The 300th Edition of ‘101’: Arbitration Advocacy in 268 Words

Celebrating 300 issues of the Arbitration Blog with the most essential tips for advocates:

Evidence Proves The Case…an advocate strives to show the ‘Correctness’ of their position before the Arbitrator …

There are seven (7) kinds of Evidence in subrogation arbitration…

Refute, Transition and Support is the mantra for every Counterclaim…

It is always what Witnesses ‘saw, felt or heard’

Advocates do not ‘pray’ for Recovery; they state ‘the Evidence has shown’…

When using Demonstrative evidence; advocates always tell the Arbiter what it is intended to show…

It is the Credibility of the Declarant that matters most with Hearsay Evidence…

Persuasive messaging in Contentions is a skill set for every advocate…

Theory and Theme is the staple of skillful arbitration argument…

The ‘Failure of Documentary Evidence’ concept is one every advocate should apply…

Justification; Transparency and Intelligibility all help speak to Reasonableness of Damages…

The Rolling Hypothesis notion that every Arbitrator retains is one that advocates need nurture…

Parties should showcase the consistency of their Evidence across the entire storyline…

Motivations to Exaggerate, Misrepresent and Omit are taken into account with Witness/Insured statements…

Arbitrators are to be told what they are expected to understand…

It is your Credibility that the Arbitrator evaluates in addition to your Evidence Arbitrators draw Inferences and Conclusions; harness that to your benefit…be Constructive not Confrontational with your case presentation…

Sensibly Demand what you seek; this is Arbitration not Mediation…

Develop moral appeal, trust and use logical reasoning with the Arbitrator to optimize the opportunity to prevail…

And the Arbitration process belongs to the parties.

 

 

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.com and has daily tips on arbitration via Twitter: @Arb2Win.




Is Win Some/Lose Some Really OK?

I should Win every case I present because the narrative offered and the Evidence submitted will  prove the ‘correctness’ of my position! Every Writer of Contentions for Arbitration cases no doubt has that belief. At the same time…if you’ve spent any time as an actual Arbitrator or case presenter you know some cases are simply more ‘Winnable’ than others. Occasionally, it may not even have anything to do with your case but rather that offered by your opponent.

And there you have the dichotomy fairly inherent in Arbitration! It’s also why those who do volumes of Arbitration cases characteristic, for example, in the insurance subrogation world will occasionally adopt the mantra…‘you win some cases and you lose some’. While one can attest to that probably being true in the aggregate … the risk with that view is fostering an illusion that your advocacy can be curtailed because ‘well…is this case really all that winnable’. The Practice side of you says you put your best; most constructive and most creative advocacy in play to harness all that you know about Arbitration and (reality check) isn’t it nice to Win a case that frankly you thought all along was pretty marginal! The question then is what is the right mix; what is acceptable; what should the margins be for the ‘Win/Lose Proposition’? Certainly, there is no one size fits all answer because the kinds and the qualities of the cases any one carrier will take to Arbitration vary.

What one can do is drill their results to find out where those best propositions lie. That could be by jurisdiction; they could be by types of Evidence; they could even by fact patterns of the loss. Decrease those you don’t Win due to certain criteria while elevating your activity with those with positive components and watch your ‘sums’ improve.

 

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




Theory & Practice: The End Game Was A Scene

We know that Arbitrators truly endorse Demonstrative Proofs; some surveys say 87% of them believe it aids them in arriving at the appropriate Award. So when it comes to  Scene Diagrams; theory tells us absolutely an advocate should include them if they fit the fact pattern of the loss.

Practice tells us that’s fine, but what do I really need to show the Arbitrator and what is my ‘end-game’ with its use. One item is paramount…and that is that you would like your Scene Diagram to be the one that the Arbitrator ‘relies’ on more than any other in the case.  That includes any Scene Diagram that may be on the Police Report or a scene depiction any other party offers.  So what does ‘rely’ mean?

