Advocate Criticizing an Arbitrator During a Pending Case - What are your thoughts?

| 12 Comments

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Have you ever heard of an advocate leaving an arbitrator a voice mail message criticizing his/her interim rulings and proclaiming that he/she is not a good arbitrator? What should the arbitrator do? Should the arbitrator withdraw from the case?

Please provide your thoughts/comments below.

12 Comments

I have had one experience where an attorney was unhappy with rulings I made against his client regarding discovery disclosures and he went on a tirade (during a status conference call---not in a private voice mail or email) and made various assorted accusations and threats. I opted to tell him that I would ignore his comments, not reply, and move on. That proved to have a "cool-down" effect.

I do not think the arbitrator in the above hypothetical should think of withdrawing, for one second. The anger by counsel is part of the dynamics of the process.

I have not had this occur . I would refer the matter to the case manager. As arbitrators, we cannot engage directly with the parties. If his counsel was not copied on the email, I would probably ask the case manager to forward a copy to the complaining party's counsel. While serving as a district judge, I did receive a post verdict letter from the defendant who felt compelled to further defend his investment advice. I did respond to that letter informing the defendant the jury ruled correctly.

The Arbitrator should admonish all counsel, again to refrain from ex parte communication with the Arbitrator. That may be done in an e-mail message, sent to all counsel by the Arbitrator or through the Case Administrator. The Admonition should not mention the voicemail message. The Case Administrator should be provided with the recording or a transcript of the recording, for informational purposes. If there is a three-person panel, the other two members should be informed also; and in that case the admonition should come from the panel chair.

Whether the Arbitrator should withdraw depends on whether he or she believes it will influence the decision-making process. If so, or if there is any reasonable chance of it, then withdrawal is appropriate, but not otherwise.

Thankfully, this has not happened to me or to any member of a panel on which I have served.

Have never had this happen. I don’t believe that this type of ex parte criticism should lead an arbitrator to withdraw. Otherwise, disgruntled counsel, having suffered a significant setback, can wipe the slate by registering his disagreement in this inappropriate manner. The arbitrator should schedule a telephone conference so that all parties are made aware of the communication and offending counsel should be advised that no further ex parte communication with the arbitrator should be attempted.

First, discuss this with a colleague, therapist and/or the case administrator. This will give you perspective and calm you down. Every advocate who receives an unfavorable interim (or final) ruling is likely to question the arbitrator's abilities, either internally or "out loud." Counsel is venting; this should not be taken personally

Given that the ex parte communication is wrong, the case administrator must be contacted. Likely the opposing party will be told of the message, and the arbitrator will need to determine whether he/she can remain unbiased. The opposing party may need to decide whether to request recusal of the arbitrator.

A strong, self-confident arbitrator should be able to move past this indiscretion, convince all involved that he/she has done so, and move forward.

The Arbitrator should admonish all counsel, again to refrain from ex parte communication with the Arbitrator. That may be done in an e-mail message, sent to all counsel by the Arbitrator or through the Case Administrator. The Admonition should not mention the voicemail message. The Case Administrator should be provided with the recording or a transcript of the recording, for informational purposes. If there is a three-person panel, the other two members should be informed also; and in that case the admonition should come from the panel chair.

Whether the Arbitrator should withdraw depends on whether he or she believes it will influence the decision-making process. If so, or if there is any reasonable chance of it, then withdrawal is appropriate, but not otherwise.

Thankfully, this has not happened to me or to any member of a panel on which I have served.

The Arbitrator in this case should report the incident to the Case Manager/Administrator and forward them a copy of the message received from the complaining attorney.

Also, I would have a conference call with both advocates and inform them both that no further ex-parte communications will be allowed from either side.

Regarding whether the Arbitrator should withdraw from the case, I think it depends on the Arbitrator. If the Arbitrator feels that he/she can still be neutral in deciding the case, they should not withdraw. However, if the opposite is true, then withdrawal is necessary.

Fortunately, I have not had any such communications (but perhaps I haven’t conducted enough arbitrations or counsel have restrained themselves). As you are asking about an arbitration, there is of course a prohibition on ex parte communications. Therefore, unless I felt there was merit to the complaint (which I would undoubtedly have read or heard before realizing the contents), I would not do anything to encourage such communications as a means of obtaining recusals—-that is, I would not withdraw because that might become known and result in future such communications from parties who simply don’t like my rulings. However, if after I have reviewed the communication, I felt that I acted improperly but could not remedy the situation by some future conduct or comments at a joint session or otherwise going forward, I would withdraw and subsequently communicate my apologies or explanation to the attorney who complained.

If I remain in the case after such ex parte complaint, I would undoubtedly remind all parties to communicate only through the case manager if that is the way the matter is being handled and in, any event, to send no ex parte communications. In many arbitrations, I discuss with the parties and whether there should be direct email submissions and written communications to me with copies to all parties, or only through the case manager, and there have been occasions on which the procedure has changed one way or the other as the arbitration progressed..

The Arbitrator in this case should report the incident to the Case Manager/Administrator and forward them a copy of the message received from the complaining attorney.

Also, I would have a conference call with both advocates and inform them both that no further ex-parte communications will be allowed from either side.

Regarding whether the Arbitrator should withdraw from the case, I think it depends on the Arbitrator. If the Arbitrator feels that he/she can still be neutral in deciding the case, they should not withdraw. However, if the opposite is true, then withdrawal is necessary.

I have not had the experience (but may be that is because I don’t receive enough arbitrations or counsel exercises restraint). As there cannot be ex parte communications in an arbitration, I would not want to withdraw from the arbitration due to an improper communication from one party, because if word ‘got out” that I did, it might encourage parties who don’t like my decisions or prior communications in the arbitration to use ex parte communications as a way to obtain recusal. However, if I thought that I made a mistake in conduct that could not be remedied by my conduct going forward in the case, or by what I might say to all parties at a future conference, I might consider withdrawal followed by an apology to the complaining party. In any event, if I remain in the case, I would remind counsel—or have the Case Manager remind the offender—that ex parte communications are prohibited and might result in sanctions for a violation going forward.

At the outset of many arbitrations at the first telephone status conference, I discuss with the Case Manager and the parties’ counsel whether papers and communications should all be through the Case Manager or can be direct with copies to the other parties and Case Manager. In certain instances, I know that the arbitrator’s email address is not even given, but I like the parties to know that I am available on short notice to entertain any application or conference that might resolve an issue expeditiously so that there is no unnecessary delay. On occasion as the matter proceeds, I have changed the communications and filing procedure. I recommend that arbitrators communicate with the Case Manager before the first telephone management conference about the form of communications because he or she may have a preference that could be of impact and/or might have a recommendation based on experience with a party or counsel in a prior case.

I repeated my answer because I was anonymous on my first response—May 14, 1:12 pm Sorry for any confusion.
Ed Stern

This is inappropriate conduct by the attorney. If the attorney thinks the arbitrator missed the boat, file for reconsideration. The attorney should never contact an arbitrator ex-parte. By attacking the arbitrator, the attorney is trying to create a conflict so that the arbitrator has to withdraw. This is dangerous "venue shopping" and would never happen with a judge in court. The arbitrator should not step down unless s/he thinks s/he could no longer be impartial.

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This page contains a single entry by Jeffrey Zaino published on May 13, 2022 11:25 AM.

Placement of Arbitrator Fee Rates on Resume - What are your thoughts? was the previous entry in this blog.

Right to Challenge a Party Appointed Arbitrator - What are your thoughts? is the next entry in this blog.

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