3 KEY COMPONENTS FOR A SUCCESSFUL TRIAL OR ARBITRATION: PREPARATION, ANTICIPATION, EXECUTION

By: Howard J. Kaplan, Esq.
July 2018

During my thirty plus years of practice, I have come across many articles and lectures opining on what it takes to plan successfully for trial or arbitration. Many experts analogize trial or arbitration preparation to the real estate slogan “location, location, location”. Indeed, preparation can play a critical role, but I have come to my own conclusion on the key components that can influence success: 1) Preparation, 2) Anticipation, and 3) Execution.

Having authored and lectured on this topic myself for many years and participated in numerous trials and arbitrations of my own, I have found that these three factors can greatly enhance the chance for success and minimizes the risk of surprise.

Here's why:

#1 – PREPARATION

Preparation starts the moment the case is assigned to the attorney. It begins with thoroughly familiarizing yourself with the dispute. From the outset, you should develop a theme for the case. Meeting and getting to know your client is critical to ultimately being successful in the courtroom or arbitration forum. Evaluate the client. Ask yourself: Does the client make a credible witness? If not, decide what it will take to make the client more presentable. Whatever the investment in time, it will pay off when you get to the forum.

Far too many lawyers show up with little knowledge about their client. Some attorneys meet them for the first time at the arbitration. This practice simply does not work, as it creates a disconnect between counsel and client that can lead to a disadvantage when arriving at the proceedings. Often, I will see a client or witness looking confused at their lawyer's questions, and ultimately provide answers that make little sense. Regardless of who is deciding the case (arbitrator, judge or jury), counsel will not likely prevail when this disconnect occurs. The factfinder will often equate poor preparation for untruthfulness. I recently tried a case where the judge interrupted the trial and told plaintiff's counsel to take his client outside and get the story straight. Needless to say, the case was lost as a result of their lack of preparation.

With that in mind, it is critical to meet with, and prepare your client beforehand. This includes describing to him or her how the room is set up, as well as how they should conduct themselves. This may be as simple as telling a witness to look and speak directly to the arbitrator, judge or jury. I cannot tell you how many times I have sat as an arbitrator and watched a witness testify looking at his or her lawyer, rather than the person who will make the final decision. It is important to not only instruct the witness on how to testify, but also to whom they should direct their answer when presenting their testimony. This is necessary and will strengthen your party's advantage when you arrive for the proceeding. Also, advise your client on their appearance, including how to dress – arriving to the forum in sandals and shorts are not options. Finally, show up early with your client – this will allow them to get oriented and comfortable with the setting, and likely alleviate some of the anxiety that could potentially impact their testimony.

It is also critical to practice through role-play for both the direct and cross-examination. Allow your client to get comfortable with the areas of attack – you cannot simply turn a blind eye to what they will confront. Which leads me to my second area for success: Anticipation.

#2 – ANTICIPATION

Familiarize yourself with your opponent's case as well as the weaknesses of your own. Don't hide from areas that will potentially hurt it. Rather, think about ways to mitigate its shortcomings.

Prepare your client for areas of vulnerability. In particular, focus on areas of the deposition testimony that are potentially harmful to your theory of the case – for example, vehicle speed, statements made to the police, etc. Role-play with your client. See how the witness responds to cross-examination. If there are explanations for inconsistencies, review these with the client. Do not allow the trial or arbitration to be the first time they are confronted with any inconsistency. They will not know how to respond and run the risk of losing credibility.

Many times, a witness, due to lack of preparation, will simply refuse to give ground in areas of questioning when they clearly should. These facts should be discussed in advance. Credibility is often achieved by simply agreeing to something that ought to be accepted. The witness who fights every point will not likely be viewed as credible. This holds true for expert witnesses as well. The only way for the witness to succeed, is to anticipate as much of the other side's potential areas of attack as possible. When they are testifying and confronted with the cross, they will not only appear prepared, but they will know exactly how to handle themselves.

The attorney must also anticipate the arguments of his or her adversary. Defuse the arguments even before they are made by raising them on your own. Doing so mitigates their impact on the trier of fact, and also demonstrates a high level of competence and preparation.

#3 – EXECUTION

Every skilled lawyer will tell you that they are nervous when the day of the trial or arbitration arrives. If you are not feeling the pressure to perform, perhaps the time has come to look for another profession. I have often said that a football team can prepare Monday through Saturday, and still fail if they do not execute on game day. The receiver who runs the wrong pattern, the running back who fumbles the ball – they may be well prepared, but they have ultimately failed to execute. This is true of the trial attorney as well. Counsel must be well prepared and well-versed in his or her case so they can smoothly deliver their points, lead the client on direct, and artfully cross-examine the adverse witness.

In sum, when you prepare (yourself and your client), anticipate (the plan of attack on both sides) and execute (by providing a flawless delivery) the odds of success at the trial or arbitration are greatly enhanced. If any of these pieces are missing, the likelihood of success is remote. Lawyers should not rely solely upon luck – or simply “location” – to win their case.
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Howard J. Kaplan, Esq. is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and available to arbitrate and mediate cases throughout the United States. In 2017, he was voted a Top Ten Arbitrator by The New York Law Journal Reader Rankings Survey for the third year in a row. Mr. Kaplan is a partner at Carman, Callahan & Ingham LLP.

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.