Draft 2015-06-15 An Arbitration Scheduling Order Drawing on the Manual for Complex Litigation for Faster, Less-Expensive Awards
Motion practice is to be expedited
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- Documents and exhibits are to have consistent numbering
Motion practice is to be expeditedSimple motions or other requests that require the arbitrator’s approval (e.g., requests for approval of discovery), especially agreed motions or requests, should be made informally by email to the arbitrator with a copy to all other parties and to the Case Administrator. The arbitrator expects that many motions will be taken up at one (or more) of the scheduled case-management calls. Per AAA Commercial Rule R-33, short, simple proposals for dispositive motions are encouraged, but to keep costs down, such motions may be filed only with arbitrator approval. COMMENT: This provision, based on AAA Commercial Rule R-33 (and AAA Employment Rule 27), lets the arbitrator screen proposed dispositive motions before counsel for both sides have to incur the expense of legal research and brief-writing. Before filing a motion, the movant’s counsel must confer with opposing counsel; the motion must include a certificate of conference. Motions concerning the merits are not to be accompanied by briefs without the arbitrator’s advance approval. Such motions instead are to refer to the relevant discussions in the Chronology (see section 4.2). Each party is to update its portion(s) of the Chronology to the extent necessary to support its contentions relevant to the motion. Per AAA Commercial Rule R-33, on motion, the arbitrator will enter a full- or partial summary award as to any or all issues if it appears that (1) there is no genuine dispute about any material fact in respect of the issue in question; (2) fairness does not require postponing a decision concerning the issue until the non-moving party has an opportunity to take specified discovery; and (3) as to that issue, the moving party is entitled to an award as a matter of law. COMMENT: As U.S. litigators will immediately recognize, this provision is modeled closely on Fed. R. Civ. P. 56. Some arbitrators might categorically refuse to grant summary judgment, even when it seems clearly appropriate, for fear that a court might find that the arbitrator had “refus[ed] to hear evidence pertinent and material to the controversy” and consequently vacate the award under 9 U.S.C. § 10(a)(3). Such categorical refusal doesn’t do the parties any favors, because it can needlessly increase costs and delays for all concerned. One of the authors recently served on a three-arbitrator panel that granted the respondent’s motion for a “take nothing” summary-judgment award in a multi-million-dollar technology license dispute. Shortly afterwards, the author recounted this (without identifying details, of course) to a friend who is an experienced business litigator. The friend threw his hands in the air and exclaimed “Hallelujah!”; he explained that one of the things that frustrated him the most about arbitration was the seemingly-categorical unwillingness of some arbitrators to grant summary judgment. Use of the various hearing-plan provisions here should significantly lessen the anxiety of a summary-judgment award, because the procedures established by those provisions will help counsel and the arbitrator to ensure they are focusing on important, relevant issues. Motions in limine (including so-called Daubert motions) will normally be decided by determining the weight to be accorded to the objected-to evidence, as opposed to determining whether or not to categorically exclude the evidence. COMMENT: This practice is favored by some arbitrators because it can help protect the award from challenges, under § 10(a)(3) of the Federal Arbitration Act, that the arbitrator failed to consider all pertinent and material evidence. Briefing- and oral-argument schedules for motions, if any, will be determined on an as-needed basis, normally in consultation with counsel for the parties. Documents and exhibits are to have consistent numberingCounsel are to agree on a uniform production-numbering scheme to uniquely identify each page of each document exchanged or produced. Optionally (but preferably), an alphabetical prefix may be used in a production page number to indicate the party that produced the document. COMMENT: This is a common practice in litigation. Alternatively, blocks of production page numbers may be allocated to the parties. Counsel are to agree on a uniform exhibit-numbering scheme to uniquely identify each exhibit. The exhibit-numbering scheme will preferably allocate blocks of exhibit numbers to each party; for example, the exhibit-numbering scheme might allocate numbers 1 through 999 to Claimant; numbers 1000 through 1999 to Respondent; etc. Exhibit numbers may include an alphabetical prefix to identify the party offering the exhibit into evidence. COMMENT: This is also a common practice in litigation. For ease of reference, throughout the proceeding, including in depositions, each exhibit is to be uniformly identified by all parties for all purposes; counsel are not to offer duplicate exhibits having different exhibit numbers into evidence. COMMENT: The prohibition against duplicate exhibits is suggested in MCL 11.441 at 72, last grammatical paragraph, and § 12.13; similar prohibitions are imposed by some federal-court local rules, e.g., LR-26-3.2 of the U.S. District Court for the Central District of California, at http://goo.gl/wgBVCF (CACD.USCourts.gov). 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