jury instructions, graphics or other work product that may be useful in other cases.

Conclusion
As your last act as project manager, evaluate the success of the project. Ask yourself what went right and wrong and why. (If you don't remember the past, you are condemned to repeat your mistakes on the next project.) If you encountered problems during a certain phase, retrace the steps that led up to that problem. If possible, look at the actual time incurred on the project and compare it to the initial work breakdown schedule or budget given to the client. If your initial time estimates proved to be way off, you will not want to repeat that error again. You should also give direct and constructive feedback to the team players; they like you, will view it as a learning experience and they, like you, will not repeat mistakes in the future. These principles will not win your case or turn a sour case into a sweet one. But they will help you to get the work done quicker and more efficiently and, who knows, maybe you'll get home for dinner earlier.

Mr. Dolkas, a partner in the firm of Gray Cary Ware & Freidenrich in Palo Alto, lectures on litigation management to bar groups and government agencies.

 

Preparing for and Presenting an Arbitration

Benjamin K. Riley

More and more often, a trial lawyer's "day in court" is spent in a hotel conference room with no jurors in sight. While in law school we imagined ourselves holding twelve layman spellbound by masterful cross-examination or argument, we now must struggle to make evidence interesting to highly compensated, private judges on long afternoons in hot conference rooms. With private arbitrations becoming more prevalent every day, there are some basic lessons that a trial lawyer must consider in preparing for and presenting a case in arbitration.
Don't assume that the same examination or argument technique that works well in front of a jury is the best approach in arbitration. Here are twelve suggestions to keep in mind.

Try To Be The Petitioner
Despite admonitions regarding burden of proof and deciding a case only after all of the evidence has been presented, jurors are likely to "take sides" or come to preliminary conclusions as soon as the Opening Statement or evidence begins. Whatever jurors "first believe about something is what they are likely to feel most deeply and retain most vigorously." Cal. Trial Handbook (3d ed. 1992) section 19.2. There is no reason to believe that arbitrators react any differently. In fact, because of the greater liberality in testimony in an arbitration, there is more opportunity to pre-condition the trier of fact.
Given this likelihood of pre-judging a case, the party that presents its case first has a distinct advantage. It can present its side of the story in a neat, understandable package, before the opponent has a chance to rebut and present its case. The first witness can convey your theme and immediately put the other side on the defensive.
Accordingly, you should take every opportunity to capture the position of "Petitioner." If a plaintiff ignores an arbitration clause and files an action in court, immediately serve and file your Demand For Arbitration, file a petition to compel arbitration with the court, and then retain your position as "Petitioner." Alternatively, when you know a lawsuit is coming, consider a preemptive strike and serve an Arbitration Demand seeking declaratory relief. In both situations, you can now present your case before your opponent. If you represent the "aggrieved" party and the parties have contracted for arbitration, think very hard before you file an action in court, ignoring the arbitration forum. If you should lose in your effort to avoid arbitration (which, if the other party objects, you probably will), you have just given up your client's natural advantage of being the "plaintiff."
In a recent arbitration, our client was sued in court for allegedly defective agricultural machinery. Our client successfully petitioned to compel arbitration. When the case was first arbitrated, previous counsel chose to present only a brief petitioner's case, electing to allow the "real plaintiff" to present most of the evidence and then to respond with a traditional defense case. After the first arbitration award was reversed, we presented a comprehensive petitioner's case, establishing in detail how our client fully performed the contract and was prevented from continuing performance by the plaintiff/respondent. We were able to call our opponent's key witnesses on cross in our case, challenging their credibility even before direct examination. We presented and explained each of the plaintiff's "bad" facts.
By the time we concluded our case, including adverse witnesses, the arbitrators had already heard most of the controversy from our client's perspective. Our opponent was now forced to explain its conduct as opposed to focusing on our client's alleged breach.
The lesson: if at all possible, position yourself as the Petitioner at arbitration and then use the opportunity to present your case, whether offensive or defensive, first.

