- Hi, my name is Deborah Masucci. I am an independent arbitrator and mediator and a member of the Adjunct Faculty at Fordham Law School. For the last four years, I've coached student teams in arbitration competitions. My focus is to provide the skills to new lawyers on how to effectively advocate in an arbitration setting. While trial advocacy skills are important, lawyers need to recognize that advocating and arbitration is different because arbitrators are the experts and for the most part, any decision is final with no right of appeal. Tactics taken in court to create a record for appeal have limited meaning in an arbitration proceeding. However, whether you call it a trial story or arbitration story, a story or theme is used in both trials and arbitration proceedings with different objectives. An arbitration story tied to the facts and law will focus the arbitrators on the issues you, as the advocate believe are important to deciding the dispute in your favor. The arbitration story threads through proceedings from beginning to end. So let's see how to develop a winning arbitration story. And what is the agenda for our discussion? In the next hour we will talk about the audience for your story and how to design a winning or persuasive story. The story may be very similar to what you would devise for trial, but the emphasis and characteristics are tailored for an arbitration proceeding. An integral part of the arbitration story is a catchy theme. Accordingly, we will discuss where and how you should emphasize your theme and story through the arbitration process and how to bring it all together in a powerful closing statement where you leave the arbitrators with compelling reasons to rule in your favor. In between all that, we will quickly discuss your theme and end story in direct examination and cross-examination. Who is your audience? Your primary audience is the arbitrator or the decision maker. You need to use words and evidence through exhibits and testimony to repeat and support your theme thereby convincing the arbitrator to rule for you. Give the arbitrator reference points throughout the proceeding to include in and support a decision. One would think that an advocate would do everything possible to help the arbitrator rule in the client's favor, it's amazing how many times an advocate does not do so. Make it easy for the arbitrator to understand your case and follow along. On the other hand, your client is also your audience. Show your client that you understand the case and have selected the strongest reasons to validate the claim. This is tricky because you wanna be truthful, but may also need to address bad facts, maybe against your client's wishes. However, you can mitigate the power of the bad facts by spinning them in the best possible light for your client. And I will show you how. Designing the persuasive arbitration story. I believe this slide is very clear. The story you develop is told about people who credibly explain their actions. The witnesses provide known and undeniable facts in a way that makes common sense. It is the advocate's job to organize the information so that each succeeding fact becomes more likely, persuasion is the key. You will develop a story that connects emotionally and logically. Both the claimant and respondent have a story to tell from their own perspective. It may look very different, but the advocate's job is to make sure the story is told through concrete words that are credible and persuasive. Make sure it makes common sense and has no implausible elements. The persuasive arbitration story achieves results. And yes, it does. Excuse me, the advocate marshals the information for the arbitrator so it is easy to understand and digest. The advocate tells the arbitrator who did what and how the who and what leads to the result you seek. Everything shown helps the arbitrator arrive at a resolution supported by the facts and the law. A major criticism of arbitrators is that their decisions split the baby. While some believe that arbitrators try to do equity and they use the analogy of splitting the baby in explaining equity, in my experience, arbitrators do their best to apply applicable law to proven facts and let the chips fall where they may to that end the advocate needs to clearly and cogently as well as persuasively demonstrate to the arbitrator what the law is and how the law compels an award in your client's favor. Do not assume the arbitrator knows what the law is even though they are the experts. Also in my experience, arbitrators never split the baby, but calculate damages based on the record, that is the information provided to them by the parties. Very often the advocate presents an all or nothing choice to the arbitrators. Keep in mind, alternative remedies should be presented to the arbitrator so results cannot be construed as splitting the baby. There are two principle aspects to consider when developing your story, the theme and the theory. The case theme is justified by legal and factual theories. The legal and factual theories apply to logic. It's what and why that leads to your client's winning. To develop a good case theme or justification, you should start with understanding the legal and factual theories of your case and that of your opponent. Oftentimes the advocate forgets that they really need to analyze the opponent's case, excuse me, and theories. In doing so you make your case stronger and your ability to counter any facts and anticipate any facts your opponent might raise. The legal and factual theories are interrelated and linked through law, information and the client's