To return to theResume and ADR Resource Page, click here .
by Francis O. Spalding
Copyright 1998 by Francis O. Spalding. All rights reserved.
Francis O. Spalding has been a full-time arbitrator and mediator of commercial disputes based in Northern California since 1985. He served as a member of the NASD NAMC in 1991 and 1996 and was its chairperson in 1993 and 1994. He also served as a member of the NASD Arbitration Policy Task Force between 1994 and 1996. He was a Professor of Law at Northwestern University School of Law in Chicago from 1965 until 1981 and was a visiting professor at Hastings College of the Law in San Francisco between 1983 and 1985.
Part Two, which will appear in the next issue, will discuss several problems that manifest themselves in some, but not all, under-representation cases: inappropriate attitude and deficiencies in specific case presentation skills. x
These poles, usually as reliable as the stars, provide consistent guidance to the arbitrator in confronting and resolving procedural problems presented by the case. In the otherwise-orderly universe of arbitration, as in the natural heavens, however, black holes sometimes appear. In those intimidating places, raw grating noise seems to replace the music of the spheres. There, instead of working in their usual seamless harmony, arbitration's pole stars characteristically seem to tug in opposite or conflicting directions--or, worse, threaten to send the arbitrator's compass spinning helplessly. In the arbitration universe, this disorientation, when it occurs, is not the product of quantum mechanics. Rather, it is the peculiar contribution of the under-represented party. For the arbitrator, the experience is apt to be the earthly equivalent of the Apollo 13 mission: a cold, bumpy, dangerous, and scary ride--if survived.
Who Is The Under-Represented Party?
The under-represented party comes in two varieties: the party appearing in pro per.--without the benefit of any counsel at all--and the party whose counsel is sufficiently incompetent in the conduct of the representation to raise the question whether the party might not be better off appearing in pro per. Some problems for the arbitrator are common to both. Others may be particular to--or even worse in-- one category or the other.
In whatever context the problem of under-representation arises, it can be exacerbated by any sharp disparity in the quality of representation between parties to the case. At the least, the presence of highly competent counsel opposing the under-represented party will highlight the problems that the under-represented party presents. At worst, an advocate skilled at infighting in an adjudicative process can savage the under-represented.
Fortunately, however, the most skilled and most professional of counsel, able to sense both the awkwardness and the danger presented by an under-represented opponent, can and often will temper usual styles of advocacy in a way that assists the arbitrator in the effort to afford the parties the fairest hearing possible in the circumstance. As the best advocates realize, this concession can be made in most instances without in fact sacrificing anything by way of effective advocacy. Whatever might be thought to be given up in foregoing an aggressive thirst for the blood of the weaker opponent is almost certain to be more than offset by the favorable reaction of the arbitrator.
Impact Of A Party's Under-Representation On The Arbitration Of A Case
The very elements of unpredictability and incongruity introduced by the presence of the under-represented party make it difficult to measure the precise impact that under-representation may have on the course of a particular arbitration proceeding, and in particular on the work of the arbitrator. Such problems may cascade like falling dominos, or two particular problems that happen to concur may give rise to a third problem simply by virtue of their concurrence. Nor is it always easy to predict the particular outfall of even a single problem.
Thus most of what can be said by way of generalization in aid of the arbitrator in such a case may seem to amount to little more than an enumeration of problem categories. It is possible, however, to sort out typical problems under more or less cogent heads based upon their likely root cause--the nearly universal problem of unfamiliarity with the process and the frequent but more idiosyncratic problems of an inappropriate attitude, or of an unclear case strategy, or of inadequate advocacy skills.
Likewise any proposed solutions are apt to sound like a catalogue of tips and tricks. Most, if not all, of the tools available to the arbitrator to deal with these problems are familiar ones--albeit that their application in the context of under-representation may require special sensitivity and skill. The number of possibilities is not great: patient explanation, gentle nudging and encouragement, the occasional flash of shock or anger (carefully reserved for the most problematic moments), and above all the protective cloak of frequently proclaimed determination to maintain neutrality. With a measure of luck in the use of these tools, the arbitrator may succeed not only in establishing and maintaining the control necessary in any case, but also in solving the problems peculiar to the under-represented-party case in a way that permits a reasonably efficient hearing and that maintains minimum levels of fairness and integrity in the process.
