What Is an Opening Statement in Arbitration?
A arbitration opening statement is essentially the outline or summary of what you’re going to prove in your case, and what you want the arbitrator to do at the end of the arbitration. Your arbitration opening statement frames the entire case before an arbitrator.
Your arbitration opening statement should cover four main points: the facts of the case, the rules or law that applies, what you’re going to prove, and the relief you want the arbitrator to grant at the end of the arbitration.
An arbitration opening statement is somewhat different than an opening statement in court because both sides of an arbitration are typically required to exchange their documents, and have well in advance of the hearing a good idea of the other side’s case . Because of this, an arbitration opening statement is often less of a "preview" of the case than an opening statement in court.
Also, the nature and manner of the arbitration opening statement is often determined by preference, as some arbitrators want the opening statement to be written, while some arbitrators don’t allow any written opening statements. The rules governing your arbitration will govern the manner and content of your opening statement.
In any event, a good opening statement in arbitration must focus on the issues where there’s a real dispute or uncertainty, and you need to clearly present your case and the relief you seek from the tribunal.
Key Elements of a Strong Opening Statement
Clarity, conciseness and persuasion are the three key components of an effective and persuasive arbitration opening statement. A clear and concise presentation of the factual and legal issues in dispute that persuades the arbitrator or panel of arbitrators to find in your favor is the goal of every arbitration opening statement. How you frame the issues and present the evidence will determine whether the decision maker will be influenced by your arguments. Essentially, the objective is to convince the arbitrator or panel that your version of the facts, supported by the law, is superior to that of your opponent. The order in which components are presented is critical. It is important to first frame the factual and legal issues before giving a detailed presentation of the evidence. Order matters.
A common method of organizing an opening statement is to proceed by paragraph. That is, first discuss the claim, followed by a discussion of the affirmative defenses, then the counterclaims, followed by the affirmative defenses asserted by the counterclaims, etc. Too often, arbitrators must reframe the issues so that they can be properly decided. For example, when parties present claims and defenses totally unrelated to one another, arbitrators are forced to separate the issues for purposes of making a decision on the claims and counterclaims. This can often lead to the parties losing track of the issues to be decided and the resulting order of the award. Sometimes, the simplest of issues can take many pages to resolve simply because the claimant and respondent refuse to agree upon a single, distinct issue. A single claim framed in different ways can lead to several issues, and those in turn can lead to as many as five, six or seven issues to be decided. When this issue arises, arbitrators spend much of their time writing the awards to state clearly the conclusions of law, orders or statements that each party must now abide by. Whether the decision maker is an arbitrator, judge or jury, little distinguishes strong opening statement presentations from weaker ones except for the quality of their respective arguments and framework. An experienced attorney can make the winning argument, even when evidence is not particularly strong.
Persuasion involves the ability to persuade the decision-maker. A successful opening statement requires strategy and focus. An introduction should be made by the attorney who will conduct the main portion of the case. A well-crafted introduction provides the decision-maker with a map of the case. The party should include in the introduction the most important points, both factual and legal, upon which the case will turn. Never assume that the decision-maker has read the pleadings. After providing a road map of the facts and law, then, and only then, should the attorney plead the facts supporting a persuasive discussion of the case. One wrong approach will likely result in error, which can lead to serious consequences for the party. The last thing the attorney should do is to present what is clearly admissible evidence as if it were dispositive, or the only evidence in the case. All cases are different and the facts leading to the decision will be different. The attorney must understand that the presentation of the evidence is of utmost importance. How an attorney presents evidence will have a significant impact on how the evidence is received. A well-crafted, concise opening statement that provides a clear roadmap of the case will set the stage for an easier presentation of evidence.
How to Create Your Opening Statement: Steps to Follow
Having a practical step-by-step method to prepare your opening statement: (1) allows you to be more persuasive and, (2) reduces overall arbitration time and associated costs.
- Know the Rule – Rule 28 requires you to file an initial pre-hearing brief "setting forth the issues you will raise at the arbitration hearing, along with the principal supporting arguments and citations to documents and other evidence that you may present in support of your position." The purpose of this rule is to give the arbitrator sufficient information to be prepared for the initial hearing.
