Opening StatementS - deweypub.com

1 Chapter 8 Opening StatementS63 Chapter 8 Opening StatementSThe beginning is the most important part of the OverviewAfter disposing of preliminary matters, the arbitrator traditionally asks whether advocates wish to make an Opening statement. Opening StatementS mark the formal beginning of the arbitration hearing. I cannot stress the importance of an effective Opening statement. At no other time during the hearing are arbitrators more interested in learning the nature of the dispute, the central facts, the contractual and legal provisions at issue, and advocates theories of the case.

2 This is your opportunity to tell your story directly to the arbitrator, not second-hand through witness testimony and exhibits. The Opening statement is the roadmap that will guide the arbitrator to the destination of your choosing. An effective, persuasive Opening statement will assure the arbitrator that he or she can rely on your representations. A poorly executed Opening statement will place your professionalism and client s case at risk. This chapter describes techniques for developing powerful, persuasive Opening StatementS . I discuss the advantages and disadvantages of making a statement and procedures and elements of effective Opening StatementS .

3 You will also find discussions on how to organize, prepare and present a powerful Opening statement. Best practices and pitfalls to avoid are also . Opening Statement prOCedureSa. the arbitratOr S general ruleArbitrators enjoy wide discretion in whether and when to allow parties to make an Opening statement. Opening StatementS are not guaranteed in the collective bargaining agreement or protected by statute. Arbitrators often set limits on their scope and length. Because they are so critical to your success, I recommend that you research the preferences of your selected arbitrator on this subject prior to the hearing.

4 Arrangements for Opening arguments would be a good topic to discuss at a prehearing conference with the arbitrator. See Chapter 3 for guidance on selecting an StatementS are customarily given before evidence is introduced into the record. The party with the burden of proof will present its Opening statement first. The opposing party may either make its Opening statement immediately after or wait (reserve) until the party with the burden of proof has presented its case. If an arbitrator wants to understand both sides of a dispute early in the hearing, he or she may ask both parties to make their Opening StatementS before any evidence is offered into the arbitrator may entertain a request to change the order in which Opening StatementS are presented.

5 For example, an arbitrator might require the agency s advocate to give his or her Opening statement first in a contract case in which the grievant has been allowed to represent himself and is inexperienced with the arbitration process. Of course, the agency s advocate could object to the unusual arbitrations, often jurisdictional disputes, involve more than two parties. Advocates determine the order in which Opening StatementS will be made before the hearing, with the assistance of the arbitrator, if needed. The party with the most to gain as a direct result of the grievance may open first, followed by the party who bears primary liability.

6 Intervening, or third parties, will give their Opening StatementS last. Let us assume a third party, Union B, has intervened between Union A and the agency. At the hearing, Union A will open first, followed by Union B, and then followed by the agency. The agency may be afforded the opportunity to reserve Opening until after Unions A and B have presented their never waive yOur Opening StatementParties are not required to make an Opening statement, unless directed by the arbitrator. Never waive your right to make an Opening statement. Remember that the arbitrator is probably the least informed person on the intricacies of the issue at hand at the beginning of the hearing.

7 Without the structured argument of an Opening statement, the arbitrator will not know why you are offering your witnesses and exhibits into the record or making evidentiary objections. A decision to waive Opening remarks is a decision to keep the arbitrator from learning your position at the outset of the hearing and allows your opponent to define the dispute and resolution for the advantageS Of the reSpOnding party tO reServe On Opening StatementIf you are the responding party, there are three reasons why you may wait to make your Opening statement until your opponent has presented his or her case.

8 First, you may not want to inadvertently reveal anything the opposition can use to support its theory of the case. Second, you may feel the opposing advocate has not presented sufficient evidence to establish his or her claim and move that the arbitrator dismiss the opponent s case because the facts described in the Opening statement and the law or contract do not establish a basis for relief. If the motion is denied, you will be prepared to make your Opening statement and proceed with your case. Third, in rare situations in which you expect the opposition s case to take weeks to complete, reservation of your Opening statement will refresh the arbitrator s memory of your theory of the revealing information useful to the OppositionAdvocates may erroneously believe that their Opening statement may reveal some bombshell evidence that their opponent is unaware of, 64labOr arbitratiOn praCtiCe fOr the federal SeCtOrespecially if they have the burden of proof and are Opening first.

9 In almost all cases, the bombshell is already known to the opponent, and the advocate has missed a valuable opportunity to present a convincing, persuasive outline of his or her if information contained in an Opening statement has a bombshell effect, the opposition has options. The opposition may object to the new evidence based on prejudicial surprise and ask the arbitrator to exclude it. Or, the arbitrator may postpone the hearing so that the opposition has a reasonable opportunity to respond to the new information. In either situation, the advocate who waives the opportunity to make an Opening statement for fear of revealing new, explosive information to the opposition has basically planted a bomb in his or her case.

10 The bombshell theory presupposes that your opponent has not adequately prepared his or her who reserve their Opening for fear of revealing valuable information to the opposition may overestimate the value of surprise evidence. In most cases, the parties have vetted the issues during the grievance process prior to the hearing. Moreover, reasonable prehearing preparation will likely expose most new arguments and evidence. Indeed, assuming that your opponent has not adequately prepared his or her case for everything you intend on throwing at him or her violates one of the cardinal rules of case preparation: assume your opposition knows everything you know about the facts, the contract, and the law.