I am going to ask the sellersto testifysince they heard the buyers verbally state that they wanted to buythe houseand were going to make an offer


. T


o make it easier to under-


stand this case, I am also providing you with this timeline of the key events in the transaction for your useand a list of the people involved in the transaction. I am hoping that we can present our case in about 40 minutes.”


Why is using a question and answer format —with the


broker asking the questions and the agent answering them — a good way to get all of the key facts out on the table quickly? The answer is that most people are not good at telling long stories. They tend to ramble and sometimes forget to mentionkey facts. Aquestion and answer format gives some structure to the presentation and allows the story to be told in smaller, more manageable pieces. If the agent forgets to say something important, the broker can prompt the agent with a follow up question. The same is true in any other presentation of a case in court. While it is important not to sound rehearsed, practicing a bit will help make for a more professional presentation. Creating a visual timeline for the panel’s use and giving them a cast of characters makes it easier for the panel to quickly grasp what happened in the transaction and who did what. If there is a key piece of evidence, such as a letter or state- ment, consider having it magnified and put on a board for the panel to see throughout the hearing so that it serves as a constant reminder of the strongest point in your case.


[5] CROSS-EXAMINATION


Each party is allowed to cross-examine the other party’s witnesses. Most parties in REALTOR®


arbitrations do not


use attorneys to present their cases. Each side should have realistic expectations of what a cross-examination is likely to accomplish. There will not likely be any Perry Mason mo- ments where the other party will break down and admit that he or she parachuted into the transaction and is not entitled to a commission. Similarly, using cross-examina- tion to be argumentative almost always backfires. So, for example, it would be terrible to say something like “Ms. Jones, you parachuted into this transaction just to try to get a commission you weren’t entitled to. Isn’t that right?” The goals of a cross-examination should be to identify


inconsistencies in a witness’s testimony and focus on the weak points in the other party’s case that they may be try- ing to gloss over. Questions should be asked in a way to try to illicit short or yes or no answers from the witness. While in a judicial proceeding the party conducting the cross-ex- amination can cut off a witness whose answer goes be- yond the scope of the question, in REALTOR®


arbitrations,


most panel chairs will allow a witness to say whatever is on his or her mind. In focusing on inconsistencies, let’s say that the buyer signed a registration book at an open house


20IGEORGIA REALTOR®


stating that he or she was not working with another agent. If the buyer is now testifying that he or she had been work- ing with another agent all along, it would be appropriate to ask the buyer the following question.


BROKER: Mr . Buyer , you have testified today that


you were working with Ms. Jones as a buyer agent since before you ever visited the property at 123 Huckleberry Lane. Is that correct? WITNESS:Y


es, that’s right.


BROKER: But, it is also true that when you first visited the property, you signed a registration book stating that you were not working with a real estate agent or broker


. Is that not true? There is a tendency on the part of people inexperienced


with conducting a cross-examination to make the mistake of asking the witness to explain the inconsistency or to browbeat them with the inconsistency. It is usually enough to highlight the inconsistency and let the panel draw its own logical conclusions from the inconsistency.


[6] CLOSING Each side gets to make a closing argument before the


conclusion of the arbitration. Rather than rehashing everything that was said before, a good closing should be a summary statement. The panel has already heard the testimony and seen the evidence. Hearing it again tends to make most panel members impatient and cause the arbitration to end with a thud rather than a crescendo. REALTORS®


should remember that the panel members,


like all human beings, have limited attention spans and most already have formed their initial conclusions on who deserves the commission.With this context, REALTORS® should consider following the rule of three and highlight the three most important reasonswhy the panel should rule in their favor. While emphasizing just three key points may seem difficult, it is much more likely that the panel will remember these three things as they start to delib- erate than for them to lose focus and hear nothing if you plow through the entire case once again. The closing is also a good time to remind the panel of inconsistencies or weaknesses in the other party’s case and the conclu- sions they should draw from them. As a REALTOR®


putes over commissions with other REALTORS® the number of times REALTORS®


, you are required to arbitrate all dis- . While


end up in an arbitration


is usually limited, hopefully this article will leave you better prepared when you do.


SETH G. WEISSMAN IS GAR’S GENERAL COUNSEL,


AN ATTORNEY AT WEISSMAN, NOWACK, CURRY & WILCO, P.C., AND A PROFESSOR OF THE PRACTICE OF CITY PLANNING IN THE COLLEGE OF ARCHITECTURE AT GEORGIA TECH.


NOVEMBER I DECEMBER 2014


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