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Arbitration is here to stay: Know how to prepare and present your best case

Vol. 75, No. 4 / July-August 2019

Summary

by Stephen Douglas Bonney[1]

By failing to prepare you are preparing to fail. — Benjamin Franklin

by Stephen Douglas Bonney[1]

By failing to prepare you are preparing to fail. — Benjamin Franklin

Arbitration Is Here to Stay

 

 

 

 

 

 

 

 

 

 

 

 

The Status of Arbitration Today

“Arbitration is the voluntary submission of a dispute by the parties to a disinterested person for final determination,”[2] and it has a long pedigree in commercial, international, and traditional labor-management disputes. Arbitration advocates have proclaimed it as a pragmatic alternative to the formality, delays, financial burdens, and destructive effects of court litigation.[3] But early judicial decisions were often hostile to arbitration.[4] The business community pushed back against the courts, and – in 1920 – New York enacted the first modern arbitration statute.[5] New Jersey and Massachusetts quickly passed similar laws, and by the early 1930s, 12 states, including New Jersey and Massachusetts, had enacted “the Draft Act,” a model arbitration statute prepared by the then-fledgling American Arbitration Association (AAA).[6]

In 1925, finding arbitration to be a more rational and workable system for dispute resolution than litigation and using the New York Arbitration Act as its model, Congress enacted the Federal Arbitration Act (FAA) “in response to widespread judicial hostility to arbitration agreements.”[7] Among other things, the FAA affirms the validity and enforceability of private arbitration agreements, empowers courts to enforce such agreements and resulting arbitration awards, provides for arbitral subpoenas, and establishes extremely narrow grounds for vacating or modifying arbitration awards.[8]

In 1955, the National Conference of Commissioners on Uniform State Laws (NCCUSL) promulgated the Uniform Arbitration Act (UAA) using the FAA as a model. “A primary purpose of the 1955 UAA was to insure the enforceability of agreements to arbitrate and the finality of arbitration awards in the face of often hostile state law.”[9] The UAA “in some form is the basis of arbitration law in 49 jurisdictions.”[10] Missouri enacted the UAA in 1980.[11] In 2000, the NCCUSL approved the Revised Uniform Arbitration Act (RUAA),[12] but Missouri has not yet adopted it.

Over the years, the Missouri General Assembly has embraced arbitration as the preferred means of resolving a wide variety of disputes, enacting statutes that require or permit the arbitration of disputes involving tax issues,[13] public works contracts,[14] the receipt and expenditure of state funds by counties,[15] negligence claims against the Missouri Department of Transportation,[16] highway construction contracts awarded by MoDOT,[17] the liability for and calculation of penalties under the prevailing wage statute,[18] and issues about “wages, hours of labor, and conditions of employment” arising between fire departments and their employees.[19]

Judicial responses to arbitration have changed over time. For many years, the U.S. Supreme Court interpreted the FAA narrowly.[20] But since 1967, with its decision in Prima Paint Corp. v. Flood & Conklin Mfg. Co.,[21] the Supreme Court has consistently upheld commercial arbitration agreements and awards against nearly all challenges. During that time, moreover, the Court has vigorously enforced the FAA’s “liberal federal policy favoring arbitration agreements.”[22] In doing so, the Court has consistently extolled “the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.”[23]More recently, the Supreme Court has expanded the arbitration universe by approving agreements to arbitrate disputes involving federal employment and consumer statutes.[24] In May 2018, in Epic Systems Corporation v. Lewis,[25] the Supreme Court continued the trend of support for arbitration, rejecting a robust challenge – rooted in the protections of the National Labor Relations Act – to employment arbitration agreements that include a class action waiver clause.

The commitment of Missouri’s appellate courts to the liberal federal policy in favor of arbitration is disputed. Professor Michael A. Wolff, a former judge and chief justice of the Supreme Court of Missouri, has asserted that “Missouri law is not hostile to mandatory arbitration.”[26] But Justin Arnold, the general counsel of the Missouri Chamber of Commerce and Industry, recently expressed a different view, observing that “Missouri courts have shown a continued hostility to enforcing [employment arbitration] agreements.”[27] An academic study supports the perception of Missouri’s business leaders.[28] Specifically, that study, based on a quantitative review of court decisions considering the enforceability of arbitration agreements, concluded that “Missouri[’s] . . . appellate courts . . . appear to be very sympathetic to unconscionability arguments, but only if the challenged provision is part of an arbitration agreement.”[29] In other words, statistics show that Missouri’s appellate courts more closely scrutinize arbitration agreements than other types of contracts.

