A couple of years ago I defended a broker-dealer in an arbitration that lasted 44 days in which multiple claimants argued that my client failed to stop one of its brokers from running a ponzi scheme.  Not only were we faced with difficult facts, but we also had an arbitrator who took an active role in the case itself by offering his “opinions” and taking over examinations.

I knew I had an issue when, in the first week of the arbitration, the arbitrator questioned out loud, during a break in front of one of the witnesses that I was presenting, how he found it amazing that my client did not immediately conclude that what happened was a fraud.  In another instance, he suggested that the two brokerages defending themselves simply pay two thirds of what the claimants wanted; the claimants ultimately asked for in excess of $15 million.

Not to be outdone by his unsolicited and improper opinions, the arbitrator frequently took over witness examinations, as opposed to asking limited follow-up at the end of the examination like every other arbitrator I have ever had would do.  As a result of his “examinations”, this arbitration lasted much longer than it should have because we frequently covered the same ground multiple times.

So what can you do when faced with an “advocate arbitrator”.  For one, you cannot let it rile you, and especially never let anyone see that it has riled you.  As the commercial used to go, “Never let them see you sweat”.  The most important thing that I did after this conduct appeared to be a constant was to make a record and not be afraid to call the arbitrator out for his conduct.

When the arbitrator made off the record comments regarding the evidence, I began to remind him that his obligation as an arbitrator required him to have an open mind and not to judge the evidence until the end of the trial.  During the hearing when he interrupted my examinations, I respectfully asked that he refrain from interrupting me and reserve his questions as my examination would likely cover what he wanted to know. 

This approach was not without risk; it could have angered the arbitrator toward my client.  In the end, however, the interruptions and unsolicited remarks eased a bit and the other two arbitrators tried to keep the third in check.  Most important from my client’s perspective, the arbitrator remembered what his role really was and, in the end, fairly judged the evidence as the award was a far, far cry from what the claimants wanted.  I thought the result was a vindication for our client and proof that you can respectfully stand up against an advocate arbitrator and come out on top.