Your Scene Diagram needs to be aesthetically pleasing; it needs to be easy to look at with the information quickly discernable.  Read: you don’t want the Arbitrator to move on to some other Scene Diagram to understand what really happened. It needs to be properly labeled; with directions of travel, street names, traffic signals and vehicles clearly marked for who they are in the case. If your Scene Diagram differs from that on the Police Report; you need to indicate how in your Contentions and highlight or use directive arrows on your Diagram to illuminate the points of differentiation. The nice thing is you get to ‘paint the picture’; hopefully one the Arbitrator depends on. And while the Scene Diagram you construct of and by itself does not ‘prove’ anything … the more you can gain the Arbitrator’s attention on your Evidence the better. Lastly, always think of answering this question in drafting your Contentions and offering the Scene Diagram: Included in our Evidence Package is a Scene Diagram which is intended to show ‘x’ ?

Answer this in assisting the Arbitrator with your scene.

 

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




Material Damages Advocacy: The Final Word on Subrogation Arbitration

Material Damage disputes in subrogation arbitration…a topic we kind of knew might take up the bulk of a year. When we first started writing about it with our January 1, 2018 edition the thought was let’s research as much as we can about how advocates and Arbitrators alike view effective Damages cases in arbitration and then condense that into the intercompany world where much is done via written Contentions.

As we close up the topic after 24 editions…we hope we’ve expanded your view and that parties recognize and consider terms like Reasonable Certainty; the incorporation of tenets like Company Guidelines and Industry Standards. That you recall how Arbitrators are to evaluate and assess the subject of Mitigation of Damages. That you might have printed and posted the issue we did on the eight (8) flowchart steps an Arbitrator can take in evaluating Damages. We also had Evidence of Justification, Evidence of Transparency and Evidence of Intelligibility. We wrote about the critical importance of how you present your Damages proofs recognizing that with so much Documentary Evidence you really have to showcase what you want the Arbiter to see.

Throughout the series we mentioned ‘words’ to use in supporting your Damages argument as well as language to shy away from. All in all…the series on Material Damage argument  in Arbitration was one we learned a lot of from and hope we imparted perspective you had not seen elsewhere. First hand…we can offer there is not a lot written on the subject. Much information had to be piece mealed together and applied to subrogation.

Last point…just remember you are the advocate. It is up to YOU that the Arbiter ‘understands’ your Damages position.

 

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.com and has daily tips on arbitration via Twitter: @Arb2Win.




Moving Away from Fair & Favorable: Urge the Arbitrator to Your View

The Applicant looks to the Panelist for a Favorable Decision.’  How many times do you see that verbiage at the end of Contentions in Arbitration. Closing out your Contentions and the ‘Damages’ portion is not that dissimilar than the conclusion you would place for a ‘Liability’ ruling. First and foremost ‘Favorable’ is not much different than ‘Fair’. For certain, both terms are in the eye of the beholder and something most advocates (Applicant or Respondent) would agree they want with their Award anyway.

Asking for a ‘Favorable’ ruling from an Arbitrator is a little like asking the Umpire to call a strike on a pitch over the heart of the plate with the batter swinging. If the Evidence is there and you’ve done your job in its delivery before the Arbitrator you should actually be asking for more than a ‘Favorable’ ruling. What do I mean? You should ask for the actual amount of the Damages you seek. Citing or factoring reductions and placing in play percentages can only lead to confusion for the Panelist.  Indicate the actual Dollar amount you want the Award to read when it shows up in your in-box. State that the Evidence presented has clearly demonstrated an appropriate Award in the amount of ‘x’.  Use words like ‘supports’; ‘validates’;  ‘‘confirms’ and ‘establishes’. Urge the Arbitrator to your view by presenting a closing that is dynamic and harnesses all that the Evidence has shown so that the only conclusion to be reached is the one you are requesting. To point…‘our Evidence has shown that the request for Damages is appropriate and reasonable. The proofs demonstrate that the Damages incurred were the complete and proximate cause of the Respondent. We request an Award of  $4,435.’ It is said parties need to Demand what they seek and that is ‘favorable’.