Recent case law developments suggest, however, that the era of judicial hostility to arbitration in Missouri may be on the wane. In two decisions from November 2017, the Supreme Court of Missouri upheld commercial arbitration agreements that delegated issues of contract formation to the arbitrators rather than to the courts.[30] In September 2018, furthermore, the Court heard arguments in three cases involving challenges to employment arbitration agreements.[31] In Soars v. Easter Seals Midwest, the Supreme Court of Missouri held that the parties’ mutual promises to arbitrate contract formation issues constituted consideration so that the delegation clause was enforceable under generally applicable principles of Missouri contract law.[32] In the other two consolidated cases, the Court upheld the delegation clauses in the parties’ arbitration agreements because the employees did “not raise challenges specific to the delegation provisions[.]”[33] Although the decision in the consolidated cases was unanimous, the procedural nature of the decision suggests that the Court has postponed the merits of the underlying dispute to a future case. Nonetheless, the overall trend suggests that a majority of the Court may look more favorably on arbitration.

Given these developments, a wise practitioner should get up to speed on arbitration practice and procedure because it is increasingly likely that your clients will at some point engage you to represent them in an arbitration.

Arbitration and Litigation Compared

Arbitration is different from litigation in a few substantive respects. First, rather than being assigned to a judge by lot, the parties select the decision-maker – the arbitrator. Second, because “arbitration is a matter of contract,”[34] the arbitration agreement – rather than a statute or a code of civil procedure – will dictate how your client initiates or responds to arbitration. Sometimes formal pleadings are required, but often the arbitration agreement or contract just requires a bare bones statement of the dispute in the form of a memo or letter. Third, rather than being bound by pre-determined rules of courtroom evidence and procedure, the parties select the rules by which the arbitration will proceed. Fourth, the parties generally agree that the arbitrator’s decision will be final and binding so that judicial review of an arbitrator’s award is very narrowly prescribed.[35]

Arbitration also differs from litigation in a few relatively trivial respects. For instance, arbitrations usually take place in mundane conference rooms rather than in stately courtrooms. Additionally, the arbitrator wears business attire instead of a black robe and is referred to as “madame [or mister] arbitrator” rather than “your honor” or “judge.”

Initial Steps in Arbitration Advocacy

Great arbitration advocacy requires the same thing that great trial advocacy requires: diligent and thorough preparation. Thus, “if it isn’t possible to go into arbitration well prepared, the best advice [. . .] is, don’t go.”[36] So, when your client calls and asks you to handle an arbitration, the first thing you should do is discuss the costs and investment of time and energy required to properly prepare and present the case. If your client balks at the commitment required, encourage your client to seek mediation.If arbitration is the right way to proceed, you need to review the arbitration agreement. It will tell you what rules apply to the arbitration process generally, including the critical steps of initiating the arbitration (if your client is the claimant) and selecting the arbitrator.

Since Congress passed the FAA in 1925, various organizations have developed rules governing arbitration proceedings. In labor arbitration, for instance, the Federal Mediation and Conciliation Service (FMCS) and the AAA have developed arbitration rules to govern labor-management dispute resolution.[37] In other areas, such as commercial and construction arbitration, the AAA’s rules predominate. In employment arbitration, AAA, JAMS, and the Financial Industry Regulatory Authority (FINRA) have adopted the most commonly used rules.

After familiarizing yourself with the rules applicable to your client’s arbitration, the first order of business is to understand how many arbitrators will serve and how the parties will select the arbitrator. Sometimes, the arbitration agreement or the applicable rules will provide for a single arbitrator, and sometimes they will provide for a board of arbitrators (commonly made up of three people, a so-called “tripartite board”). The agreement or the applicable rules will also specify how the parties will select an arbitrator or arbitrators to hear their dispute.

At this early stage, you should devote significant attention to the facts of your case. First, get the basic story from the key players – usually your client and other insiders. Then, gather and review the relevant documents, identify the people who have direct knowledge of relevant facts, and interview those witnesses. This fact-finding will allow you to start developing the themes of your case and will inform all your subsequent decisions, including your selection of an arbitrator.

