Provisions for an Arbitration Scheduling Order to Get to a Hearing in 12 Weeks, Adapted from the Manual for Complex Litigation, [draft]
Download 260.83 Kb.
|
- Navigate this page:
- Motion practice
Exhibits—numbering, etc.COMMENT: Exhibit lists need not be exchanged because the parties will be exchanging the exhibits themselves from the outset of the case. Exhibit numbering: Throughout the proceeding, each exhibit is to be uniformly identified (1) by its production number, prefixed with a letter indicating the party or parties offering the exhibit, or alternatively, (2) by the page number of the first page of the document, if a page-based production-numbering scheme is used. COMMENT: For example, RX-2 would indicate an exhibit produced by Claimant (because the production number, 2, is in the 1 to 100 range) but offered into evidence by Respondent, while JX‑128 would indicate an exhibit produced by Respondent (because the production number, 128, is in the 101 to 199 range) but offered into evidence jointly by the parties. The alternative page-based exhibit-numbering scheme is based on a suggestion in MCL 11.441 at 72 (last grammatical paragraph). For example, CX-0105 would refer to an exhibit offered by Claimant whose first page was numbered 0105. No duplication of exhibits: In the interest of reducing potential confusion, 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). Admissibility: All exhibits will be admitted into evidence if not objected to at or before the final scheduled case-management conference call. COMMENT: This is adapted from a suggestion in MCL 12.13. Exhibit streamlining: 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. COMMENT: Redaction is suggested in MCL 12.13, fifth bullet point, and MCL 12.32, first grammatical paragraph. Highlighting: 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. COMMENT: The tape-flag and highlighting techniques are suggested in John C. Lowe, Making Complex Litigation Clear, in Trial, April 1997, at 46. Mr. Lowe was an active member of the ABA IPL Section special committee that produced the Model Case Management Orders for Patent Cases cited in the commentary to § 3.4. 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. COMMENT: Adapted from MCL 12.31. Filing of exhibits: Exhibits need not be filed with the Arbitration Provider unless otherwise directed or as an exhibit to a motion or other filed document. Stipulation to summaries of exhibit contents: Counsel are encouraged to stipulate to succinct summaries of the contents of exhibits. COMMENT: This is based on a suggestion in MCL 12.332 for summarizing deposition testimony. Motion practiceMotions and briefs should be brief, as the name implies; bullet points are preferred. The arbitrator expects that most motions will be taken up at one (or more) of the scheduled case-management calls. Short, simple proposals for dispositive motions are encouraged, but such motions may be filed only with arbitrator approval. COMMENT: This provision is based on AAA Commercial Rule R-33 and AAA Employment Rule 27; the provision lets the arbitrator screen proposed dispositive motions before counsel for both sides have to start doing expensive 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. On motion, the arbitrator will grant full- or partial summary judgment 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 judgment 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 be reluctant 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 arbitrator reluctance doesn’t do the parties any favors, though, because it needlessly increases 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 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 most about arbitration was the seemingly-categorical unwillingness of some arbitrators to grant summary judgment. Use of the various scheduling-order provisions here should significantly lessen the anxiety of summary judgment, because the procedures established by the scheduling order 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. 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. What is a Register Of Merit docs -> Protecting the rights of the child in the context of migration docs -> United Nations E/C. 12/Esp/5 docs -> 9th May 1950 the schuman declaration docs -> Getting To Outcomes® in Services for Homeless Veterans 10 Steps for Achieving Accountability Download 260.83 Kb. Share with your friends:
|