objectives. The legal theory is the legal framework developed from a review of applicable rules and standards, including statutes regulations, contract provisions, and case law. These are the rules that the parties operated under. The factual theory takes the information accumulated and organizes it into a coherent and logical story supporting your legal theory. The factual theory is the party's story, justifying relief under the legal theory and based on the information and inferences from that information. Identify the factual documents and testimony that support the legal elements of your claim. A weakness to the legal theory may be a gap, inconsistency, improbability, or a flaw in your factual theory. Weaknesses arise when key facts cannot be proved, are uncorroborated, come from a witness with credibility problems or remembered inconsistently by your witnesses. The theme is justified by theories that are persuasive and appeal to the arbitrator's sense of justice. The relevance of the facts to the theories should be apparent throughout the case presentation. Now, both the claimant and respondent have different theories as I will show you in the next two slides. The claimant's legal theory should show how the relief demanded is supportable. If the theory is too novel, it will invite a legal attack or rejection. When establishing a claimant's legal theory, consider the death difficulty in establishing it and whether the evidence necessary to support it is available. Consider showing alternative theories. For example, you might assert the employee was not insubordinate, but you might add that even if the employee was insubordinate, the disciplinary penalty that was imposed on the employee was too harsh. Now the respondent's job is easier than the claimants since the respondent will attack the claimant's theories. The respondent will say that the claimant may have established all the elements of the claimant's claim, but the respondent may assert that as a matter of law, the claimant's theories should not be recognized as one for which the arbitrator should provide a remedy. Said another way, even if the legal theory exists, the claimant's allegations are insufficient to permit the arbitrator to find one of the essential elements of that legal theory that has been proven. The respondent seeks to show that the claimant has failed to carry its burden of persuasion as to one or more of the elements of the claim. On this slide, I give several examples of what the respondent will do. They'll start with there's no such legal theory urged by the claimant, or then they'll say the claimant has not proven the facts required by the elements of the claim, or they'll say the applicable quantum of proof hasn't been shown, or they'll say the claim is barred because of a procedural insufficiency, such as untimely filing of an arbitration or waiver. And lastly, there also is affirmative defense, such as fraud and self-defense. Each of these elements are really based on the type of claim. So in this next slide, I will show you some examples of compelling themes. Since you now have your legal and factual theories, you now need a one sentence theme to communicate the theories. These are themes, some compelling themes, that have been used by my students in the past. This is a story about broken promises and bad faith. This is a case about greed, power and control. This case involves crush streams, trust, fraud, and greed. And lastly, a man lost an eye because a gauge manufacturer wanted to save a dime. So, as I said, these are just examples. They're catchy and they are remembered. So every good story starts with the development of an outline. You learned this in one of your English classes when you were in grammar school or high school. So what does the outline start with? You list the legal elements of each claim or defense that will establish your story. Then you'll list the potential documents or testimony that supports each element. Now you have to develop that outline even further. As you develop your outline, consider the testimony delivered at the beginning and at the end of the hearing is most remembered. Therefore select witnesses who can credibly tell the story. You're not required to use every witness, but you should select your witnesses carefully. Every case has a story to tell, that story should be simple, interesting and based on fact, not fiction. So select the order of witnesses based on what should be remembered by the arbitrator and create a logical progression. Prepare your witnesses to tell the story in their words, let them tell it. Commonly exhibits are an important part of that story. Make sure you integrate exhibits with testimony. In this regard, chronology is important, prepare a chronology or timeline, then find a way to use the chronology as an exhibit even just demonstrative one. As I say at the end of this slide, drama is music. Use the witness to build the suspense and drama and make the music. You should be mindful that your opponent may assert objections to certain witness testimony or the use of documents. Grounds to object to a witness or testimony include, privilege, competence and hearsay. Weaknesses of a witness's testimony include inconsistency in testimony, the witness' character and impeachable prior statements. I just wanna step back and talk about the first grounds, privilege, competence and hearsay. This is where you should remember you are in arbitration proceeding. And one of the answers to a party objecting on each of these bases is to say, madam or sir arbitrator, this is arbitration and the arbitrator is permitted to