Demanding Arbitration

If your client is the party initiating arbitration, you should discuss the advisability and timing of arbitration. You can also draft any document demanding arbitration. If you participate in such drafting, you should keep the demand concise. Advance your strongest claims and leave the rest behind. Concentrating on your best claims and legal theories will help you when you get before the arbitrator because you will be operating from a position of confidence and strength. Dropping claims after the arbitration begins or spending time making losing arguments may make the arbitrator wonder about the strength of your main contentions.

Regarding the timing of the arbitration demand, consider whether the dispute involves a party with which your client has ongoing business or another relationship. If so, you should consider advising your client to move quickly in demanding arbitration and in pushing for an aggressive schedule for a final resolution of the dispute. A delay makes it more likely that the process of dispute resolution will cause bad feelings and ill will, potentially damaging future relations between the parties, perhaps to a breaking point. This is essentially the theory behind labor arbitration, which the Supreme Court has recognized as a substitute for industrial strife and economic warfare.[38] Prompt resolution of disputes – even when the process provides rough and imperfect justice – ensures that disputes do not spiral out of control and cause long-lasting damage to the parties’ relationship and mutual interests.

Selecting the Arbitrator

Selecting the arbitrator is a critical stage in the arbitration process, and it is – at least potentially – a great advantage over litigation because it gives the parties opportunity to select a subject-matter expert as their arbitrator. So, an advocate should take great care in selecting the arbitrator.

Parties are entitled to an honest, intelligent, and experienced arbitrator who will hear their evidence, will find the facts fairly, and will make the ultimate decision based on evidence in the record and in harmony with the applicable law. But no party is entitled to a biased arbitrator. In fact, § 10(a)[2] of the FAA allows courts to vacate an award “[w]here there was evident partiality or corruption in the arbitrators.”[39] Interpreting that section, the Supreme Court has held that arbitrators “not only must be unbiased but also must avoid even the appearance of bias” and that the FAA does not “authorize litigants to submit their cases and controversies to arbitration boards that might reasonably be thought biased against one litigant and favorable to another.”[40]

The key qualities that parties typically want in an arbitrator include experience, knowledge, fairness, patience, diligence, open-mindedness, attentiveness, and an even temperament. A good arbitrator will control the hearing fairly but firmly, and will allow experienced advocates to try their cases with minimal interruptions and without unnecessary intrusions.

There are various ways to select an arbitrator. Occasionally, the arbitration agreement will name a specific person to serve in the role. Sometimes, the parties will be able to agree upon a particular arbitrator and will appoint that person directly. More often, however, the applicable rules of arbitration provide that an agency – FMCS or AAA in the case of a labor arbitration, for instance – will send the parties a list of a pre-determined number of potential arbitrators.[41] After researching the listed arbitrators, each party will rank the arbitrators in order of acceptability. Then, the parties’ representatives alternately strike one arbitrator and then another until only one arbitrator remains. The last arbitrator standing is the one who will decide the parties’ dispute.

Advocates who handle a significant number of arbitrations often know the pool of arbitrators from which they are likely to draw a panel.

If arbitration is not a significant part of your practice, you must be diligent in researching the potential arbitrators on your list. In conducting your research, other advocates will probably be your best source of information, and you can ask them about the potential arbitrators. You can find such practitioners through bar committees and business and industry organizations, among other places. You can also search the internet for any obvious conflicts of interest and arbitration databases for previous decisions rendered by the potential arbitrators.

Pre-Hearing Preparation

The extent of pre-hearing activities depends on the nature of the dispute you are arbitrating. For instance, while labor arbitration typically does not permit discovery or motions practice, rules applicable to employment arbitrations do.[42] In cases that allow discovery and motions practice, a good arbitrator will encourage the parties to agree to strict limits and will include such limits in a written scheduling order.

If discovery or motions practice is permitted by the rules applicable to your case, keep in mind that arbitration is designed to be quicker, cheaper, and more streamlined than litigation. With that in mind, limit your discovery requests to essentials, and only file a motion if it will dispose of the case in its entirety and if you are certain it will be granted. Otherwise, it will not be cost effective.

Before the hearing, the advocates should also try to agree on a written submission agreement, setting out the specific issue or issues the parties are asking the arbitrator to resolve. If the parties have difficulty formulating the wording of the submission agreement, they can ask the arbitrator to help with the drafting. If the parties reach an impasse and cannot agree on the submission agreement, they can leave it to the arbitrator to define the issues.

