Civil litigation is at a virtual standstill. Courts are closed, except for emergencies, and those are largely limited to criminal cases. Trials, and especially jury trials, are out of the question in civil cases for the foreseeable future.
Waiting for the courts to re-open means more delays as already overworked judges and their clerks will face a longer than usual backlog. But clients need their cases resolved NOW and, by the way, with the financial crunch that is hitting everyone, attorney fees need to be reduced substantially.
Whether you are the general counsel of a large company, the CEO, CFO or owner of a medium or small company that does not have an in-house legal staff, or outside litigation counsel, there is an effective option to bring legal disputes to resolution faster than is possible in courts, and especially in the age of COVID-19.
Expedited arbitration procedures available under the commercial rules of the American Arbitration Association (and most other arbitration service providers) offer a flexible, faster and lower-cost alternative to litigation. It is not for everyone and every case, but many business disputes – especially where counsels are willing and able to cooperate in the selection of an arbitrator and on procedural issues, such as limitations on discovery, briefing schedules and the need for a hearing – are particularly suited to expedited arbitration for several reasons. Among them are the ability to:
- Choose a qualified arbitrator with experience and credentials tailored to the nature of your dispute either by agreement, based on your own knowledge and research, or by selecting one from a list provided by the American Arbitration Association that includes a listing of each arbitrator’s professional experience;
- Agree that there will be no discovery, or discovery that is limited to only that which is essential to a fair resolution of the dispute, such as a limited document production based on agreed categories of documents, with no depositions;
- If depositions are absolutely necessary, agree on who will be deposed, when and where the depositions will take place, including via video conference, and limit each deposition to two or three hours, with a cumulative limit of six hours of depositions per side;
- Agree on the timing and sequence of written submissions, as well as page limitations on briefs, in order to expedite getting the case to decision and reducing the amount of time the arbitrator will need to review the submitted materials;
- Utilize the “desk-only” arbitration option, which means there will not be a hearing. The arbitrator will make a decision based solely on the briefs and exhibits submitted by the parties;
- If a hearing is necessary, agree that it will be conducted by video conference and limited, for example, to one day with each side having a maximum of three hours to present its evidence.
- Finally, agree to allow the decision of the arbitrator to be final and binding without any right to appeal to an arbitration panel. If you have selected a qualified arbitrator with the experience and credentials suited to your client’s dispute, an appeal not only creates additional expense and delay in reaching a final resolution, the arbitrator’s decision is unlikely to be reversed.
Expedited arbitration gives litigators and their clients far more control over the process, as well as the time and expense required to resolve business disputes. Not only will attorney fees and expenses be reduced, but you have the ability to select an arbitrator with experience, as a lawyer or as a judge, handling the type of substantive business, financial and accounting issues that will arise in the case.
There are cases that call for the full range of discovery and motion practice, as well as jury trials, available only in the state and federal courts. However, at times such as these, when access to the courts is severely limited, business owners and officers, as well as in-house counsels, will save time and money by getting their disputes resolved efficiently; at the same time, outside counsel will build better and stronger relationships with clients by demonstrating a commitment to serving the client’s business goals in an efficient and cost-effective manner.
Robert L. Rothman is a partner in the litigation department of Arnall Golden Gregory LLP and Past Chair of the American Bar Association’s Section of Litigation. He serves on the national commercial arbitration panel of the American Arbitration Association.