Diagnosis
The arbitrator's first responsibility in the case of an under-represented party is obviously diagnosis. In some instances--the admittedly naive unrepresented party, for example--this step is self-executing. In other cases, more careful sifting and consideration may be necessary. Moreover, the fact of a single disability in advocacy is not always the only fact to be uncovered. The unrepresented party, for example, may have a natural gift for examining witnesses but may have only a muddle-headed understanding of an appropriate theory for his or her case. On the other hand, counsel for the under-represented party simply may suffer from an inadequate understanding of the difference between the arbitration and trial processes--or may be lacking in the basic skills of advocacy in any adjudicative process. In any event, sensitivity is as much a requirement of the diagnosis phase as it is of any other part of the case management responsibility of the arbitrator. And of course in a multi-arbitrator case, intra-panel communication and sensitivity are essential as well.
A quick--but correct--analysis of the nature of a particular problem and of its root cause may go far in helping the arbitrator find an appropriate way to deal with it effectively--just as familiarity with the kinds of actions that an arbitrator may take is tantamount to keeping the available tools ready to hand.
Problems Related To Unfamiliarity With The Process
It is always important to ensure at the outset that the participants in an arbitration are adequately familiar with the process upon which they are about to embark. This need is not unique to the case posing problems of under-representation. Even skilled trial counsel unfamiliar with the arbitration process need guidance in adapting successful courtroom techniques to the different requirements and dynamics of an arbitration. The need is more urgent and more pervasive, however, where a party is under-represented. The solution is careful, patient explanation, at every point where needed but particularly at the outset, of what the ensuing process and sequence of events are to be.
The arbitrator may find it appropriate, for example, to
address the parties early in the proceeding on such topics as: the power
of the arbitrator; his or her neutrality and the steps designed to ensure
it; the similarities to and differences from
litigation; the swearing of witnesses; the usual order
of proceedings, and the opportunities and occasions for departure from
the usual order; the entitlement to representation and to cross-examine
opposing witnesses; the procedures to be used for handling documentary
evidence; the significance of receipt of submissions into evidence; the
probative defects of hearsay and other evidence that may be admitted into
evidence "for what it is worth"; the projected timetable for the hearing
and for post-hearing proceedings; and the like.
The length of this punch list of basic issues underscores the requirement that whatever the arbitrator thinks is essential to cover be addressed in an intelligible, unpedantic fashion; that it be free of condescension; and that it be accomplished without otherwise warping the process. The fact that the arbitrator may be obliged to deliver one or more lectures on the process, for example, should not be taken as an invitation to the view that the arbitrator is going to take over the proceeding, or to be any more "activist" than the situation absolutely requires.
Appropriate introductory remarks also can be helpful in setting the proper tone of neutrality. For example the arbitrator may say: "I'm sure that for the most part I'll only be repeating what is already well understood by all of us. Nevertheless, let me say, in order to be sure that we all start from the same point, that. . .". No one can be offended by what follows such an introduction---by way of elementary explanation of the process--and some around the table, are almost certain to need it and to benefit from it.
Special Problems Related to Unrealistic Expectations--It
is especially important to disabuse any participant of any unrealistic
expectations. Given the range of possible misunderstanding about the process,
even on the part of some
lawyers, it is hard to predict just what major misapprehension
a party may maintain: that the process is completely like or unlike litigation;
that discovery is fully available, or not available at all; that the award
is subject to judicial review, or that no post-hearing
resort to the court may ever occur; and so on. To the extent that problems
of this character can be foreseen and forestalled, future problems--occasionally
serious ones, such as attempts by the unrepresented party to make ex
parte post-award contact with the arbitrator--may be avoided.
