Blog #16 (Arbitrator Selection--What Should Be Considered; Tim "Rock" Raines)

By Raines Feldman LLP on December 28, 2011 7:00 AM

Your case often is won or lost by whom you select to be your arbitrator. One of the principal advantages of arbitration, if not the most significant one, is that you can have significant control over who decides your case.

Your best course of action is to obtain your arbitrator by agreement. The next best alternative is for you to be able to control the selection process as much as possible if you cannot reach agreement. You rarely can do this with a trial judge, and in my opinion, no matter how proficient your attorney is at jury selection, your control over that process is significantly more limited.

So how practically do you obtain the arbitrator who hopefully will issue you a favorable award? The best and most obvious way is, whenever possible, to agree to or select a person who you have used before with good results. This might not be as difficult as it sounds, particularly if you arbitrate often in a particular industry for which there is a specific panel of arbitrators (for example, health care, employment or construction). Having an experienced attorney helps here, because your attorney will likely have a wealth of information about numerous arbitrators, both good and bad, from previous experience upon which to base a recommendation. What I often do is ask my adversary for three to five arbitrator suggestions because I am fairly confident that I will be able to recommend at least one of those to my client.

If an agreement cannot be reached, the arbitration tribunals present both sides with lists of potential arbitrators selected randomly who they can strike and rank. Again, the experienced attorney will be very helpful in reducing the list to only, or a majority of, acceptable choices. What I do whenever I receive a list of arbitrators is to first strike all of the unacceptable candidates. I then send an email to everyone in my firm and all of my clients who arbitrate often to learn whatever I can about the remaining arbitrators on the list who I don't know. I then rank the remaining ones. I honestly cannot recall a situation where I did not receive as an arbitrator one of the first three choices.

Some arbitration agreements call for three arbitrators. Clients rarely want to pay high hourly rates for three arbitrators and usually agree to have only one arbitrator. But there are some cases where the parties for whatever reason (complexity, high profile, amount at stake) want three arbitrators rather than just one. In those situations, the parties may each choose one arbitrator, and the two will then agree on the third. The two selected by the parties can either be advocates for their respective parties, with the third being the neutral, or all three are neutrals. Or all three can be selected in the manner I describe in the immediately proceeding paragraph. Again, in situations where there are three arbitrators, it is at least triple the cost and often more than that because the arbitrators incur additional time conferring.

The characteristics to look for in an arbitrator differ from client to client and case to case, but here are some of the things I look for. I want an arbitrator who will get in the trenches of the case, i.e., read and consider everything I present. Some either don't want to or don't have the attention span. I prefer an arbitrator who has experience in the industry/subject matter of my case. Many of my clients prefer a retired judge over a lawyer (arbitrators can be either). In certain situations, I have that preference as well but most of the time I am more concerned with the individual based on my previous experience and how I believe he or she will react to the case and the issues contained therein. Retired judges more often than not, based on my experience, are more technical and black and white, while lawyers (and some retired judges) are more flexible and grey. If my client has a strong legal position under a contract, for example, I probably would prefer my arbitrator to be a retired judge. If my contractual position is weak but the equities favored my client, my preference likely would lean more toward a lawyer or a particular retired judge whose propensities I knew. But when all is said and done, the arbitrator selection process really needs to be conducted with great care and diligence on a case by case basis with the goal being to find an arbitrator who most matches your case in a way that hopefully will increase your chances of obtaining a favorable result.

Now for the opening day memory.

853256_1.JPGTim "Rock" Raines was an amazing baseball player. Next to Rickey Henderson, he was the best all around lead-off hitter (speed and power) I have ever seen, with no disrespect to Ichiro. He played for 23 years from 1979-2002 and was most known for his tenure with the Montreal Expos from 1979-1990. He also had an abbreviated return to the Expos in 2001, which I had forgotten about. In Tim's initial tenure with the Expos, he stole more than 70 bases in each of his first full six years, including an astounding 90 in 1983. He began his career with 27 consecutive stolen bases before getting caught. In 1981, he finished second in the Rookie of the Year voting to Fernando Valenzuela. In 1987, Tim became a free agent and, unbelievably, no team would sign him. Having no other suitors, he re-signed with the Expos on May 1 and, with no Spring Training, arguably had the best game of his career (which he describes below). The owners were later held to have colluded by not signing free agents, which was why no other team signed Tim, and he and other free agent players that year ultimately were awarded significant damages. Tim was traded to the Chicago White Sox before the 1991 season and to the New York Yankees before the 1996 season, where he won two World Series rings in 1996 and 1998. He also had short stints before retiring with the Oakland Athletics, Baltimore Orioles and Florida Marlins. I bet there are very few people who remember that; I certainly didn't. I have been fortunate enough to meet Tim a few times, but one was particularly special so I will share it. In 2006, I took my son, who was 14 at the time, to a Spring Training game and we were able to go on the field so he could get autographs. But being a little overwhelmed, he was hesitant to ask anyone so we did a lot of standing around. I happened to see Tim heading in our direction in his all black Chicago White Sox spring training uniform (he was coaching at the time) and although he looked a little intimidating, I prodded my son toward him with his ball and his sharpie telling him that Tim was a great player, a former Yankee, etc. Tim saw me doing this and that my son was having a little difficulty, and he stopped right in front of us. I said to my son--ok, now you can ask him. My son holds out his ball and pen to Tim and says, "Mr. Raines, can I please have your autograph?" and Tim looks at him very sternly and says, "No." Then he breaks out in this big wide smile and cackle and says, "Only kidding," signs the ball and poses in a photo with his arm around my son. Seeing my son's face go from outright fear to joy in seconds was priceless. Tim got a real kick out of it also. Here are Tim's Opening Day memories:

"Two stick out in my memory. In my first Opener, in 1981, we played the Pirates in Pittsburgh. I remember leading off the game with a walk, stealing second, and when the catcher's throw went into center, getting up and scoring. All in one play. Right off the bat.

"And one year [1987], I missed Opening Day because I was a free agent and I wasn't able to play until May 1st. But in my first game of the season, I hit a grand slam against David Cone and the Mets. The first pitch he threw to me I hit off the right field wall for a triple, and I ended up going 5 for 5 and hitting a grand slam in the 10th to win the game."

I actually remember watching that game (24 years ago) and being amazed at the time that he played a game like that with no Spring Training whatsoever.

See you in two weeks. Richie

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