Exhibits will be admitted if not timely objected to

Exhibits will be admitted if not timely objected to

1. 
   All exhibits offered into evidence will be admitted if not objected to at or before the final scheduled case-management conference call. (Admission of an exhibit into evidence, though, does not mean that the arbitrator will give the exhibit any particular weight, if any at all.)
   

2. 
   A party’s failure to object to admission of an exhibit does not affect the party’s right to contest the relevance or probative value of the exhibit.
   

10. Exhibits may be streamlined

    1. 
       Documents offered into evidence may be (and preferably will be) redacted to eliminate irrelevant matter; likewise, “excerpt” exhibits may be offered into evidence, subject to verification of their accuracy.
       

2. 
   Any party may mark, with colored tape flags and/or with colored highlighters, particular pages of a document being offered into evidence. Each party is to consistently use its own color of tape flag and the same color of highlighter; counsel should agree in advance on color schemes. Electronic PDF copies may be likewise marked.
   

3. 
   Demonstrative exhibits, from any source, are encouraged if it appears they might help the arbitrator understand the evidence. Demonstrative exhibits are to be given their own exhibit numbers and referenced in the relevant statement of facts and evidence.
   

4. 
   Exhibits need not be filed with the Arbitration Provider unless otherwise directed or as an exhibit to a motion or other filed document.
   
5. 
   Counsel are encouraged to stipulate to succinct summaries of the contents of exhibits.
   

1. The arbitrator’s notes and files are not available

   1. 
      The arbitrator’s notes and files are not a record and will not be made available to the parties.
      
   2. 
      The arbitrator reserves the right to destroy his notes at any time, including for example upon the issuance of the award.
      

1. Early initial disclosures

1. Background: Early disclosures are required to reduce overall costs

   1. 
      This section 4 sets out a structured approach for the parties to provide early disclosures of their factual assertions and supporting evidence. Such early disclosures can help to reduce overall costs by:
      

allowing the parties to tailor their discovery requests;

identifying issues for possible summary disposition;

aiding in settlement discussions and/or mediation; and

helping the parties to focus their other hearing-preparation efforts.

COMMENT: See also the extended discussion of the rationale for such disclosures in the Toedt & Toedt article.

1. 
   In directing such disclosures, the arbitrator acts under the express authority of AAA Commercial Rules R‑22(a), R‑22(b)(1), and P-2(a)(iii).
   

1. Chronology draft exchange begins: Tuesday of Week 2

• Early fact disclosure is familiar to federal-court litigators from their experience with Rule 26 of the Federal Rules of Civil Procedure.

• Under AAA rules, the arbitrator has authority to require disclosures. See AAA Commercial Rules P 2(a)(xiii), R 22(a), and R 47(b).

• MCL 11.11 suggests that at the initial pre-trial conference, judges should consider “requiring counsel in advance to discuss claims and defenses” and “directing counsel to submit a tenta-tive statement, joint if possible, identifying disputed issues as specifically as possible.”

• MCL 11.13 of the Manual for Complex Litigation states (at 35) that “[e]ffective use of [early disclosures] without excessive and unnecessary burdens on the parties can streamline the litiga-tion.”

• MCL 11.33 urges that “[r]ather than accept a statement that defendant ‘was negligent’ or ‘breached the contract,’ the judge should require the attorneys to describe the material facts they intend to prove and how they intend to prove them” (at 44). It suggests that judges “re-quiring, with respect to one or more issues, that the parties present a detailed statement of their contentions, with supporting facts and evidence” (at 46).

• MCL 11.641 likewise recommends that judges “have each party prepare and submit a statement listing the facts it intends to establish at trial and the supporting evidence. The statement should be informative and complete, but free of argument and conclusions. … Ex-changing such statements may help narrow factual disputes and expedite the trial …."

1. 
   On or before the date specified in the heading of this section 4.2 (the “Initial Disclosure Date”), Claimant is to serve, on the arbitrator and each other party, an initial draft of a written statement (“Chronology”) that conforms to the requirements of this section 4.2.
   

• 
  MCL 11.33; and
  
• 
  Section 3 of a model procedure by British arbitrator Peter D. Aeberli, available at http://www.aeberli.com/arbitration.htm.
  

2. 
   The draft Chronology is to set forth a detailed, step-by-step narration — in short, numbered, nonconclusory paragraphs, without argumentation, and (to the greatest extent possible) in chronological order—of each specific (i) evidentiary fact, and (ii) proposition of law, that Claimant asserts:
   

refutes Respondent’s response to the demand for arbitration; and/or

supports Claimant’s affirmative defenses to Respondent’s counterclaims (if any).

In drafting the Chronology, counsel should think in terms of, How would we explain the historical facts, step by step, to an intelligent lay person, without getting too bogged down in immaterial details.

3. 
   For each numbered paragraph of the draft Chronology that asserts a fact, that paragraph is to include or be followed by a disclosure of all evidence  also in short, numbered subparagraphs where appropriate  that Claimant then expects to offer in support of the asserted fact, including the following:
   

the identity; employer; job title; and contact information, of:

1. 
   each individual, if any, whom Claimant then expects to call to testify in support of that asserted fact; and
   
2. 
   each other individual, if any, whom Claimant believes to have knowledge of that asserted fact;
   

optionally, one or more requests that Claimant be directed to produce specific relevant documents or things, or to identify potential fact witnesses, concerning that asserted fact.

4. 
   No later than ten business days (the “Disclosure Interval Duration”) after Claimant serves the initial draft of the Chronology, Respondent is to serve, on Claimant and the arbitrator, a revised initial draft of the Chronology. The revised initial draft:
   
   1. 
      is to conform to the same requirements for Respondent’s claims and/or affirmative defenses as are set forth above for those of Claimant, mutatis mutandis (“necessary changes being made”); and
      
   2. 
      is to respond, in point-counterpoint fashion, to each statement of fact and each statement of law made in Claimant’s initial draft, stipulating to as much of the substance of each statement as is possible.
      
5. 
   No later than the Disclosure Interval Duration after Respondent serves its revised initial draft of the Chronology, Claimant is to serve, on Respondent and the arbitrator, another revised draft of the Chronology that responds, in point-counterpoint fashion, to each statement of fact and each statement of law made in Respondent’s revised initial draft, again stipulating to as much of the substance of each statement as is possible.
   
6. 
   For the avoidance of doubt, in preparing a draft of the Chronology, no party (“drafting party”) is to modify another party’s statements in the Chronology without the express prior written approval of that other party. Any such modifications must be indicated in “redlining” or other suitable marking.
   
7. 
   Each draft of the Chronology is to be (i) dated, and (ii) numbered as an exhibit in accordance with section 3.8.
   
8. 
   Each drafting party is to produce, with each draft of the Chronology that it serves, copies of the following (to the extent not already produced), each numbered as an exhibit:
   

any insurance agreement under which an insurance business might be liable to satisfy all or part of a possible award in the arbitration or to indemnify or reimburse for payments made to satisfy the award; and

any other document or thing directed by the arbitrator.

9. 
   Each drafting party must seasonably supplement or correct its contribution(s) to the Chronology if the drafting party learns that in some material respect those contribution(s) are incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to all other parties during the discovery process or in writing.
   

10. 
    Except for good cause clearly shown or as otherwise provided in this Scheduling Order, the arbitrator will not consider, in support of a party’s claims or defenses:
    

any witness testimony or exhibit not cited in and provided with the Chronology (as updated).

11. 
    In determining the weight to be given to a particular factual assertion or evidence, the arbitrator may take into account whether the assertion or evidence should have been disclosed earlier.
    

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