Avoiding Problems of the Arbitrator's Own Creation--No doubt there are many things that a thoughtless--or improperly motivated--arbitrator can do that have the effect of making the process more, rather than less, mystifying and intimidating to the unrepresented party. Discussion of one of these--almost certainly the most common--should suffice to make the relevant point here.
Nothing more quickly confuses lay persons involved in the arbitration process, perhaps, than the use by arbitrators of unintelligible professional jargon. Lawyers are certainly the principal culprits here. When non-lawyer arbitrators lapse into the jargon of their professions, it is at least likely that the jargon relates to the subject matter of the dispute--subject matter that is likely to be familiar to the non-lawyer participants in the proceeding. Few lawyer-arbitrators who have served on panels with non-lawyer arbitrators are left in much doubt about the capacity of this kind of initial confusion to turn, over time, into something approaching rage. Intelligent lay persons serving as arbitrators, with lawyers, often lose all patience with what they come to perceive as a kind of game of deception deliberately played at their expense.
The standard suggested where there is an unrepresented
party is this: lawyers' words of art that are not a part of everyday lay
speech should be avoided if there is a reasonably efficacious alternative.
In every other circumstance such terms should be carefully
defined, and their use in place of plain language fully justified by the
arbitrator to the satisfaction of all principal participants in the proceeding.
It must be left to the individual arbitrator, in whatever particular circumstance
may be presented, to determine whether special concessions can and should
be made even to the under-represented party under this head. It is well
beyond the scope of this undertaking to assert that this suggested standard
could and should have application in all arbitrations.
Copyright September 1998. NASD Regulation, Inc. All rights reserved. NASD Regulation is a service mark of NASD Regulation, Inc. NASD is a registered service mark of the National Association of Securities Dealers, Inc. MediaSource is a service mark of the NASD.
by Francis O. Spalding
Copyright 1998 by Francis O. Spalding. All rights reserved.
Whether the incompetent lawyer brings to the hearing a combative attitude ill- adapted from courtroom experience or the unrepresented party throws himself or herself helplessly upon the mercy of the tribunal, the arbitrator's best defenses are control and example. He or she must establish control (without stifling the process) no matter what the circumstances of the hearing, and that objective is only more important where a party has an inappropriate attitude. The arbitrator's own example of businesslike disdain for that which is inappropriate may be supplemented, with care, by favoring, or even specifically endorsing or encouraging, the appropriate conduct of those participants who do not present an attitude problem. Specific lecturing on the problem may be required in some circumstance, but the arbitrator must be sensitive to the fact that any such chastisement must be public--in the sense that it occurs in the presence of the other parties--since neutrality can never be sacrificed by ex parte dealings with a party in the attempt to solve this or any other problem of this character.
Problems Related To An Unclear Case Strategy
Perhaps the most difficult problem that the under-represented party can present to the arbitrator is that of an incomplete, muddled, or ill-considered case strategy. It is hardly possible to conduct a fair and efficient hearing unless and until there is some modicum of agreement between the parties as to what the case is about and until each side is prepared to present a coherent view of its position on the issues presented. Yet it is hardly fair for the arbitrator, who is and must remain neutral, to coax or coach the unprepared party more effectively to meet the case of his or her better-prepared opponent.
There is no definitive line to be drawn here. The arbitrator must use open-ended and suggestive questions that go to, but never beyond, what he or she perceives as the limit of fairness. The arbitrator must act throughout with patent sensitivity to the concerns of the other, properly prepared side, and must ultimately be prepared to draw the line when the limit of appropriate assistance to the under-represented party is reached. If necessary or appropriate, the neutral should feel free to explain to all parties in open hearing the rationale for whatever line the arbitrator believes must be drawn.
Without attempting to be more specific, it can be observed as well that the arbitrator is unlikely ever to act as solicitously toward the incompetent lawyer as he or she may act in aid of the sympathetic unrepresented party.