Advocates should also try to agree on the exhibits that will be offered at the hearing. A best practice is for the parties to agree on the exhibits, to mark them sequentially before the hearing, and to give the arbitrator a set of the marked exhibits – in a binder or on an electronic storage device – at the beginning of the hearing.

As you prepare for the hearing, determine what you need to show the arbitrator to establish your claim. Then, select your witnesses and exhibits with that in mind. Avoid unnecessary, irrelevant, and cumulative testimony and evidence. Present a straightforward and streamlined case. Arbitrators are people and respond to a compelling narrative; they also get bored and lose concentration when testimony drags on or rambles. So, keep your case moving.

Readying your witnesses is an essential part of preparing for the arbitration hearing. Such pre-hearing witness preparation helps speed things up by making testimony more succinct and relevant to the themes and theories of your case. When done properly, it encourages lay witnesses not to ramble, contradict themselves, or offer irrelevant details or opinions.

According to the Restatement of the Law Governing Lawyers, a lawyer may ethically coach witnesses if doing so does not induce false testimony. In preparing your witnesses, you should explain how their testimony fits into your theory of the case. You should also discuss the appearance and demeanor you expect of the witness while testifying and review the witness’s recollection and probable testimony. During that review, you can ethically reveal to your witnesses other testimony or evidence that will be presented, and you can ask your witnesses to reconsider their recollections or recounting of events in light of that other testimony or evidence. Witness preparation absolutely must include rehearsal of testimony on both direct examination and cross-examination. When preparing a witness, a lawyer may suggest the choice of words that might be employed to make the witness’s meaning clear.[43]

But, as anyone who has prepared a witness knows, the possibility of a story changing or being modified during or after coaching is not a theoretical exercise. It happens, and it can present ethical issues. There are very few reported cases exploring the ethical limits of witness coaching. This may be because coaching usually happens in private, with little chance that those involved will complain or spill the beans.

Although coaching your witnesses is essential to the efficient presentation of your case, you must obey Rule 3.4(b), which provides that “[a] lawyer shall not . . . counsel or assist a witness to testify falsely.”[44] Unfortunately, the rule fails to define a bright line between the permissible coaching of witnesses and unethical conduct. The courts have generally failed to remedy this deficit, often providing little more than tautologies such as “[a]n attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.”[45] One thing is certain, however: A lawyer who advises a witness to deny under oath a fact that the witness has acknowledged as true to the lawyer privately crosses the line and will result in severe disciplinary sanctions, including disbarment.[46]

In sum, before the hearing, you should:

• Gather your facts, identify your witnesses, and collect the relevant exhibits.

• Based on that evidence and the applicable law, you should determine your theory of the case and the themes you want to highlight.

• Prepare your witnesses carefully so that they know the roles they will play in painting the picture you want to put before the arbitrator.

• Coach your witnesses to speak in plain English and to provide factual details that will bring your case to life.

• Organize your witnesses and exhibits in a way that will develop your themes and theories in an engaging manner.

• Plan to present your case efficiently so that you focus the arbitrator’s attention and keep him or her engaged in your narrative.

The Hearing

At the outset, the parties must tell the arbitrator what they expect him or her to do and provide a submission agreement. The parties should also tell the arbitrator the kind of decision they expect the arbitrator to prepare. A standard award is similar to a jury verdict form in that it simply states who won and, if applicable, the amount awarded. For instance, the AAA Construction Arbitration Rules provide for a bare-bones award unless the parties specifically request differently.[47] If you fail to specify the type of award you expect, you may be in for a surprise.

Next, you will need to decide whether to make an opening statement. Although opinions vary, my advice as both a former advocate and as a current arbitrator is this: Never waive or reserve your opening statement. Generally, arbitrators want to hear your opening immediately so they have an idea of what to expect as the hearing proceeds. With labor arbitration, the arbitrator usually comes into the hearing without any foreknowledge of the dispute and thus needs some context for the evidence the parties will present. Jury behavior research shows the party that makes the first strong opening statement gains a distinct advantage.[48]

If your opponent presents a strong opening statement but you reserve until the presentation of your case in chief, the arbitrator might view the initial evidence exclusively through the lens your opponent provided in opening statement, and you could allow the other side to control the narrative throughout a key part of the hearing.

