"I Feel Sick"
Five Tips for Enduring Your First Arbitration Hearing
I can’t remember the subject matter or client in my first arbitration case. I do remember, though, the feeling I had in the days leading up to it, culminating in a terrible stomachache the morning of the hearing. I was so nervous. I had been to at least a dozen hearings as an observer, and I had done a mock arbitration in law school, but taking my long green folder into the conference room while my client and the grievant watched me with hope in their eyes was a new and terrifying feeling. And don’t get me started on how scary opposing counsel and the arbitrator seemed. I don’t think I’ve felt that young before or since that day.
Over my next several cases, the stomachache pain subsided, occasionally rearing its ugly head stomach when I had to tackle something new, but eventually, I stopped feeling that way altogether, and putting on a case felt like something I had gotten the hang of. Here are some tips for feeling less anxious about your first case.
Prepare
You don’t have control over very much in the hearing but you do have control over how well you know the evidence in your case. It’s important that you do your own preparation for any part of the case you will handle. Read the documents, interview the witnesses, make notes, ask questions. Practice your opening statements and questions out loud so that you get used to the sound of your own voice in this strange new forum. Make more notes. Imagine the other side’s best arguments and then script how you will respond to them. Discuss the case with other practitioners to double-check your gut about the merits.
Take Care
Of yourself. The night before, eat a good dinner, lay out your clothes, print up your directions (if it’s in person), put the file with your car keys, and get a good night’s sleep. Wake up early, eat breakfast, and leave early. Throughout the day, remember to take bathroom and snack breaks, and when you feel anxious, remember to breathe. It’ll all be over soon.
Rely On Your Client
But not too much. During the hearing, make sure to check in with your client to see if you’ve missed anything. Look over your notes, and read theirs. But remember, it’s your case. If they suggest something new, take time to think through whether it’s really a good idea to change strategy. Like a kid learning to ride a bike, it’s important to avoid sharp turns and confusing intersections. Stay on the path you’ve prepared for.
Listen to Your Client
This is different than relying on your client. When you are preparing the case, be sure to get agreement with your client on expected outcomes and the purpose of the case. I knew an attorney who tried to settle a case in the middle of the day even though the client had very strongly told them that they did not want to settle. They preferred losing! It was a political issue for them in the workplace. When the attorney panicked over the weaknesses of the case, they approached opposing counsel about settlement (in the hallway) and the client became very angry. It’s also important to temper the expectations of the client. If they want something that you cannot deliver (like divine retribution or something), it’s important to know that ahead of time so that you talk them out of it or bring in a more experienced advocate to handle the issue.
Be Honest
It’s okay to tell the arbitrator and the other party that this is your first case and you are feeling a little nervous. It will break the tension and the other side won’t be able to beat up on you for your mistakes. The arbitrator is unlikely to tolerate harsh conduct by the more experienced advocate if she or he thinks its bullying. You can even ask for help. “I’m not sure how to get this document in. Do you want testimony or can we agree to have it in the record?” If you are getting lots of objections, say, “I’m confused about how to best let G tell his story if I’m going to keep being interrupted.” The arbitrator will often suggest a question, or ask one themselves, just to keep the hearing moving. Obviously don’t act too helpless; it will appear that you are unprepared. Anytime you need a real lifeline, ask for a break to caucus with your client and go call someone with more experience for advice.