Subpoenas must state the applicable legal authority

Subpoenas must state the applicable legal authority

1. 
   Any party requesting the issuance of a subpoena is to serve a copy of the request and the proposed subpoena on all other parties at the same time as the requesting party makes the request of the arbitrator.
   
2. 
   Any subpoena that a party wishes to be issued to a third party for discovery purposes (as opposed to for hearing purposes) must include a prominent citation of the legal authority under which an arbitrator may issue such a subpoena for that purpose (in part for the purpose of educating the recipient of the subpoena and/or the recipient’s counsel).
   

3. 
   In some jurisdictions, arbitrators do not necessarily have authority to issue third-party discovery subpoenas. For third-party discovery desired in such jurisdictions, upon request by a party (and after any other party has an opportunity to be heard on the request), on a case-by-case basis the arbitrator will consider, in the arbitrator’s discretion, conducting one or more special discovery hearings in such jurisdictions.
   

7. The hearing

   1. The hearing will begin: Tuesday of Week 12

      1. 
         The hearing is to take place as stated in the heading of this section 7.1.
         

2. 
   The arbitrator, in consultation with the parties’ counsel, may determine whether to conduct one or more issue-specific hearings by conference call (and/or video call) and written evidence.
   

• 
  AAA Commercial Rule R‑32(a), which authorizes the arbitrator to “direct the order of proof, bifurcate proceedings and direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case”;
  
• 
  AAA Commercial Rule R‑23, which contemplates the possibility of multiple hearings;
  
• 
  AAA Commercial Rules R‑35 and P‑2, which contemplates that witness declarations may replace direct testimony;
  
• 
  AAA Employment Rule 8(o), which contemplates that testimony may be by affidavit.
  

3. 
   In exceptional cases such as illness of a necessary participant, the arbitrator will consider delaying the start of the hearing.
   

2. A short recess may be taken after opening statements (if any)

   1. 
      The arbitrator will normally direct the parties, in advance, to focus their opening statements on particular issues or to dispense with opening statements altogether.
      

2. 
   The arbitrator may recess the hearing for a brief period after opening statements to permit the parties and their counsel to explore whether they now wish to discuss settlement.
   

3. Live witness testimony is to be expedited

   1. 
      Each party is to make arrangements to schedule the attendance of its witnesses so that the case can proceed without unnecessary delay.
      
   2. 
      Each party presenting evidence is to advise the other party in writing of the names of the witnesses who will be called to testify the next day and the order in which the witnesses will be called.
      
   3. 
      To reduce costs, the parties are strongly encouraged to agree to use videoconference technology for witness testimony, especially for non-critical matters; in deciding whether to allow such use absent agreement, the arbitrator will give due weight to the value of witness presence.
      

4. 
   Expert witnesses are to testify in a “hot tub” group-discussion format to the extent practicable.
   

5. 
   In consultation with counsel, the arbitrator may direct that selected fact witnesses likewise testify in a group-discussion format.
   
6. 
   The services of a court reporter may be obtained in accordance with AAA Commercial Rule R‑28.
   
7. 
   Subject to any applicable legal- or ethical constraints, any counsel or other party representative may interview a consenting witness or prospective witness (“individual”) and discuss the individual’s prospective testimony with him or her.
   

8. 
   Copies of exhibits to be used should be available to a witness on the stand and in the hands of counsel before an examination begins. If voluminous, relevant exhibits can be kept, for example, in tabbed notebooks stacked on a cart located within easy reach of the witness, counsel can direct the witness to the volume and tab number of exhibits as needed.
   

9. 
   The arbitrator will not instruct a witness to answer “yes or no” to questions that (1) are compound, (2) require the witness to make or accept a characterization rather than testify to a fact, or (3) are argumentative in form or substance.
   

4. 
   
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