The main goals of an opening statement are to:

(1) Present your theme, bolstered by a clear picture of your evidence, including a brief description of the major events, actors, disputes, and contentions involved in the case;

(2) arouse the arbitrator’s interest in your case and in your theory; and

(3) show the arbitrator – if you go second – that there is another side to the story.

Here is a bullet list of my suggestions for making a good opening statement:

• Be lively, but don’t be too dramatic. Convey a sense of commitment and sincerity while avoiding impassioned pleas, emotional outbursts, or bombastic rants. There is little chance that such theatrics will help your cause before an arbitrator.

• Be prepared. Give your opening some thought. Don’t wing it, but understand you probably don’t need to write it down verbatim. You know your facts. Go with what you know. If you need notes, prepare a short keyword outline. If you do write out your opening, avoid reading it to the arbitrator.

• Be short and sweet. Get out the salient facts – the who, what, where, when, and why; tell the arbitrator what remedy you will request and then stop.

• Don’t ignore bad facts or weaknesses in your case. Address them directly in your opening. Don’t stick your head in the sand and pretend that there aren’t any. Bring out these little problems while putting your spin on them.

• Don’t over-state your case or over-promise what your evidence will show too aggressively. I say “too aggressively” advisedly because the jury behavior research suggests that taking some liberties with the evidence in opening statement can sway jurors to see evidence your way.49 In other words, spinning the evidence can work if done in a reasonable way.

• Don’t pander to, lecture, or patronize the arbitrator.

Several of these suggestions apply generally to all stages of arbitration advocacy. For instance, arbitrators are unlikely to be swayed by histrionics and are quite likely to respond negatively to pandering or similar behavior by an advocate.

Similarly, arbitrators are experienced experts and have likely heard many previous cases. Thus, they will appreciate a well-honed and highly efficient presentation of evidence that has a high yield of wheat kernels and little chaff. So, spend time on the front end reducing your evidence to the essentials that present your facts in an interesting and compelling way. You will reap rewards for such skilled advocacy.

Formal rules of evidence do not apply in arbitration hearings.[50] But this fact should not lull you into a false sense of security or cause you to become lazy. Courts developed evidentiary rules in order to ensure that evidence is reliable and probative of the truth. Thus, you should heed those principles even if – as is likely – the arbitrator will permit the introduction of hearsay and irrelevant evidence. There is a difference between admitting evidence and relying on it. An arbitrator will only rely on hearsay if the record contains other evidence that buttresses the hearsay statement’s reliability.[51] Moreover, the arbitrator will not rule for you if your case is based exclusively or even substantially on hearsay,[52] as hearsay declarations cannot be tested by cross-examination. If you must rely on hearsay, tell the arbitrator why the witness with direct knowledge of the facts is unavailable to testify and make sure that you introduce other reliable evidence that corroborates the hearsay.

Similarly, despite the fact that formal rules of evidence do not apply in arbitration, you may want to raise an objection from time to time. Although you should not pepper the record with objections, you may want to make well-placed objections if your opponent is relying too heavily on irrelevant evidence or hearsay testimony. These objections will highlight such deficiencies for the arbitrator.

At the conclusion of the evidence, you will need to decide whether to present a closing argument or to submit a brief. Although I have heard many arbitrators proclaim in seminars that briefs rarely influence their decisions, my experience in practice was inconsistent with such declarations. Writing a brief gives the advocate time to soak up the evidence and to mold that evidence into the most effective argument. On the other hand, if the facts and law are straightforward, a closing argument will get your client a final decision faster and with less expense. Ultimately, your decision about closings will depend on the circumstances of your case, what your opponent wants to do, and your skill set as an advocate – specifically whether you are better on paper or at a lectern. If the arbitrator asks for briefs, however, you would be well advised to comply with that request.

Conclusion

The key to effective arbitration advocacy is thorough preparation. Among other things, that means creating a clear, crisp record that contains all the evidence the arbitrator will need to adopt your theory of the case and to reject your opponent’s theory. It also means presenting your evidence in an efficient, imaginative, and compelling way that will focus the arbitrator’s attention on the facts necessary to decide the case in your client’s favor.