accept the evidence and determine the relevancy and the weight that they wanna place on that evidence. In this way, you'll get to have the arbitrators accept more rather than less of the testimony or exhibits. Now that you've developed your outline, that includes your theories of the case, use your outline to develop a compelling opening statement and build on it to develop the direct and cross-examination questions. Determine how the witnesses and exhibits support your theory. As you develop the questions, integrate documents and then repeat the opening elements into your closing statements at the end. What you tell the arbitrators you will prove in your opening statement should be paralleled in the closing statement where you tell the arbitrators what you proved and how. Exhibits, as I keep saying, they're an important part of your presentation. Organize the exhibits chronologically or by issue. Eliminate duplicate copies of exhibits. There should be only one exhibit that is the contract is at issue. Sometimes parties make a mistake of entering pieces of each exhibit, shouldn't do it, one exhibit and the pages should be numbered. You should also number the exhibits so there is only one, exhibit one. You want the arbitrator to be able to easily find, track, and follow exhibits and witness testimony. Tell the arbitrator how you've organized your case. All of this is important because you wanna coordinate it with your opponent so that there's not a lot of duplication. Put all exhibits in one or more tabbed ringed binders. Be sure the arbitrator has their own set of exhibit binders. All advocates and the witness should also have their own set. Don't expect to look over the arbitrator's shoulder. Don't use binders with more than three inch spine. When filled with paper, large spine binders are too heavy and unwieldy. Put a few extra tabs in the arbitrator's binder to accommodate the inevitable late exhibits. When bringing additional exhibits to the hearing for insertion in the binders, make sure the exhibits are hole punched so the arbitrator can easily add them to his binder. Consider using a separate binder of core exhibits that will be referred to frequently during the hearing. A tactic often overlooked is using collateral material to emphasize the opening or closing statements. You can do so with PowerPoints that create a timeline or cartoons, even that support your theme. You can use photos or critical documents that will be presented as exhibits especially if the parties have agreed to stipulate to the admission of all exhibits at the beginning of the proceeding. If you use collateral material for your opening, make sure to secure your opponent's agreement to the collateral material before the opening statement is delivered and make sure the arbitrators know about the agreement. In deciding what technology to use and how, remember that the point of the hearing is to tell your side's story to a particular audience, the arbitrator. Ask yourself if your proposed tech aid facilitates the telling of that story or gets in the way. You will have presented exhibits in paper form commonly in the tab during binder, which both the arbitrator and the witness will have available during the hearing. Putting exhibits up on a screen is frequently unhelpful and often counterproductive this is because in general, ambient lighting makes it difficult to read and follow along and extinguishing the lights makes note-taking difficult or impossible. However, if there is a key phrase or section in an exhibit that you wish to highlight, have a large and readable blow up made, it will be easier for the arbitrator and witness to read and assimilate. Most arbitrators appreciate council highlighting and a yellow marker does the job nicely, key portions of the exhibits in their binder but explain that the highlighting is your marking that you did to make it for ease of identifying what you want to exemplify so the arbitrator doesn't think that the document was marked by a party or witness. The same holds true for squibs from deposition transcripts. If you're using technology, be sure you practice beforehand so that your presentation is flawless. If you are using a video squib from a deposition, for instance, limit use to the really important parts and queue up any squibs so that the presentation is effective. If you intend to use a PowerPoint presentation, whether during your opening or closing argument, be sure to print off a copy and give it to the arbitrator and opposing counsel before the argument. Now, some of these tips are used also for virtual hearings, but what I'm recommending is really generally used for the case in chief where the arbitrators and the parties and the witnesses are in the same room, not viewed virtually. The main goal of an opening statement is to present your theme bolstered by a clear picture of your evidence, including a brief description of the major events, actors, disputes, and contentions involved in the case. It is also to arouse the arbitrator's interest in your case and in your theory and to show the arbitrator, if you go second, that there's another side to the story. Here is a bullet list of my suggestions for making a good opening statement. One, be lively but don't be too dramatic. Convey a sense of commitment and sincerity while avoiding impassioned please emotional outbursts or bombastic rants. There's little chance that such theatrics will help your cause before an arbitrator. This is not Perry Mason for those of you who are of an age to remember that. Next, be prepared. If your opening some thought don't wing it, but understand you