- Know Your Audience – "The best opening statements are customized to the anticipated audience. For example, if you know the arbitrator is a former general’s counsel for a Fortune 500 company, you can appeal to him or her as the judge of what a jury might think about your claims." A different approach is needed if the arbitrator has public service experience (e.g. former prosecutor, judge, public defender). In this instance you might want to emphasize the wrongs suffered by your client, and how society would be better off with a full remedy for those harms.
- Know the Court Rulings – Be aware of all court rulings and pre-hearing orders that could anchor or float any of your potential arguments. Each time a court ruling goes your way, it makes you more credible to the arbitrator.
- Know Your Evidence – Have a working knowledge of all of your supporting evidence, which will help you connect the dots for the arbitrator during your opening statement.
- Know the Law – Familiarize yourself with the law and how it might be applied to your case. This not only helps you prepare for your opening statement, but also to craft your potential questions for each witness.
- Call Out the Anticipated Arguments of the Other Side – Prepare a summary of the anticipated arguments made by the other side. The plan is to anticipate each claimed weakness in your opening statement, and plan your strategy around attacking the other side’s weaknesses. Giving thought to the weaknesses of your own case helps refute counterarguments and increases the chance for success.
Typical Mistakes to Avoid
When preparing your opening statement for an arbitration, try to avoid the following common mistakes:
Poor preparation. Poor preparation often leads to lack of focus, as the arbitrator is unable to follow your theme(s), which will then confuse her. So make a list of the themes you want to cover in your opening and follow them and you won’t go wrong. On occasion, you may stray off into another area owing to a specific fact or witness, but make sure you get back to your themes as soon as possible. The arbitrator is likely to lose interest in your case if you’re not hitting the points you think are most important. If you spend a lot of time on tangential points or facts that aren’t especially important, the arbitrator is going to start thinking you really don’t have a strong case because you’re focused on the wrong things.
Lack of preparation. This simply means you never really thought about what the specific theme(s) of your opening will be, and so there’s no real focus to your opening. Your opening doesn’t need to be long. It just needs to be focused.
Overloading. Less is definitely more here. Keep the spotlight on what you believe are the most important themes. If they’re good ones, don’t overwhelm the arbitrator with a lot of extra information. There’s plenty of time later to go into detail on the facts, witnesses, evidence, case law, and arguments. Most importantly, unless your tribunal is known for being very direct and forward, try not to use "I" speak. If you plan to use "I" speak at all, make sure you never use it while speaking to the arbitrator herself. That’s a good rule in trial too. There are also other words you should avoid using at trial, such as: "Charges must be proven," "Our client," (rather than "my client;" "I suggest," "I hope," "I think," "I argue," "we ask," etc.) "we believe," "we feel," "we know," and "we pray." Instead, substitute them with, "the charge must be proven by … ," "the party," "the party," etc. (and remember that each theme you cite creates a sub-theme).
Examples of Opening Statements in Arbitration
In the introduction of this article we went through the essential elements of an arbitration opening statement. In this section, we will cover some real-life examples of arbitration opening statements that were successful.
A recent example can be found in the arbitration between Chase Wealth Management and UBS ("Chase Wealth v. UBS"). This was a FINRA arbitration involving claims of breach of fiduciary duty and negligence. In the arbitration opening statements, Chase Wealth v. UBS’s counsel said: "The antagonism originated when UBS told a multi-million dollar client to drop Chase Wealth and transfer $23 million to UBS. . . . As you can imagine, that cost Chase Wealth quite a bit of business, prestige, and money. . . . Chase Wealth became aware that UBS had talked to other Chase Wealth clients, and Chase Wealth wrote UBS a letter, which you will have a chance to read in your deliberations," he said. "Chase Wealth sought to get to the bottom of it. It was only when Chase Wealth took the matter to a FINRA arbitration panel like this that [UBS] admitted responsibility," counsel for Chase Wealth said. The frequent rhetorical question was effective, as it helped the arbitrators absorb the overall picture of the case . Likewise, the letter that was entered into evidence was highly effective at making UBS’s wrongdoing clear.