Stephen Douglas Bonney

 

 

 

 

 

 

 

 

Endnotes

1 Stephen Douglas Bonney is a labor and employment arbitrator with offices in Kansas City, Missouri, and Seattle, Washington. From 2008 until 2018, he was the legal director of the American Civil Liberties Union of Kansas (formerly the ACLU of Kansas & Western Missouri). Before that, he spent nearly 25 years in private practice as a labor and employment lawyer, primarily representing union clients. Overall, he has more than 30 years of experience in litigation and arbitration.

2 J. Nobel Braden, Recurring Problems in Grievance Arbitration in Preparing & Presenting Arbitration Cases: Selected Papers From The 1954 Conf. On Arb. & Lab. Rel. at 28 (Inst. of Indus. Rel., Univ. of Calif., Berkeley), available at http://digitalassets.lib.berkeley.edu/irle/ucb/text/ir000516.pdf (last checked 10/16/18).

3 Thomas E. Carbonneau, Arbitration and the U.S. Supreme Court: A Plea for Statutory Reform, 5 Ohio St. J. Disp. Resol. 231 (1990).

4 Thomas E. Carbonneau, The Reception of Arbitration in United States Law, 40 Me. L. Rev. 263, 266-68 (1988).

5 Frank D. Emerson, History of Arbitration Practice and Law, 19 Clev. St. L. Rev. 155, 161 (1970).

6 Katherine V. Stone, Rustic Justice: Community and Coercion under the Federal Arbitration Act, 77 N.C. L. Rev. 931, 985 (1999).

7 AT&T Mobility v. Concepcion, 563 U.S. 333, 339 (2011).

8 9 U.S.C. §§ 1-14.

9 Timothy J. Heinsz, The Revised Uniform Arbitration Act: Modernizing, Revising, and Clarifying Arbitration Law, 2001 J. Disp. Resol. 1 (2001).

10 Timothy J. Heinsz, Arbitration Law: Is There a RUAA in Missouri’s Future?, 57 J. Mo. B. 86, 90 (2001).

11 Sections 435.012 – 435.470, RSMo 2018.

12 Heinsz, 57 J. Mo. B. 86.

13 Section 32.200, RSMo 2018.

14 Section 34.058.3(4), RSMo 2018.

15 Section 50.032, RSMo 2018.

16 Section 226.095, RSMo 2018; see also Murray v. Mo. Highways & Transp. Comm’n, 37 S.W.3d 228 (Mo. banc 2001) (holding mandatory arbitration under § 226.095 is constitutional).

17 Section 226.096, RSMo 2018.

18 Section 290.250, RSMo 2018.

19 Section 290.350, RSMo 2018; see also State ex rel. Burke v. Cervantes, 423 S.W.2d 791 (Mo. 1968) (statute unconstitutional as to charter cities).

20 Wilco v. Swan, 346 U.S. 427, 435 (1953), overruled, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).

21 Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967).

22 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983).

23 Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 685 (2010).

24 Gilmer v. Interstate/Johnson Lane Corp.,  500 U.S. 20 (1991) (statutory employment claims, such as under the  Age Discrimination in Employment Act, are subject to arbitration ); AT&T Mobility v. Concepcion, 563 U.S. 333 (2011) (upholding consumer arbitration agreement that included a class action waiver).

25 200 S. Ct., L. Ed. 2d 889 (May 21, 2018).

26 Michael A. Wolff, Is There Life After Concepcion? State Courts, State Law, and the Mandate of Arbitration, 56 St. Louis U. L.J. 1269, 1275 (2012).

27 Justin Arnold, U.S. Supreme Court Reaffirms Favor for Arbitration, Mo. Bus. (June 12, 2018), available at https://mobizmagazine.com/2018/06/12/us-supreme-court-reaffirms-favor-for-arbitration/ (last checked Oct. 5, 2018).

28 Susan Landrum, Much Ado About Nothing?: What the Numbers Tell Us About How State Courts Apply the Unconscionability Doctrine to Arbitration Agreements, 97 Marq. L. Rev. 751 (2014).

29 Id. at 787. See also p. 788 for additional statistics on how Missouri’s appellate courts have treated arbitration agreements.

30 State ex rel. Pinkerton v. Fahnestock, 531 S.W.3d 36 (Mo. 2017), and State ex rel. Reg’l Convention & Sports Complex Auth. v. Burton, 533 S.W.3d 223 (Mo. 2017).

31 State ex rel. Newberry v. Jackson, No. SC96985 and 96986, 2019 WL 2181859 (May 21, 2019); Soars v. Easter Seals Midwest, SC97018, 563 S.W.3d 111 (Mo. banc 2018).