probably don't need to write it down verbatim. You know your facts, go with what you know. If you need notes, prepare a short keyword outline. If you do write out your opening, avoid reading it to the arbitrator. Next, be short and sweet. Get all the salient facts, the who, what, where, when and why. Tell the arbitrator what remedy you will request and then stop. Next, don't overstate your case or over promise what your evidence will show too aggressively. I say too aggressively advisedly because the jury behavior research suggests that taking some liberties when the evidence and opening statement can sway jurors to see evidence your way. In other words, spinning the evidence can work if done in a reasonable way, but this is arbitration and you're likely to get caught. Don't pander to lecture or patronize the arbitrator. Now, several of these suggestions apply generally to all stages of arbitration advocacy. For instance, arbitrators are unlikely to be swayed by histrionics and quite likely to respond negatively to pandering or similar behavior of an advocate. Remember, the goal of the opening statement is to provide a roadmap for the arbitrator about your plan. Build credibility and trust with the arbitrator and persuade the arbitrator that you are right and that the decision should be made in your favor. Well, here's another tip on this slide. Don't use overly complicated language or descriptions. More than a few years ago, there was a movement to rewrite contracts and legislation in plain English. This is also important in an arbitration context. Yes, you are the smartest person in the room because you know your case better than anybody else, but if you use words that are overly complicated, you will lose the attention of the decision makers. Here are some examples. Don't say aircraft unplanned severe contact with the ground when you really wanna say there was a plane crash. Don't say incorrect diagnosis leading to injury when you really wanna say, this is an action of malpractice. Don't say shortened lifespan when you really wanna say someone is dying. Those are some quick suggestions on the communication issue. You should also communicate with your body, voice and words, but not overly communicate. People who come from Latin cultures are known to use their hands and body when speaking. Advocates should consider how hand movements and voice will help support the delivery of an opening statement. Use of their body and hands should be natural. Word should be paced for emphasis as well as the modulation of your voice. Do not overuse hand movements. Overuse can be distracting and destructive so be careful. Repetition and enumeration of points are common ways to reinforce your theme and story, but don't overuse these tools. On the other hand, you can compare facts and show connections when formulating questions for direct examination. Ask simple direct questions to illicit facts one at a time. Compound questions lead to meandering answers that only confuse the decision maker. You might find the arbitrator breaking in trying to ascertain what is it, that what is your point? And you really don't want the arbitrator to impose themselves at that point in time. Is there permissible and impermissible argument in the opening statement? It's very rare that a party objects to another party when they're in the middle of their opening statements, but it could happen. There are two tests for what can or cannot be included in the opening statement. And for simplicity, they're called the witness or the verification test. Under the witness test consider can a witness take the stand and testify to the information that is being told in the opening statement? If so, then the information is permitted. However, if the witness doesn't exist or the testimony can be excluded, then it's argument and not permissible. That's the witness test. Under the verification test consider, can the remarks be verified through testimony or evidence? If so, then it's permitted. If not, then the remarks are impermissible argument. So keep those two issues in mind, Ethics. We can't have a CLE without touching on the ethical obligations of the lawyer and here advocates are dictated by the ABA model rules for professional conduct. And as I said, everything a lawyer does has an aspect covered by ethical considerations. The model rules for professional conduct referenced here, guide an advocate in arbitration. The lawyer is prohibited from making a false statement to the tribunal and further the advocate is prohibited from presenting information that the advocate does not believe is relevant or supported by admissible information. You should look at Model Rules of Professional Conduct 3.3 and 3.4 and their discussion for further guidance. Now, we're still on opening statements and we're really talking a lot about the requirements for the opening statement, but do ADR provider rules have any rule that references opening statements? The answer is no, but FINRA, the ADR provider that covers securities industry disputes, they have extensive education guides for arbitrators and they also have scripts that they provide arbitrators on how an arbitration proceeding should go forward. FINRA provides the arbitrators with that standard script for the arbitration proceeding and it explains to the advocate and in fact, what happens is that the arbitrator states this in the beginning of the proceeding when the arbitrator invites the advocate to make an opening statement, the arbitrator says that the opening statement should be limited to what the party plans to prove and not be a presentation of the