Archive for: May, 2017

We have all been there.  During trial a witness testifies inconsistently with her prior testimony.  So you dutifully pull out the transcript to impeach her.  Here is a method I have found that works to limit the witness’ ability to wiggle out of prior testimony.

First, commit the witness to the testimony she gave under oath today.  Say something like “on direct examination, you testified that the light was green for southbound traffic on Rainbow when you entered the intersection, correct?”  Make sure you are quoting the prior testimony as closely as possible in order to avoid having the witness quibble. (more…)

(Discoverability of Conversations During Deposition Breaks)

Let’s pretend that your client needs a restroom break during a deposition and there is no question pending (thus, not triggering an In Re Stratosphere Corporation, 182 F.R.D. 614 (D. Nev. 1998) problem).  You and your client requested a break.  Before going back into the deposition, you remind your client about the training you gave him to answer only the question asked and not to volunteer information.  You also tell him to beware if opposing counsel asks questions about that smoking gun document that he pay special attention to the second paragraph.  Under a recent Nevada decision, no privilege would attach to that conversation, meaning your client could and would be forced to divulge the contents of that conversation if the examining attorney is aware of the decision. (more…)

For large, complex arbitration, some parties negotiate for and require three arbitrators to hear their dispute.  The problem with this approach, according to the American Arbitration Association (the “AAA”), is that three-arbitrator panels cost the parties on average 5 times as much as a single arbitrator case.  The AAA suggests there may be a more cost efficient way to deliver the same services, as 60% of business disputes filed with the organization resolve before the actual arbitration hearing.  So why not limit the workload of the three arbitrators prior to the arbitration hearing?

The AAA’s solution to this frequent complaint about arbitration being too costly is found in the new Streamlined Three-Arbitrator Panel Option, which allows all pre-hearing matters to be heard by a single arbitrator, with only the final arbitration being heard by the entire panel.  According to the AAA:

The Streamlined Three-Arbitrator Panel Option allows parties to . . . utilizing a single arbitrator to manage the early stages of the case, decide issues related to the exchange of information and resolve other procedural matters without incurring the costs associated with the entire panel . . . By maximizing the use of a single arbitrator, the parties will be able to capitalize on the cost savings provided by a single arbitrator while still preserving their right to have the case ultimately decided by a panel of three arbitrators.

Parties do not have to agree to the streamlined panel method and may have 3 arbitrators hear and decide every matter.  Further, they may at any time withdraw their consent to participate in the streamlined option and will thereafter have all matters heard by a full panel.  This rule change should be applauded by the ADR community as a money-saving method that still gives the litigants the ability to control their arbitration experience through contract.

An opinion recently issued by the 9th Circuit illustrates the power of a well-crafted arbitration agreement to control one’s litigation needs.  The case is Mohamed v. Uber Technologies, Inc.  It stands for the propositions that: 1) an arbitration agreement may delegate the question of arbitrability to an arbitrator despite federal policy that courts should decide arbitrability; and 2) an arbitration agreement containing a clear-opt out provision is neither adhesive nor unconscionable.

This decision should encourage us to write better arbitration clauses so that we can better control the litigation environment.  For further discussion of this topic, see this article 10 Steps to Writing a Better Arbitration Agreement. (more…)

Jay Young is a top arbitrator in Las Vegas, Nevada.  ADR Certified since 1994.  Additional 40 hour certification and graduate of Pepperdine Law’s Strauss Institute for Dispute Resolution’s  “Advanced Mediation: Skills and Techniques” program.  Jay is a Nevada Supreme Court Settlement Judge (mediator), a Judge Pro Tem, a Special Master, and a National Arbitration Panelist for Complex Litigation for the American Arbitration Association and Advanced Resolution Management.  Contact him at (855) 777-4476.  Go here for Jay’s full bio.