Another great example of a successful arbitration opening statement is the unnamed arbitration between Zealous Hospitality Group and Bina Benari. This arbitration began after Benari and her partner decided to dissolve their partnership. During the opening statements, Benari’s counsel began by saying that Benari and her partner ran a business together. He then juxtaposed this with what was happening between two individuals who were married – "what do we call that?" (referring to "divorce"). He then went further: "can’t we agree that most people go about their divorce amicably and agree on most things?" He then asked the rhetorical question: "is that what is going on in this case?" The use of very clear metaphors and rhetorical devices, along with rhetorical questions, all helped lead to the overall impact of the opening statement. Additionally, by referring to common knowledge regarding two people getting divorced, this arbitrator could quickly empathize with both sides. It is a clever and yet subtle way to persuade.
Thus, it is clear that including rhetorical statements, including metaphors, stories, and other features are essential to crafting a top-notch arbitration opening statement.
Making a Memorable Opening Statement: Tips to Keep in Mind
The impact of your presentation goes beyond the words on the page. The way you come across to the panel can either bolster the strength of your Arbitration Opening Statement, or detract from it. Speak clearly and articulately and do whatever you can to enable your arbitrators to comfortably hear what you are saying. Stand up and walk around as you speak to the panel, while maintaining eye contact with each member. If you are able to, stand toward the side of the room at an angle to the panel so you can face different sections of the room as you speak. Use vocal variety and modulation to emphasize your key points, while avoiding a monotonous delivery. Conversationally delivered key points are more interesting and will be paid attention to by your arbitrators. Avoid using complex words in an attempt to sound scholarly or to make yourself sound more authoritative. Clarity is far more important than use of obscure terminology. The body language of an effective oral presentation is almost as important as the words you are uttering. Don’t shift your weight from one foot to the other. Do not lean against the lecturn or podium, but instead stand erect. Avoid fidgeting with a pen, or your hair, or your clothing. Your hands should be kept at your sides when not gesticulating. Do not point at counsel from opposing counsel’s team as you provide information about him or her. Maintain a level of eye contact with all of your arbitrators, or they may think you are unprepared or inexperienced. At the same time, don’t make any arbitrator feel uncomfortable by staring at him or her excessively. Aim to look each arbitrator in the eye for short periods of time, and then move on. Practice in front of your friends, family, and co-workers to become more familiar with your material. Practice in front of strangers who do not know the facts of your case, to see if you’ve done a good job of making a compelling case for yourself. Consider video recording your practice speech and play it back to see how you looked and sounded to others. Evaluate areas that could be improved upon and rehearse those until you feel that you are ready to deliver a great Arbitration Opening Statement. In the end, wear properly fitting, professional attire, and remember to breathe deeply as you prepare to stand up to present; thereby allowing your body to relax and allowing you to think clearly. Attempt to recognize your preconceived expectations of success and have a positive attitude. In being excited about the process, you will likely present well.
Conclusion: The Magic of a Great Opening
As this discussion demonstrates, a carefully crafted opening statement can have a significant impact on the dynamics of the evidentiary phase of an arbitration. A persuasive opening will all but force the arbitrators to ask the following questions as each witness testifies:
"A focused opening statement will allow each witness to present his or her evidence, and the parties will no longer need to waste valuable time calling and questioning witnesses who are not competent to testify on a given subject."
"A focused opening statement will also aid the arbitrators in assessing the credibility of each witness based on his or her expertise in a given area . "
"Of course, an opening that answers these questions may be less effective than an opening that forces the arbitrators to speculate regarding these unanswered questions."
"A focused opening statement may not, in and of itself, cause an arbitrator to side with one party over another, but it may help tip the scales in a marginally favorable direction once the facts are in and the competing narratives begin to take shape."
"The opening statement is thus an important part of the arbitration process and should be tailored to the circumstances in each case."
"The value of a compelling opening statement cannot be understated."
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