32 See Soars, 563 S.W.3d 111.

33 See Newberry, 2019 WL 2181859.

34 Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 233 (2013).

35 First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995).

36 John B. Lauritzen, The Preparation of Arbitration Cases, Preparing & Presenting Arbitration Cases: Selected Papers from the 1954 Conf. on Arb. & Lab. Rel. at 9 (Inst. of Indus. Rel., Univ. of Calif., Berkeley), available online at http://digitalassets.lib.berkeley.edu/irle/ucb/text/ir000516.pdf (last checked 10/16/18).

37 29 C.F.R. § 1404.7(C)7 (“Procedures for Arbitration Services”) and § 1404.16(D) (“Expedited Arbitration”); AAA Arbitration Rules and Mediation Procedures (Rules Amended and Effective November 1, 2009), available at adr.org/employment.

38 Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 578 (1960).

39 9 U.S.C. § 10

40 Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 150 (1968).

41 29 C.F.R. § 1404.11(b) (2019).; AAA Lab. Arb. R. 10, 11, & 12 (2013).

42 AAA Emp. Arb. R. 10 (2009).

43 Restatement (Third) of the Law Governing Lawyers, § 116, comment b.

44 Mo. S. Ct. R. 4-3.4(b).

45 Geders v U.S., 425 U.S. 80, 90 n.3 (1976).

46 In re Storment, 873 S.W.2d 227, 230 (Mo. banc 1994) (lawyer disbarred for advising client to deny his actions).

47 See, e.g., AAA Constr. Arb. R. & Med. Proc., Rule 47(b) (2015) (“The parties may request a specific form of award, including a reasoned opinion, an abbreviated opinion, findings of fact, or conclusions of law”).

48 T. Pyszczynski & L. Wrightsman, The Effects of Opening Statements on Mock Jurors’ Verdicts in a Simulated Criminal Trial, 11 J. of Applied Soc. Psychol. 301, 309 (1981). See also G. Wells, P. Miene, & L. Wrightsman, The Timing of the Defense Opening Statements: Don’t Wait Until the Evidence is In, 15 J. of Applied Soc. Psychol. 758, 769 (1985) (waiving or delaying opening statement disadvantages the litigant, but content of opening may be less important than timing).

49 T. Pyszczynski, J. Greenberg, D. Mack, & L. Wrightsman, Opening Statements in a Jury Trial: The Effect of Promising More than the Evidence Can Show, 11 J. of Applied Soc. Psychol. 434-444 (1981).

50 See, e.g., AAA Emp. Arb. R. and Med. Proc., Rule 30: “The arbitrator shall be the judge of the relevance and materiality of the evidence offered, and conformity to legal rules of evidence shall not be necessary”; JAMS Comprehensive Arb. Rules, Rule 22(d): “Strict conformity to the rules of evidence is not required, except that the Arbitrator shall apply applicable law relating to privileges and work product. . . . The Arbitrator may be guided in that determination by principles contained in the Federal Rules of Evidence or any other applicable rules of evidence” (2014); FINRA Code of Arb. Proc. – 10300, Rule 10323, Evidence: “The arbitrators shall determine the materiality and relevance of any evidence proffered and shall not be bound by rules governing the admissibility of evidence.”

51 Edgar A. Jones, Jr., Evidentiary Concepts in Labor Arbitration: Some Modern Variations of Ancient Legal Themes, 13 UCLA L. Rev. 1241, 1278 (1966) (“Unless corroborated by truth-tending circumstances in the environment in which it is uttered, [hearsay] is unreliable evidence and should be received with mounting skepticism of its probative value the more removed and filtered it appears to be”). See also Bamberger’s, 59 Lab. Arb. Rep. (BNA) 879, 882 (Glushien, 1972) (“Some kinds of hearsay no doubt are more compelling than others and carry a certain degree of probability. But in all or substantially all cases which the arbitrator can envisage, there must be apart from the hearsay a core of competent, reliable and credible evidence which the hearsay corroborates.”).

52 See, e.g., Pipe Coupling Manufactures, Inc., 68-1 Lab. Arb. Awards (CCH) 8088 (McDermott, 1967) (suspension of employee rescinded where no evidence other than hearsay advanced; vagueness and inconclusiveness of such evidence requires that it be supported by other evidence).