evidence or merits of the case. You should try and use that as a guide when you are creating your arbitration story and developing your outline for an opening statement. What are the elements of a good opening statement? Well, first of all, as I've said previously, don't read the opening statement, but bring in an outline. The opening statement should be no more than 10 minutes, maybe 15, but not 30 minutes. You will have the arbitrator is really itchy at that point. Lawyers should have a one sentence theme for their cases. So if you stick to that and I've been repeating that over and over again, but if you stick to that, and you keep the opening 10, no longer than 15 minutes, you will be able to catch the attention of the arbitrator. Emotionally based themes often serve as anchors. They create impressions for the arbitrator that linger until the time the case is decided. Remember the themes I showed you earlier. Themes keep the arbitrator's attention and help organize information,. Relying on a theme and hearing a story that incorporates the theme helps make the information enjoyable and easier to comprehend. Now, I use the word enjoyable only because it's a pleasant word. I recognize that being in an arbitration proceeding is hardly enjoyable. There's a lot of tension, but you want people to accept the information that's being received or given and in order to have that acceptance, it's best to frame it in enjoyable terms. Lawyers should engage the arbitrators and effective themes combined with engaging stories can fight arbitral boredom. There have been many times that I've sat in arbitration hearing and the arbitrator has closed their eyes or seem to doodle off because the lawyers are not engaging the arbitrators. Present your theme immediately in your opening statement to catch the arbitrator's attention. So for example, you can say something like this. This is a case that a man who found the place where he wanted to live his sunset years. He met a slick salesman who made promises creating the home of his future where he would enjoy a comfortable, relaxed life. Instead, the home he dreamed of was a hovel be set with construction defects, broken pipes, and sinkholes. My client was faced with poor repair service, increased costs and unending expenses, forcing him back into the workforce. So you could see that in a few sentences, I've painted a picture of someone retiring, wanting to live their life well and instead had to face a very dastardly situation. Remember, not to argue your case, but present a story in the present tense while supporting the theme with a persuasive sequence. And again, don't forget to ask the arbitrator to rule in your favor and tell them what you want them to award. Here I talk about describing your client. Well, the first thing I say is humanize your client, help the arbitrators relate to your client so the arbitrators can put themselves in your clients' shoes as they view the evidence and make their decision. Make them realize that if this state of facts was presented to them, how would they react? Also, keep in mind, even a company can be humanized. One way to do this is by showing the company as a member of the community that supports the community by fundraising and other community activities. Companies are made up of people. You can use rhetorical questions to focus the arbitrator on the client and the people that comprise that company. People make up companies, they do things for people, they live in the community for the most part. So it's easy, it can be easy to humanize the company, but describe your client. You might even look at your client as you're describing your client to make sure that the arbitrator is also looking at the client and considering the client. A side issue that I didn't put in the slide is that you might wanna coach your client on what to wear and how to portray themselves. A bad illustration, but in a securities case that I was involved in many years ago, the allegation was that the registered representative defrauded the claimant, a customer who was a widowed woman. The registered representative came in the first day with a Rolex watch and a very expensive suit. The next day, the Rolex watch was gone and the expensive suit was substituted by a rather inexpensive, but not cheap, but an inexpensive suit. You don't wanna play into a stereotype when so much is at stake. So bad facts. What do you do about bad facts? When should you let bad facts out? Do you talk about them in the opening if they're likely to come out at trial? Well, you have several options presented to yourself. You can address bad facts in you opening to cut the sting before they're raised by opposing counsel. You can present all of the issues in your opening for credibility purposes, but I would say don't ignore bad facts or weaknesses in your case. Address them directly in your opening or maybe in the direct testimony. Don't stick your head in the sand and pretend that there aren't any. Bring out these little problems, but while you're doing that, put your own spin on them. If the arbitrator believes that you're willing to expose the problems with your case, you may seem more credible. And remember the other side if they know about it, they're gonna bring it out. The other way to address the harmful information is to wait until the information comes out. If a lawyer exposes the harmful information, maintain the case and draw greater attention to the information. The hearing will provide the lawyer with an opportunity to address any charges that the other side will make. You can do this by recalling a witness. A lawyer must