If you’ve read this Blog for any time at all…you know we are very pronounced with endorsement of Theory and Theme for every Arbitration case. It’s just fundamental Arbitration advocacy! Trusting that you are, in fact, placing a dynamic Theme to start off every case…where does the aspect of Damages fit in with your Opening. We also know that every case has Issues, Elements and Turning Points. Damages actually hit two of those three. Proof of Damages as an Element of your Prima Facie Burden and Damages as an Issue to be resolved by the Arbitrator along with (perhaps) liability.
Several things to consider as you craft your Opening (in no particular order). Arbitrators always want to know the issues before them as early as possible. We also know Arbitrators tend to remember more information presented to them earlier in the case. Bring the aspect of Damages out early as Applicant…but since the actual boundary for that topic is set by the Respondent; be absolutely confident they are contesting same. Similarly, be certain the Respondent is not going to challenge you on Liability. Occasionally, you will see Applicants present (to open their case)…‘this is a damage dispute’. If in fact, you believe the Respondent is not going to challenge you on liability…you need to (in that Opening) direct the Arbitrator to Evidence that substantiates your position. Acceptance, Offers and Admissions have different meanings in Arbitration. Simply, tell the Arbitrator where they can corroborate that liability is not an issue to be addressed. It can also be helpful to remind the Arbitrator the Quantum of Proof even when Damages appear to be the sole focus. Advocates will mention the ‘Preponderance of the Evidence’ standard in Liability cases but (for some reason) not in Damages-only cases
Case Presentation 101 is produced by Claims Resource Services; one of the nations top arbitration and subrogation services firms. The writer Kevin Pike can be reached at kpike@claimsresource.comand has daily tips on arbitration via Twitter: @Arb2Win