Problems Related To Lack Of Case Presentation Skills
Substitute advocacy is at the heart of the problem presented by under-representation. Why should the under-represented party have the benefit of the arbitrator's skills and effort in partial substitution for skilled professional representation that this party was unwilling or unable to procure? Yet how can the process be minimally fair and minimally efficient without some adjustment in favor of the ill-represented party? Obviously there is no single satisfactory answer. The facts and context of the case--whether the under-represented party is the investor or the member firm, for example--can shape the answer significantly. So in fact can the skills and ingenuity of the arbitrator in creating the atmosphere in which the case will proceed. Every arbitrator with experience in such cases will have other suggestions to add.
Although it is important to avoid offending or confusing the advocate for the better-represented party, it is sometimes possible to frame suggestions for improving advocacy, addressed in fact to the under-represented party, in a more obviously neutral way by the device of speaking in form to both parties. For example, the arbitrator may say: "In order that I may fully understand the position of each side on this important point, I invite each party to submit its arguments to me in writing. . .". Or perhaps the arbitrator may speak in pseudo-abstract terms--for example, "In my view any party in a case confronting a situation such as this would be well advised to . . .". Some circumlocution is inevitably entailed in using such devices, but no case with an under-represented party is apt to break hearing speed records. And the arbitrator needs to communicate at every reasonable opportunity (and primarily if not exclusively by indirect means) this message: "I am bound and determined to conduct a full hearing that is fair to all parties, even in the difficult circumstances that we all face here."
Specific problems of case presentation present some of the most difficult challenges of the under-represented party case: motions, briefs, objections, arguments, and the like. Perhaps nothing can leave the unrepresented party with a greater feeling of frustration and unfairness than the impression that the case was decided against him or her by virtue of legal mumbo-jumbo not even understood. Then, even when unfamiliar technical terminology has been explained, there remains the problem of actually doing whatever has been under discussion.
As noted, the arbitrator hearing a case in which a party is unrepresented should try to discourage the use by any participant of jargon that is plainly unnecessary or expendable--and of course should find ways to speak himself or herself exclusively in plain English. Where technical terms cannot be avoided, the arbitrator should explain and try to demystify to the greatest extent reasonably possible.
Once a reasonable effort has been made to enable the lay party to understand what is under discussion, the greater challenge is to suggest what that party might need or want to do as a result of the discussion. The arbitrator must be careful to avoid crossing the line of improper advocacy but often can accomplish much by explaining in general terms the options that may be presented and, if appropriate, by making neutral, balanced suggestions as to next steps. The unrepresented party can be assured, as well, that it is substance and not form that is important. For example, a motion or a brief, while needing to be purposeful, need not be cast in any particular form.
Ultimately, however, the arbitrator may feel obliged to be blunt. In a case that looks as if it may well turn upon a difficult point of law, for example, it may become necessary to tell the unrepresented party (or counsel who proclaims himself or herself unqualified in the field in question) that there is a significant risk in proceeding without competent counsel--with the implicit but clear subtext that no party can or should count upon the arbitrator to fill this void.
Special Problems Related To Lack Of Skill In Examining Witnesses
The skill of an experienced trial lawyer is thrown into its sharpest relief, perhaps, by watching the painful process of examination of a witness by an incompetent examiner. The arbitrator, nevertheless, almost certainly must allow the process to run at least a large part of its own course, subject to the use, in appropriate instances, of several tools.
First, once the existence of a problem has been established, it may be possible, without undue intrusion, to elicit from the examiner what amounts to a generalized offer of proof in advance of the testimony of a witness called on direct. Where this can be done, it may be possible for the arbitrator to suggest an approach or course of proceeding, including, if appropriate, advance steering of the questioning away from areas that can be predetermined to be irrelevant, or from kinds of questions that may be impermissible or inappropriate.
Second, what amount to evidentiary objections may be used judiciously to shape and tailor the examination. Particularly in the case of unrepresented parties, it may be that the arbitrator himself or herself can and should in effect take over the making of such objections--doing so, however, not in the confrontational style of trial advocates but in the fashion of a dialogue between the arbitrator and the examiner. At its best, this process may be perceived as a favor by both parties, while giving the arbitrator significantly more control of testimony than he or she ordinarily would exercise. The arbitrator needs to be sensitive, however, to the possibility that this process may not always work effectively, in which event he or she should be prepared to pull back.