essentially make a determination on a case by case basis as to whether and when to introduce the bad fact. If claimant's counsel introduces the negative information, it may not be necessary for death defense counsel to bring it up again in their opening statement or their direct case. So you have to figure out your strategy and what makes sense for your particular case. You have to plan the direct examination and prepare your witnesses. As you prepare for the hearing, determine what you need to show the arbitrator to establish your claim. After that you then select your witnesses and exhibits with that in mind. Avoid unnecessary, irrelevant, and cumulative testimony as well as evidence. Present a straightforward and streamlined case. Arbitrators are people and respond to a compelling narrative. They also get bored and lose concentration when testimony drags on or rambles. So keep your case moving. Readying your witness is an essential part of preparing for the arbitration hearing Such pre-hearing witness preparation helps speed things up by making testimony more succinct and relevant to the themes and theories of your case. When done properly, it encourages lay witnesses, not to ramble, contradict themselves or offer irrelevant details or opinions. You should gather your facts, identify your witnesses, and collect the relevant exhibits. Based on that evidence and applicable law, you should then determine your theory of the case and themes you wanna highlight. Prepare your witnesses carefully so that they know the roles they will play in painting the picture you want to put before the arbitrator. Coach your witnesses to speak in plain English and to provide details that will bring your case to life. Organize your themes and theories in an engaging manner. Plan to present your case efficiently so that you focus on the arbitrator's attention and keep him or her engaged in your narrative. Try to wave your theme into how the questions are presented and answered by the witness. So how about cross-examination? Cross-examination is one of the most powerful tools available to counsel. You should anticipate the witnesses your opponents will present and develop questions based on what you perceive are your opponents strengths and weaknesses. Do not ask open-ended questions on cross. If you do so you'll be giving the witness an opportunity, whether it's the first or another opportunity to tell his side of the story. You want cross-examination to reinforce your side of the story. Do not ask questions to which you do not know the answer. It's a bad idea unless you don't care what the answer is, but most of the times you can be surprised and it will hurt your case. Do not try and use cross to prove your case in chief. What you really should do is look for opportunities to bolster your case while you're listening to your opponent's direct examination of that witness and then you can pepper cross-examination questions that support you. Do not spend time on cross-examination laboriously challenging every iota of the witness' direct examination, especially as to matters that are not important. Well, what other tips can I give you on cross-examination? Well, here you want to diminish the persuasiveness of your opponent's story by defeating the logic of their story and undermining their theme or moral compass. Generally the most that council can hope for from a witness on cross-examination is that some inroads can be made debunking a point of the other side's case. If you prepared your case well, you will know what points you can get from the witness on cross. Make a short list and use it. Except in unusual cases, resist the temptation to grill the witness for hours on everything he or she said on direct. While there's truth to the death by a thousand cuts maxim, it is rare that such a strategy yields significant results in a hearing. When framing questions for cross-examination, unlike the direct, what you want to do for the most part is try to get the witness to say yes or no answers. So you frame the question as isn't it true, and this way you narrow the questions so the witness doesn't ramble and you get the yes or no answer that you want to get. What do you do about the relief you're asking for, I said this many times in this last 50 minutes, but tell the arbitrator exactly what relief your client wants and why. State it in your opening statement, you say it like the evidence will show that and that an award of whatever should be entered, state it again in the closing argument. A tactic I've seen many advocates use, they consider giving the arbitrator a draft award, laying out the relief your client wants he or she to award. Sometimes arbitrators will even ask that you provide post-arbitration hearing draft award, but you can be proactive and lay it out yourself. And in that, if you want injunctive relief, say so and tell the arbitrator what conduct should be prohibited and for how long, give the arbitrator a legal basis for such an award. If you're seeking pre-award interest, specify the date and amount on which such interest should begin to run and the interest rate that should be used and why. Don't expect the arbitrator to make the calculations. Arbitrators like lawyers in general are not mathematicians. You also will get the award much faster. Also be careful what you ask for you, may get it. In general attorneys fees are affordable only where specifically provided for in the contract or the statute. However, if your arbitration is administered under the AAA's commercial rule, be aware of Rule R. 43D which says the award may include an award of attorney's fees