don’t want someone who has just enough knowledge about the subject matter in dispute to want to second-guess your expert’s opinion. In the final analysis, I would suggest


that before agreeing to an arbitrator or ar- bitrators for you client’s dispute, ask yourself the following question “Would I be comfortable allowing this person or persons to make an important decision in my own business or personal affairs?”


The arbitration agreement Once you have agreed upon an arbi-


trator, or even before, you should prepare a written arbitration agreement. Bear in mind that Title 17 of the Maryland Rules provides that arbitration is not binding “unless the parties otherwise agree in writ- ing.” Since arbitration is a creature of contract, you should be careful to set forth all of its terms and conditions in the agree- ment. Section 3-214 of the MUAA provides that a party at an arbitration hearing has the right to be heard, to present evidence material to the contro- versy, and to cross examine witnesses. If these rights or any of them are to be waived or limited, you must express this in your agreement. Minimally the parties should agree on the number of live wit- nesses that will testify, what reports and other documents will be submitted and when they will be submitted. Most arbi- trators like to get these submissions in advance of the hearing. I personally pre- fer to have counsel bring any such documents to the arbitration hearing and have them offered at that time. This in- sures that each side is aware of everything that the other side is submitting. The arbi- tration agreement may also take the form of a multi-page document, spelling out in detail the conduct of the proceeding and containing a plethora of “whereases”. One of the advantages of arbitration


over trial is its flexibility. You can tailor your arbitration proceeding to fit the dis- pute to be resolved. In the form that we most commonly see, the automobile ac- cident case, where liability is admitted. live testimony is generally limited to the plain- tiff and one or two other witnesses, and medical, hospital and other reports and documents are submitted to the arbitra- tor. The agreement in this type of arbitration is usually a high/low letter from defendant’s counsel, signed by plaintiff ’s counsel, with a stipulation of dismissal upon receipt of the arbitrator’s award. The parties agree upon a minimum and maximum amount that the plaintiff win recover if the arbitration award is


Summer 2003 Trial Reporter 17


under or over those amounts and to be bound by any award within the mini- mum/maximum range. To avoid any temptation for the arbitrator to split the difference, he or she should not be privy to the high/low. If the parties wanted to split the difference, presumably they would have settled the case. On the other hand, the arbitration may take the form of an actual court proceeding, with the designation of experts, discovery, pre-trial motions and finally a full-blown trial be- fore the arbitrator. Whatever form it takes, it is important to spell out the ground rules in the arbitration agreement.


A timetable for the arbitration As the stand-up comic says—timing


is everything! The promise of arbitration for your client is that it is a cost-effective alternative to expensive, drawn-out liti- gation. To fulfill this promise, it is important that time restraints be agreed upon. To this end, if the arbitration in- volves a complex dispute, arbitration hearing dates should be agreed upon, as well as dates for the naming of experts, discovery deadlines and any pre-hearing motions. A scheduling order signed by the


parties is helpful in moving the process along.


Presenting your case to the arbitrator What kind of a presentation should


you make to an arbitrator? The most im- portant ingredient to any presentation, whether it is to a jury, a judge or an arbi- trator, is preparation. There is no substitute for it. Don’t feel that you have to leave behind any photograph, diagram or other visual aid just because it’s an ar- bitration proceeding and not a trial. On the other hand, don’t bury the arbitrator with a truck load of paper. There is a 17th Century French philosopher who began a letter to a friend with the following: Forgive me for writing such a long letter. I had not time to write a short one.” If, for example, the arbitration involves a personal injury claim where the plaintiff has had a long hospital stay, it’s all right to submit the entire hospital record, but you should in your presentation reference the parts of that record that you feel are important. In fact, a written summary of your client’s claim or defense consisting


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