Present Your Best Case in the Demand/Response
Conventional wisdom is that Demands For Arbitration, responses and other filing should be brief and without substantial legal authority. Granted, an arbitration pleading, like any other pleading, should avoid legalese and be clear and concise. But remember that unlike a Complaint, which neither judge nor jury will likely ever read, the first thing the arbitrator will read is the Demand For Arbitration and then the Response to Arbitration Demand. The initial pleading provides your first opportunity to persuade. Use it. Consider making your Demand or Response a complete (but still relatively brief!) Opening Statement with the key facts and law carefully marshalled. If extreme time sensitivity is not an issue, you may wish to briefly delay filing of the Demand or Response until you have investigated your facts and/or damages so that you can present a compelling case that will not have to be substantially changed later.
Also, be prepared for the first status conference with the arbitrator, when she will turn to you and say "Counsel, tell me about your case." Give her the 10-minute version of your Opening Statement illustrated by your five key documents.

Jettison "Loser" Arguments
By the time it reaches a jury, those "alternative" positions that you threw into the Complaint or Answer, just in case, have long since been dropped. Most trial lawyers will not want to present relatively weak claims to a jury or judge when they have two or three stronger claims.
This same consideration applies to arbitration - only much earlier in the process. Since the arbitrator will first judge your case based on the Demand or Response, consider whether you want to make the "fall-back" arguments in the first place. If your case proceeds efficiently, you may have to explain at the Pre-Hearing Conference how two of your five claims have now been dropped. And unlike a jury, which frequently will be unaware of tactical moves during a trial, the arbitrator will be fully apprised concerning your shifts in strategy. Substantial changes in position may cause the arbitrator to question your remaining claims.
The better practice may well be to proceed from the beginning on only your strongest claims. As the respondent, if a claim looks like a "loser," find a way to concede the obvious while still maintaining the integrity of your defense. Remember: the arbitrator, just like a jury, will be analyzing your every step. If you start and remain in the position of strength and equity, your chances of prevailing are greatly enhanced.

Be Candid
Candid and forthright advocacy is perhaps even more important in arbitration than in court. While most civil trial lawyers will not want to present a position to a jury that they cannot strongly support, the court litigation process still provides many opportunities for "strategic" positions or arguments that focus on non-central points (throwing the proverbial spaghetti on the wall in hopes something might stick).
Arbitration is a poor place for posturing. A competent, hard-working arbitrator who has been responsible for a dispute since its inception is unlikely to be swayed by irrelevant facts and overly emotional appeals. An arbitrator will strive to be dispassionate, to decide the case based on the facts. The arbitrator will look to the attorneys to accurately present the evidence. Count on it: the arbitrator will recognize when "zealous advocacy" becomes stalling, obfuscation or deception. Once any of these labels are pinned on you or your client, your chances of prevailing will be substantially diminished.
Most "slam-dunk" or "dog" cases settle. To win the arbitration of the closer cases, don't run away from bad facts or create issues where they do not exist. You only have to win the case, not every argument or examination. Present the case accurately, fully and logically. When your opponent strays from this advice, your client's position will appear stronger.

Organize and Agree Upon The Arbitration Exhibits
The arbitrator will expect that, prior to the commencement of the hearing, you and opposing counsel will have agreed on 75% of the arbitration exhibits. Normally, you will not want to make many foundational objections because some hearsay will probably be admissible, and foundational witnesses are easily subpoenaed. Don't fight unimportant battles you're probably going to lose. Agree on most of the arbitration exhibits and organize them in binders for easy access by the arbitrator. Have your paralegal update the arbitrator's exhibit binders daily. Have extra exhibit binders for the witnesses. Make the process as easy and smooth as possible.
Don't allow obstreperous counsel to prevent you from organizing and presenting the joint arbitration exhibits. The arbitrator will quickly understand the dynamics when you have agreed to admission of 75% of your opponent's evidence and he has objected to 75% of yours.