 

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.com and has daily tips on arbitration via Twitter: @Arb2Win




Backwards to Your Damages: Regressive to Progressive

Most Arbitration advocates will ascribe to the fact that Topical Organization is the cornerstone by which parties draft their Contentions and present their case. We’ve discussed the primary importance of Issues, Elements and Turning Points many times before. You will also see parties go with Chronological structure in their narrative. How often have you seen a case start with … ‘this loss happened on <date>.’  An alternative approach with Damages presentation is to look at what is in dispute first and backtrack your narrative from there. It’s a guiding thought to the Arbitrator on the issue of Primacy. Start with an understanding/appreciation for the amount being contested and then build in details over that challenged amount. Be specific!  In other words; start with the amount being disputed and backtrack your Contentions assembling details and coalescing support of your argument along the way. This as opposed to say…copying-and-pasting line items from an audit report and expecting the Arbitrator will see the reasoning behind your position. If something  is based on an Industry Standard then say so but explain why the Industry Standard is applicable. If the adverse challenges that your insured benefited from the damages you paid then address that and specifically why they did not. The emphasis is that parties not get perplexed about creating Contentions around volumes of Documentary Evidence such as Estimates, Audits, Labor Rates and Rental Bills but instead focus on why the case is in dispute and why the adverse is not paying the amount sought. Look at the dialogue and communication from the opposing party and use that to address the obstacles precluding the claims resolution. Begin at the end and work backwards  on the disputed damages.

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.com and has daily tips on arbitration via Twitter: @Arb2Win




Going Beyond the Docs: Those Other Proofs that Support the Damages

Since we pick-up new Readers throughout the year…here’s a quick reminder for Advocates of those seven core kinds of Evidence inherent in subrogation Arbitration cases. We have Direct, Documentary, Real, Opinion, Demonstrative, Hearsay and Circumstantial. So how can a presenter leverage other proofs (beyond Documentary) to help support the Damages argument?

Since Credibility and Reliability are always on the line as Arbitrators evaluate cases; here are some thoughts. Be aware of rather standardized language from the adverse that infers a pattern of unilaterally challenging Damages irrespective of the facts of the case. Address this in your Contentions to showcase that the Evidence in your claim is distinct and the Damages awardable. Be keen to where the adverse cites something as a ‘Rule’ the Arbitrator should follow. Is it a ‘Rule’ or a ‘Guideline’? Example – saw a case where a party said ‘by Rule’ a photograph was not required to prove Damages. Again, is that a ‘Rule’ or a ‘Guideline’ to Arbitrators from the provider administering the case. As advocate…be assertive and challenge the inaccuracy. Be aware of comments from the adverse that are uncorroborated. They offered your insured apologized at the scene, but show no connection (for the Arbitrator) to any Evidence that displays this. You highlight in your Contentions this lack of proof as it speaks to truthfulness of the case. If that statement is unfounded what else in the adverse case might also be unsupported.

How about your Police Report; video from the loss or witness statements that display an effort to obviate responsibility (such as the adverse attempted to flee the scene). You utilize that Evidence for Persuasive Impact! Leverage your other proofs; go beyond the Docs.

 

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

 




Documentary Evidence of Damages: The Proof is in What It Says

Damages presentation in Arbitration relies heavily on Documentary Evidence. Most advocates preparing cases recognize this and   are cognizant that any Documentary proof they submit before an Arbitrator is placed there simply for…‘what it says’. Advocates need to be thoughtful with their Documentary evidence while underscoring heavily that ‘what is says’ perspective. In other words; the volume of Documentary proofs submitted in any one docket by both sides arguing Damages can be exhaustive and almost overwhelming for the Panelist. Think about Estimates, Bills, Audits, Proof of Payment, Parts Accessibility and the list goes on.

