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Innovations in arbitration: Improving the presentation of evidence in construction arbitration
Dispute Resolution Journal, Aug-Oct 2003 by MacPherson, Robert J, Smith, Richard F, Mitchell, Roy S
In this article a panel of construction arbitrators discuss some simple yet effective procedures designed to promote expeditious and efficient arbitration hearings while still providing the parties with a full and fair opportunity to present their case.
Construction arbitration promises an expeditious and efficient method of dispute resolution. But arbitration conducted like a traditional trial does not deliver on that promise. The question is, from the parties' point of view, how do you balance the goal of efficiency against the right of the parties to fully present their case?
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The American Arbitration Association rules require arbitrators to strike this balance. However, better tools are need both to keep arbitration a distinct and more streamlined process from litigation and to provide ways for the parties' due process rights to be satisfied. This article discusses two procedures we have used that facilitate the process. The first is for the attorneys to prepare summaries of the evidence (rather than witness statements), which can be supplemented by "witness panels," if needed. The second is to have a joint examination of opposing experts.
Attorney Summaries
In international commercial and construction arbitration, it is common practice for the parties to introduce direct testimony by using written witness statements, instead of examining the witnesses at the hearing. Those who advocate this procedure believe that it reduces the length of the hearings and thus lowers the overall cost of the arbitration. Those who prefer live testimony suggest that any savings are lost due to the cost of preparing the witness statements.
Agreeing in principle that live testimony can prolong the proceedings, we have had excellent results experimenting with a slightly different approach to the presentation of a party's direct case. Instead of offering witness statements, the attorneys made an oral presentation summarizing the evidence amassed in the case in a way that would be helpful to the tribunal.
The justification for attorney summaries is that attorneys almost always prepare the witness statements anyway. It is also commonplace for the attorneys to help shape their witnesses' testimony on direct examination, so the evidence should not be different. Thus, having the attorneys present detailed summaries of the facts supporting their clients' positions is simply more efficient.
In our experience, evidence summaries presented by the attorneys are particularly effective when the case relies primarily on documents, such as correspondence or job records. In situations like these, witnesses are needed only to supplement the information in an attorney's summary of the documents.
Witness Panels
Whenever attorney summaries are used instead of live examination of witnesses, there is always the possibility that the arbitrators will have questions that are not answered in the summaries. For this reason, we require the parties to have the witnesses referred to in the attorney summaries available for questioning by the arbitrators and for cross-examination by the other party's counsel.
For example, in a construction dispute between the general contractor and the owner over change orders, the contractor may wish to call as witnesses its project executive, its project and assistant managers, and the general superintendent and foreman stationed at the job site. Were all these witnesses to be called, It is likely that their testimony would overlap and, at times, be duplicative. Thus, the contractor's foreman may testify about a conversation his had with his counterpart on the architect's staff. This conversation is cited in a letter, written six months later by the contractor's project executive to the owner, complaining that the project has been adversely affected by the dispute over a change order. In between that conversation and the letter, the contractor's project manager, his assistant and the superintendent have to contend with the impact of the change order and the dispute on the job. Instead of having these witnesses testify sequentially, perhaps over several days, it is more efficient to have their testimony and any other evidence summarized by the contractor's attorney. If the panel or the adversary has additional questions, the witnesses can appear at the same time and be examined and cross-examined as a group. A skilled cross-examiner can use the panel method to advantage. Rather than asking whether witness "A" recalls the allegedly conflicting testimony of witness "B," the cross-examiner can ask witness "B" if the cross-examiner's summary of witness B's testimony is accurate. Then the cross-examiner can ask witness "A" how she squares that with her testimony. The well-prepared cross-examiner also can use to advantage any exaggeration or overly argumentative statements made by opposing counsel in a summary presentation.
The witness panel made up of project personnel and an expert can be particularly helpful to the arbitrators. When an expert testifies in a conventional witness-examination procedure, the testimony usually refers back to the testimony of fact witnesses given days or weeks earlier. The arbitrators have to put this evidence together in order to decide on its credibility. But when a witness panel is configured with an expert and fact witnesses, the arbitrators can hear the factual testimony and the expert's factual analysis and opinion at the same time.
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