Provisions for an Arbitration Scheduling Order to Get to a Hearing in 12 Weeks, Adapted from the Manual for Complex Litigation, [draft]
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- Confidentiality
- Questioning of counsel by the arbitrator
- Document numbering
Communications with arbitratorExcept at oral hearings and case-management conference calls, no party or its counsel is to communicate orally with the arbitrator. The parties are to submit directly to the arbitrator, by email, any correspondence, motions, requests for approval, briefs, etc., that require the arbitrator’s attention, with a copy to the Case Administrator and to all other parties in the same manner, allowing all recipients to receive the communication at substantially the same time. Simple motions or other requests that require the arbitrator’s approval (e.g., requests for approval of discovery), especially agreed motions or requests, may be emailed to the arbitrator at any time with a copy to all other parties and to the Case Administrator. The arbitrator may communicate in writing, for example by email, directly with the parties; the arbitrator expects to copy all parties and the Case Administrator on any written communication that he sends to any party. ConfidentialityAny confidentiality provisions of the arbitration rules will apply; if so requested, the arbitrator will consider entering a formal confidentiality order, preferably by agreement. COMMENT: AAA Commercial Rule R‑23(a) expressly gives the arbitrator the power to enter confidentiality orders. In fact, Rule 23 is even stricter, stating that “The arbitrator shall maintain the confidentiality of the arbitration and shall have the authority to make appropriate rulings to safeguard that confidentiality, unless the parties agree otherwise or the law provides to the contrary.” Counsel may wish to consider the confidentiality order in Model Order #4 of the Model Case Management Orders for Patent Cases published by a special committee—comprised of experienced litigators and chaired by one of the authors—of the Section of Intellectual Property Law of the American Bar Association; its model orders are available at http://www.OnContracts.com/ABA-IPL-case-management-orders. Questioning of counsel by the arbitratorThe arbitrator is aware of the need (1) to remain neutral and avoid the appearance of partiality; (2) not to frustrate the adversarial process or disrupt counsels’ presentations; and (3) not to decide any matter until each party has had a fair opportunity to be heard concerning that matter. In the interest of streamlining the arbitration proceedings and reducing their cost: From time to time during the arbitration (including at the hearing), the arbitrator may question counsel (orally or in writing) about, for example: (1) the parties’ claims and defenses; (2) possible stipulated facts; (3) disputed material facts that counsel intend to prove and how they intend to prove them; and (4) points of fact or law that in the arbitrator’s view might not yet have been satisfactorily addressed. COMMENT: This provision is drawn from principles stated in MCL 11.11 and 11.33. The MCL opines that: Probably the judge’s most important function in the early stages of litigation management is to press the parties to identify, define, and narrow the issues. … Plaintiffs may assert that substantial discovery must precede issue definition, and defendants may contend that plaintiffs must first refine their claims. Nonetheless, the judge must start the process of defining and structuring the issues, albeit tentatively …. MCL 11.31 (emphasis added). The MCL stresses that: … Questions should probe into the parties’ claims and defenses and seek specific information. Rather 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. MCL 11.33 (emphasis modified). Some lawyers might fret that questions by the arbitrator could unfairly “coach” opposing counsel. Those lawyers should remember that: They themselves might just as easily be beneficiaries of such “coaching”; and This modest, hypothetical downside risk must be weighed against the advantages of (1) providing the parties with insight that might be helpful—for example in the mediation required under AAA Commercial Rule R‑9 and contemplated by AAA Employment Rule 7; and (2) helping counsel to focus their subsequent work on areas of weakness identified by the arbitrator and on possible areas of misunderstanding or lack of comprehension by the arbitrator. Document numberingDocument-based production numbering: To reduce the risk of confusion, each document is to be assigned a single identifying designation for use by all parties for all purposes throughout the case, including depositions (if any) and the hearing. Counsel are to agree on a uniform, document-based, production-numbering scheme for documents exchanged or produced, in which each document receives a single production number as though the document were an exhibit. COMMENT: The beginning of this section is copied almost verbatim from MCL 11.441 at the top of page 72. Counsel are encouraged to use production numbers 1 through 100 for documents produced by Claimant; production numbers 101 through 200 for documents produced by Respondent; and so on, repeating this alternating cycle as necessary, and adjusting as necessary to accommodate any additional parties. This simple, exhibit-like production numbering scheme should be easy and inexpensive to implement and will be preferable for many cases with comparatively-few documents. Page-based production numbering: Alternatively, if counsel so agree, the production-numbering scheme may be page-based in “Bates number” style, so that each page of each document is numbered. COMMENT: In this situation, the production-numbering scheme might be (for example) Claimant using Bates numbers 0001 through 1000, Respondent using Bates numbers 1001 through 2000, etc. This page-based production-numbering scheme reflects the practice suggested in MCL 11.441 at 72 and used by a number of courts for ease of referencing specific pages. Directory: docs docs -> Application for acem docs -> Observational Assessment of Teaching Practices Teaching Assessment Initiative Proposal Submitted to The Teachers for a New Era project docs -> Traditional British values docs -> From Warfighters to Crimefighters: The Origins of Domestic Police Militarization docs -> Borzoi Club of America Register of Merit Program I. 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