Perspective

Arbitrations and Adieu

by Mark F. Dunkle, Esquire

If you crave a little entertainment during your work day, a distraction from the rigors of your normal practice, volunteer to serve as a Rule 16 Arbitrator. It’s not just a rewarding service to the Bar, it’s usually loaded with memorable moments. Some of my personal favorites over the years:

How Not to Impress the Arbitrator: If you generally practice upstate and your arbitrator and your opponent are both Kent Countians, trust that the Arbitrator takes his job as a fair and impartial judge seriously and don’t accuse him of “hometowning” you when your objection is overruled. The correct characterization of learning the local legal ropes the hard way is called “home-cookin” not “hometowning” so if you are going to slander the Arbitrator at least use the correct vernacular.

My Client is Angry and May Bring a Weapon to the Arbitration: The Arbitrator frowns on endangering his staff, clients, litigants and himself so intercede with your client before he or she walks into the arbitration. Otherwise, the Arbitrator will relocate to the Courthouse (behind the metal detectors).

Crying Witnesses. Don’t have them.

Threatening to Leave The Arbitration Midway Through. Dissatisfaction with a ruling shouldn’t translate into an excuse to leave the Arbitration before the end of the case. If the Arbitrator is staying, you should stay too.

Smirking Parties. I have never really been impressed by a litigant making contorted facial expressions while the other side testifies. This will lead to a harsh reprimand from the Arbitrator. Caution: this could cause retaliatory smirking by the offended litigant.

Submitting Handwritten Doctors Notes. Get them typed if you really want them read. Fattening your exhibit package with physician scribble is really not impressive.

Making out the Case for Loss of Consortium. I readily get the picture with one tasteful question. Don’t explore the limits of First Amendment protected speech when trying to make your loss of consortium claim. Less is definitely more here.

The Over-Friendly Interpreter. If there is a language barrier, bring a real interpreter not a close friend of the witness. When the Arbitrator hears a paragraph answer in a foreign tongue translated as “Yes” the Arbitrator gets concerned.

I also have a few tips for the Arbitrator, from past experience:

Stay in Your Area of Practice: When one well known Chancery practitioner asked mid-way through the slip and fall arbitration “By the way, what exactly is an IME?” I knew I was in trouble.

Don’t let the Arbitration Become a Scavenger Hunt. Remember, not only is Arbitration NOT discovery, the Rules don’t really allow discovery until Arbitration is complete. When witnesses start their Dickensian answer with “I was born” it’s time to intercede.

Don’t Complain About the Drive to Dover/Georgetown. Anyone who has ever practiced in Atlanta (like me) or Los Angeles will double-over in laughter.

That’s it. After four years of IN RE: duty I am fresh out of embarrassing stories – or at least those I can put in print. It’s been therapeutic and I hope, at times, entertaining. Now, get back to work.

Mark Dunkle is a Director with Parkowski, Guerke & Swayze, P.A. in Dover.

Return to July/August 2003 Table of Contents.