if all the parties have requested such an award, or it is authorized by law or their arbitration agreement. Asking for attorney's fees only because your opponent has requested such relief, and there is no statute or contract authorizing it, can expose your client to an award for substantial fees even if they would not otherwise be available. Important tactics. All right, so now we went through the opening, creating the story, the opening, direct and cross-examination and now very important, you need to finish with a powerful closing statement. Here again you finish with repeating your theme in one sentence. You explain how in your proceedings you've really shown how the witnesses support your theme. You address those bad facts. This is one where you can or you may want to just forget it and strategically you need to consider whether you should explain how you address bad facts. Again, tell the arbitrators what remedy you seek and ask the arbitrators to rule for yourself. And one matter of courtesy, remember to thank the arbitrators for their time and attention. Avoid some of these closing statement mistakes. Don't misstate the law. Arbitrators will call you out on a misstatement of law. Don't misuse or mischaracterize the evidence. Arbitrators will have taken notes throughout the proceeding and if you do misuse or misstate the evidence, then they'll call you on it and it really negates your theme and your story. Do not introduce new evidence. For this you will definitely get an objection from your adversary. We covered a lot of material in the last 55-plus minutes. I'd like to leave you with short tips and ideas to remember from this presentation. First, creating an arbitration story is similar to a trial story with slightly different focus and objectives. The arbitrator is an expert so you can expect a level of knowledge not faced in court. However, just like you need to capture the attention of the jurors who will make decisions in court, you need to capture the attention of the arbitrator with a gripping theme. Here are some tips. First, know your audience. Your primary audience is the arbitrator. You need to create trust and credibility with the arbitrator as early as possible and maintain that trust and credibility throughout the proceeding. Remember your secondary audience is your client. You wanna show your client that you understand the case and will be a strong advocate for the relief sought. This is important, especially if you plan to directly take on bad facts so you can control the narrative. You are on your client's side and you need to have your client trust you so you need to show them that you know the case. Second, construct the story with a compelling theme. The theme should be one sentence and should be repeated several times throughout the proceeding, but especially in the opening statement and the closing argument. Third, develop factual and legal theories that support the theme. The legal and factual theories appeal to logic. It's what and why that lead to your client winning. The legal theory is the legal framework or rules that the parties operated under. The factual theory takes the information accumulated and organizes it into a coherent and logical story supporting your legal theory. The factual theory is the party's story, justifying relief under the legal theory and based on the information and inferences that's disclosed. Fourth, preview your story in a compelling opening statement. The main goal of an opening statement is to present your theme bolstered by a clear picture of your evidence, including a brief description of the major events, actors, disputes, and contentions involved in the case. The opening statement should be 10 to 15 minutes and should reinforce your story and theme by explaining to the arbitrators what you plan to show and how by witnesses and documents. Don't forget to end the opening by telling the arbitrator what relief you seek. If there are alternative versions, ask for the relief in the alternative. Fifth, carry the story forward using witnesses and documents. Remember you do not have to call every witness, call those who support your story and theme. Prepare the witness to tell the story in the witness' words, also ask very simple questions that are intended to elicit information one at a time. Don't let your client wander off into the wild blue sea with an answer that may confuse or distract the arbitrators. Use cross-examination to reinforce your story. Prepare your direct witnesses for cross-examination by anticipating your opponent's case. When you're cross-examining your opponent's witness, ask questions where you know the answer and you can control the witness. You are cross-examining by framing the questions to elicit yes or no answers. Sixth, be organized with binders of exhibits that you and your opponent have stipulated to admit without objection. Consider using technology or practice the operation to ensure it goes smoothly at the hearing. If you create timelines or other documentation to show at the opening or even the closing, make sure you have your opponent review it and agree to allowing you to use that timeline or other document. Finally, bring it all together at closing with a statement that reinforces your theme and story and shows how you supported the legal and factual theories through witness testimony and documents. Remember to sum up by telling the arbitrators the relief you seek with alternatives if possible. And then thank the arbitrators for their time and attention just like I'm thanking you now for your time and attention and listening to this CLE. Thank you.