Now think how often do parties submit a significant amount of Documentary proof absent clear and explicit direction to the Arbitrator for ‘what it says’; what it is intending to prove and what should the Arbitrator be taking away from it. If you look at Part Accessibility (for example)…did the party presenting the case highlight on the Evidence itself the part in question and then direct the Arbiter in the Contentions to see the highlighted portion and on what page? What about the timeline? We know in Arbitration timelines matter because they can speak to Mitigation and why parties took or did not take the actions they did. Was a Parts search run close to the repair date? Were the parts proven do be available? Is there Case Law or statute that speaks to use of other than OME parts? Did you include that as Evidence and explain in your Contentions why it is applicable?

The main theme here is parties in a subrogation arbitration  case where Damages are contested need to be very direct with the Arbitrator. Keep in mind this view…the Documentary exhibit you just submitted…what is the Fact within in it that it proves ?

 

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




Protocols to Flowcharts: Catching You Up on Damages in a 28:1 Ratio

So who knew? Who knew it would take almost half-a-years worth of Blogs to breakdown the issue of Damages in an Arbitration hearing ! And yet; we still have more to cover. When we started the series we knew it would go into greater detail than most would ever cover. We also knew that the majority of subrogation Arbitration cases revolve around two core issues; Liability and Damages so it made sense to dive deep. Here’s a quick recap of what you’ve read as we hit the home stretch. We started with Protocols on Damages (the very first thing we covered) and why they are important to Arbitration organizations administering cases. Bottom line…Protocols help with the quality of the Award when it comes to Damages. We talked about Reasonable Certainty which is a criteria Arbitrators can use to toward the evidentiary threshold so critical to proving ones case. Of course, we mentioned Mitigation which spoke to being out front and early with your Damages in your Contentions. Next up we went into Guidelines and Standards which advocates so often place into their narratives. We explored what those terms truly mean and how presenters can best support the inference they think should be applied.  The presenters often used phrase ‘Reasonable’ seen in so many Contentions on Damages cases was next where we brought forward Evidence of Justification; Transparency and Intelligibility. Those are (3) litmus test items an Arbitrator can use toward assessing reasonableness of the Damages paid and/or contested by the adverse. Most recently, we went through the eight ‘Flowchart’ steps an Arbitrator can take weighing the competing Damages arguments and Evidence of the parties.  So 28 Blogs condensed into 1 ~

 

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




The Methodical Evolution: Working the Arbitrator Through the Damages

When Damages are at issue in a subrogation arbitration docket…the Structure of your case plays a significant role. It is understood that Arbitration companies will create areas within their filing templates for parties to indicate ‘Damages Disputed’ or ‘Itemization’ but beyond that what can you do to foster your most productive narrative. We know about separating out key aspects  of your Evidence such as a paragraph on the Police Report or where you want to discuss your Theory. The same can be said for working within those aforementioned Damages areas of a template filing form. A party should consider ‘bolding’ the first sentence in the Damages area to ensure the Arbitrator recognizes the shift in transition from discussing liability…to now Damages. Make that first sentence very pointed about what the adverse is refuting. We talked about ‘Theme’ last week; nothing wrong with similarly incorporating a Theme into your Damages section. Use productive verbiage like we ‘challenge these reductions’.  Segment out into either paragraphs or bullet point form areas of the Damages dispute such as Estimating lines; Labor Rate differentiation; Storage days or even discrepancies with Rental days or rates. In other words; make it easy on the Arbitrator to clearly understand what within the Damages being claimed is disputed and do so within categories. Also, be careful your Evidence is consistent with similar but different terminology like Repair/Replacement. Ensure your Contentions match what your Adjusters Notes offer about the Damages. If utilizing a Vendors Review; present early in the case that you are presenting same.  Let your Damages argument gradually evolve as you lead the Arbitrator to the conclusion you seek. Be pragmatic; be practical and be persuasive

 

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