Don't Forget About Settlement/Mediation
As with court litigation, the month before an arbitration hearing will be fully occupied with preparing all the exhibits and witnesses. In arbitration, however, there is no court or judge forcing you to constantly think settlement or submit to mediation. Arbitrators may have a tendency to want to proceed to hearing and consider all of the evidence before reaching a resolution.
In the hustle to be ready for the hearing, don't forget about mediation or other settlement avenues. After expert witness reports and depositions have been completed and the hearing is looming, the issues will be clear enough and the pressure great enough to conduct meaningful settlement negotiations. An arbitration administrator, such as JAMS/Endispute or AAA, will be pleased to suggest one of their other panelists for a mediation session. Even apart from the benefits of discussing settlement, the mediator's analysis of your case will provide an important test of how the arbitrator is likely to react to your arguments. If you don't settle, you can re-tool your case for maximum impact on the arbitrator.

Request Time Limits For Presentation Of Evidence
While our business lawyer counterparts advise their clients that arbitration is "cheaper and faster," we trial lawyers know it ain't necessarily so. It can take a very long time before the hearing commences, especially where depositions are allowed or where three arbitrators and two law firms have to agree on scheduling a month long hearing. Without limits on evidence, the hearing too can take much longer than necessary.
At the first hearing before the arbitrator, propose a schedule with realistic limitations upon document discovery, any depositions and expert discovery. Discuss and schedule any dispositive motions.
Equally important, suggest time limits on the testimony by each side. An allocation of a certain number of hours of testimony (including all direct and cross-examinations by that party) works well. If your client is allocated a maximum of 42 hours of testimony, it is amazing how efficient your direct and cross-examinations will become. Your opponent will quickly whittle her witness list from 50 to 12 witnesses by the beginning of the second week of the hearing. With the help of the court reporter or the arbitrator, maintain a running log of the time used by each party and the anticipated time for the remaining witnesses. In this way, you'll know what you have to cut.

Pitch Your Case To The Arbitrators
This is an obvious, but critical suggestion. In a single arbitrator case, there is only one person you need to convince. Focus and present your case so that it will appeal to that arbitrator. Find out if he is a strict constructionist who is likely to enforce the terms of a written contract and the Evidence Code, or if he is more likely to resolve the case on the "equities." In shaping each argument and examination, think and re-think how your theme is likely to be received by the arbitrator.
In cases with three arbitrators, it is usually possible to determine which arbitrator will be the swing vote. Where one lawyer or judge is appointed along with two non-lawyer industry experts, you can be sure that the lawyer will find at least one other vote for her position. Where there are three judges or lawyers, examine their relationship to determine who is likely to be the leader and who is likely to agree with whom. Once you determine which arbitrator is most likely to sway his fellow arbitrators, pitch your presentation right at him.

Benefit From Relaxed Evidence Rules
Most procedural rules governing arbitrations will provide that the arbitrator is not bound by the rules of evidence, including the hearsay rule. See AAA Com. Arb. Rule 31 ("conformity to legal rules of evidence shall not be necessary"). Use these relaxed rules to shape an efficient yet compelling case. At the same time, many arbitrators will distinguish between foundational, non-controversial hearsay, and blatant out-of-court bashing of key contentions. Fight unreliable, controversial hearsay.
The less stringent rules of evidence normally applied in arbitration will provide your witnesses with greater latitude in their testimony. Your first witness can lay the foundation for the entire case, going beyond areas where he has strictly personal knowledge to subjects that will be dealt with more expansively by other witnesses. Let the witness become a mirror of your Opening Statement. Later witnesses can tie up the foundation and go into the necessary details. By using the principal witnesses in this broad manner, you should be able to eliminate purely foundational witnesses or witnesses with little to add.
As for objections to your opponent's evidence, you normally will not exclude a party's own records. While they may be hearsay, they probably qualify as business records with foundation easily established by a custodian of records. The arbitrator likely will not require the non-controversial testimony of document custodians. After testing the waters with one or two overruled objections, you probably want to agree to admissibility. But make sure the records were truly made in the ordinary course of business. If the record was made to support the litigation or to "summarize" events for counsel, it probably should not be admissible, especially where the author is unavailable to testify. You probably also will not want to object to non-controversial third party records where the custodian would be available to testify. But remember, the witness using the document should be admonished to limit hearsay testimony to the contents of the documents and not stray into assumptions about the meaning of the document or what was said by the third-party author in a follow-up telephone call. And remember that business records foundation cannot be established simply by receipt of a document in the ordinary course of business. The custodian of the organization that authored the document must testify. Cal. Evidence Code section 1271; Federal Rule of Evidence 803(6). However, a document received by a party may still be admissible to explain a party's subsequent conduct, although not for the truth of the contents of the document. If a critical third party document would not generally be admissible in court and if a custodian is not available to testify about its preparation, your hearsay objection is likely to be sustained.
Finally, most arbitrators will recognize that despite the loosened evidence rules, oral statements supposedly made by third parties to party witnesses should be excluded, especially where they concern a disputed topic. Confronted with a timely objection, a witness normally will not be allowed to testify about how a third party said that your client's product was defective. Supposed oral statements by third parties are highly unreliable and subject to complete fabrication. Remind the arbitrator that there is no way for you to test the truth of the statement by cross-examination and that it should be excluded absent the declarant's testimony at the hearing.