Third, the arbitrator's own questions--permissible, with restraint, even in a well-advocated case--may be used with telling effect. In this case, it is even more important than usual, however, that such questions be propounded diffidently, without seeming to take over the representation. They should be neutrally worded nd non-leading. Obviously, this technique may require departure from the practice, usually preferred, of deferring arbitrator questions until all parties have completed their examination of a witness. So used, it can help to deal with problems arising either on direct examination or on cross. In the case of cross examination, however, it is particularly important that the arbitrator's questioning should not reflect, as an advocate's may on cross, any evaluation of the substance or truthfulness of a witness's answers, not to mention of the merits of the parties' respective cases. As in any case, after examination of a witness by the arbitrator, the parties should always be afforded the opportunity to ask further questions of the witness "within the scope" of the arbitrator's examination.
Special Problems Related to Narrative Testimony
If the way to appreciate skillful trial advocacy is to
watch trial incompetence, the way to appreciate the question and answer
method of examination is to listen to narrative testimony. Even skilled
lawyers, when they represent
themselves (as they often do in statutorily mandated
lawyer-client fee arbitration, for example), find it difficult to present
an account of events or perceptions nearly as clearly in narrative form
as they could under skilled examination. Non-lawyer parties representing
themselves never do better and often do worse at presenting their own testimony--typically,
the heart of whatever case they have.
Here, with a sufficiently gentle hand, the arbitrator may be able to break in, and to break up the account into intelligible, digestible bites, by so simple a device as asking the party to allow occasional interruptions and then by asking low-key, open-ended questions such as "What happened next?" With luck and a fair wind, the arbitrator may be able to guide the testimony of an unrepresented party in a way that is perceived as fair and helpful by all concerned. Even where this technique is for some reason not entirely effective, the arbitrator should not hesitate to "break in and break up," as gently as possible, the testimony of an unrepresented party in a way that helps to keep it intelligible and on point.
Special Problems Related to Separating Argument from Testimony
It is likely to prove impossible to induce or enable the unrepresented party to separate completely argument from percipient testimony. It is certainly worthwhile, nevertheless, to explain this distinction to such a party early on in the hearing, and to advise the party that the arbitrator will intervene when appropriate in order to maintain that distinction insofar as is practicable. It is also necessary to be sure that such a party understands that, while argument should not be interspersed in testimony, there will be full opportunity to argue at the appropriate point, and to make clear when that point will occur.
Maintaining Control--And Preserving Fairness And Integrity
As noted, the arbitrator in a under-represented-party case needs to establish control of the case at an appropriate early stage. If the arbitrator is aware of the kinds of problems presented by an under-represented party and skilled in the application of the tools available to solve them, he or she will be successful in establishing requisite control. Indeed, in the hands of a skilled arbitrator, the demands of these cases may afford enhanced opportunities for establishing and maintaining control.
The remaining test is the ultimate one: To preserve the
fairness and the integrity of the process even in the face of the disorienting
presence of the under-represented party. Although the pole stars do not
provide their usual guidance in this circumstance,
the goals toward which their gravitational pull normally draw the process--fairness
and efficiency-- must remain the arbitrator's navigational guide, even
in the face of the challenge posed by the under-represented party.
The Neutral Corner is published by the NASD Regulation Office
of Dispute Resolution in conjunction with NASD Corporate Communications.
The Neutral Corner is published three times each year. Send all
correspondence to Tom Wynn, Editor, NASD Regulation Office of Dispute Resolution,
125 Broad Street, 36th Floor, New York, New York 10004, or call (212) 858-4400.
For further information, please e-mail: fos@fos-adr.com .
fos-art1.htm2 created July 8, 1999: rev. 01; revised November 9, 1999:
rev. 02