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Over the years, I have presided as an arbitrator in hundreds of arbitrations, roughly half of which involved third-party liability claims, and the other half involved first party claims; i.e., uninsured motorist, underinsured motorist and PIP cases. While there are no hard and fast rules, I think there are things that can and should be done when representing a client (either an insured or the insurer) in a case involving a first-party claim that wouldn’t be done when handling a court-annexed arbitration. 

Read the Insurance Policy. Let’s face it, insurance policies are boring to read. They are, however, critical when handling a first-party case. It is not enough to simply know how much coverage is available. (In other words, don’t just read the dec sheet and be done with it.) If you are, for example, handling a UM case, read the section entitled Uninsured Motorist Coverage. If you represent the claimant, be sure you have met the criteria needed to establish coverage. Additionally, make sure the applicable policy provision is no less restrictive than what is provided by statute in ORS chapter 742. The statute controls if the policy is less favorable to the insured party.

Selecting Your Arbitrator. Most policies provide that first party cases will be arbitrated to a panel of three arbitrators: The claimant’s arbitrator, the insurer’s arbitrator, and the “swing” arbitrator selected by the parties’ arbitrators. When you have three arbitrators’ and two lawyers’ schedules to contend with, it usually takes many months to find a hearing date that works for everyone. If you represent the claimant, you may want to suggest to opposing counsel that you stipulate to a sole arbitrator (i.e., the person who might otherwise serve as the “swing”) so that it takes less time to get your case to hearing. This is particularly important if your client is elderly or is otherwise in need of an “expedited” hearing. Insurers often prefer a single arbitrator to a panel of three because of the cost (the insurer is responsible for paying all of the arbitrators’ fees but for $100). Some insurers will agree to waive the insured’s portion of the arbitrator’s fee ($100) if a sole arbitrator presides over the hearing.

If the choice is made to go with a panel of arbitrators, be sure to discuss potential swing arbitrators with your arbitrator before s/he talks to your opponent’s arbitrator. Notify your arbitrator that you do not want him/her to agree to a swing until you have okayed the selection of that person. The swing arbitrator is typically considered to be the “presiding” arbitrator who administers the oath, rules on objections, and writes the opinion letter at the end of the case. You want to be sure you and your client are comfortable with the person who fills that role.

Establish the Ground Rules with Your Opponent. If you are arbitrating a UM or UIM case, be sure you talk with opposing counsel ahead of time about (1) whether policy limits will be disclosed to the arbitrator(s), and (2) in the case of a UIM claim, whether the amount of the underlying settlement will be disclosed. If there is no agreement about how this information will be handled, the issue(s) will need to be raised at the time of the hearing (without revealing the amounts). The arbitrator(s) will then decide whether limits and/or the amount of the underlying settlement will be disclosed. 

Applicable Rules. Most casualty insurance policies contain a provision that says that the state court rules governing procedure and admission of evidence will be used in first-party arbitrations. This means that the parties in a UM, UIM and PIP arbitration must comply with Chapter 13 of the Uniform Trial Court Rules. Consequently, the rules regarding pre-hearing statements of proof, disclosure of witnesses, exchange of documents, and the like, are to be followed. If these rules are ignored, there is a risk the arbitrators will prevent you from introducing evidence at the time of the hearing.

Evidence at the Hearing. In most court-mandated arbitrations, it does not make economic sense to bring a medical expert to the hearing to testify. In a UM or UIM case, however, the damages and limits may be sufficient to warrant that expense. In almost all instances, a doctor’s testimony is much more edifying, compelling and persuasive than a written report. It is particularly important to have your medical expert (both treating doctor and independent medical examiner) testify in person if the injuries are complex, there is a significant causation issue, or the issue is the reasonableness and necessity of treatment. 

Demeanor. Bear in mind that if you represent the insurer and the person bringing the claim is a long-time premium-paying policyholder, you may want to treat that person with more respect or courtesy than you might a third-party plaintiff. 

Delivery of Documents. If you have a panel of arbitrators, get copies of your exhibits to them (and opposing counsel) at least a week before the arbitration. You want the arbitrators to be able to read all of the materials before the hearing so they can deliberate immediately following the hearing. If the documentary evidence is not submitted to the arbitrators until the day of the hearing, they will likely have to reconvene at a later date, which may take considerable time to schedule.

Take the time to explain to your client what to expect in arbitration. Remember that this is probably the first time the client has ever been through something like this. In the client’s mind, arbitration is akin to going to court. What is routine for the lawyer, is nerve-wracking for the client. Nervous, edgy clients tend to make mistakes while testifying. This may adversely impact their credibility. You want your client to be able to make their very best “appearance” as a witness.

Take the time to go over the complaint (or answer) allegations with your client. All too often, clients have no idea what their lawyers alleged on their behalf. They get very confused when they are asked on cross-examination: “Isn’t it a fact you are alleging…?” Your client should know what “their” position is before the hearing. (By going over the allegations ahead of time, you might even discover that your position varies from your client’s.)

Be sure your client has a copy of his/her deposition prior to the hearing and has reviewed it. Explain how the deposition is likely to be used by the other side’s lawyer. Prepare them for any inconsistencies in their testimony that you expect to be elicited by opposing counsel.

If you represent a client in a personal injury action, go over their medical records with them ahead of time. Be sure to point out the “problem” issues in the records that you expect to be elicited by opposing counsel.

Arrive at the hearing at least ten minutes ahead of time. Give your client the opportunity to settle in and get used to the surroundings before the hearing starts. If you arrive late or right when the hearing is scheduled to begin, you have not only inconvenienced the arbitrator but you have also flustered your client right from the start. Remember, you want your client to be able to make their very best “appearance” as a witness.

Give some thought to how you position your client at the hearing. Your client’s back should not be turned to the arbitrator.

Instruct your client to direct their testimony to the arbitrator as much as possible. Eye contact is important for establishing credibility.

Be sure your client understands that engaging in a verbal battle with opposing counsel during cross-examination will not inure to their benefit.

Advise your client to stop testifying if opposing counsel raises an objection. Explain that the arbitrator will make a ruling and the client will be advised as to whether s/he can complete their response.

Inform your client that the arbitrator may ask him/her questions. Explain that an evasive response given to a question propounded by the arbitrator is a major faux pas.