Don't Engage In Theatrics
While there may be a place for dramatics in jury trials, avoid it in arbitrations. After several days of a recent arbitration, one of the arbitrators emphatically directed opposing counsel to stop pointing at the panel while asking if our client's witness "truly meant to tell this panel of judgesÉ." Counsel soon quieted down. Normally, your arbitrator has seen courtroom dramatics many times, and is not about to let it influence her opinion. If anything, histrionics will count against counsel.
In argument, consider the example of an appellate lawyer who rationally and dispassionately presents his case. While your argument about credibility of the witnesses will be important, it probably should be understated in comparison to the same argument before a jury. Arguments about burden of proof and legal doctrines such as statutes of limitations and contractual limitations upon liability will become more important.
Show the arbitrator the respect her experience and expertise deserve by sticking to the facts and law and avoiding "showboating."

Constantly Re-Think Your Strategy
As you plan your case prior to the commencement of the hearing, you will not be able to predict precisely how your case will go into evidence and which witnesses will ultimately be most important or even necessary. The person that you viewed as a key expert prior to the commencement of the hearing may become unnecessary by the middle of the case.
Every night, every witness, re-think your overall case strategy and don't be afraid to change course. What has the arbitrator said or conveyed through rulings on objections or other comments? Is he apparently in agreement with your position and probably doesn't need to hear "reinforcement" evidence? Has your opponent made a new attack on a different front? Is your next witness vulnerable on that point? Are you running out of time? The ability to restructure strategy is a primary factor in making a great trial lawyer. Constantly re-evaluate your case and go with your best judgment (after obtaining your client's agreement!) as to how best to present the remainder of your case. And when your gut says it's time to stop, rest.

Submit Proposed Findings and Conclusions
Some arbitrators will forego closing argument in favor of simultaneous or responsive briefing, but consider arguing for the opposite approach. Post-arbitration briefing is expensive and time-consuming; it does not appear to add much, if anything, to a cogent oral closing argument made after one or two days of preparation.
Whether or not your arbitration concludes with closing arguments, prepare and present proposed Findings of Fact and Conclusions of Law. They normally should be brief (five to ten pages) but should highlight the key facts and law. The proposed Findings and Conclusions serve as the framework and path for the arbitrator's decision.
Also, submit a proposed form of Award. Consider submitting your proposed Award and proposed Findings of Fact and Conclusions of Law on disk. When the arbitrator finally reaches the conclusion that you were right all along, all he has to do is pull up your document, make some minor modifications, print, and sign.
Your best presentation in an arbitration hearing may be significantly different than the same case presented in court. Keep your eye on the arbitrator. Pitch your case to a position with which he or she will agree.

Mr. Riley is a partner in the San Francisco office of Cooley Godward LLP.

  Also in this Issue 
 Jan Nelsen Little & Ragesh K. Tangri Parallel Proceedings :
Criminal and Civil Litigation p. 2		 
 Peter J. BenvenuttiOn CREDITORS' RIGHTS p. 3 
 Zela G. ClaiborneOn MEDIATION p. 4
 

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