‘My Cousin Vinny’ in Arbitration? (Part III: the arbitration hearing)

Everyone loved “The Godfather” and “Godfather II” — both won Oscars for goodness’ sake! But not so much “Godfather III” — for me, it was an old and grey Michael Corleone, who had long-since abandoned the superbad, slicked back “I think I’ll kill you” hairdo of his diabolical days. Nonetheless, I am striding boldly forward to present part III of “My Cousin Vinny in Arbitration?” The arbitration gods cry out for me to do so. The cross-examination at trial by Vinny — which is the heart of the movie — provides some valuable information when studied in the arbitration context.

This is Vinny’s first cross, and that fact, combined with Vinny’s hilarious miscues leading up to the trial, leave everyone salivating for more hi-jinks. But Vinny surprises us all — his cross-examination turns out to be his finest hour.

Vinny’s first witness is a loveable grandmother, who claims to have seen the defendants running out of the convenience store where the clerk has been shot. Vinny asks grandma how her very thick, Coke-bottle glasses are working — she answers, “I think they’re OK.” Vinny then inquires whether she can identify the two people who were running out of the convenience store just after the shooting, and she says — having seen them from about 100 feet away — that she thinks they were the two defendants sitting at the defense table. Vinny turns, walks to the back of the courtroom, a mere 50 feet aways, holds up two fingers, and asks Grandma how many fingers she sees. “Four,” she replies. Still holding up two fingers, Vinny then walks forward so that Grandma can see clearly the number of fingers. When Vinny asks her to explain, she says “I’m thinkin’ of gettin’ thicker glasses.” So much for one eyewitness.

Vinny’s next cross-examines an eyewitness who said he was just starting to cook grits for breakfast when he saw the defendants’ car pull up to the convenience store. Five minutes later, he finished cooking the grits and looked up to see the defendants running out of the store to their car. Vinny asks the witness if he uses instant grits, to which the witness sternly replies, “no self-respecting Southerner uses instant grits.” Vinny then asks how the grits cook could have seen the defendants running out of the store just five minutes after entering when it takes “the entire grit eating world” 20 minutes to properly cook his grits. The cook cannot answer the question. Another eyewitness down the drain.

Finally, Vinny takes on the state’s formidable (but it turns out, honest) forensic expert with regard to automobiles. On direct, the expert testifies that the rubber marks which had been made in the parking lot were made by the type of tire found on defendants’ car. A spur-of-the-moment expert witness (which could never happen in a real trial, but this is show biz) — none other than Vinny’s fiancé, who had grown up as a mechanic — testifies that the suspension of defendants’ car, a Buick Skylark, could not have made the pattern of tire tracks in issue, and that the tires on the Skylark also were factory issued on one other type of Buick very similar to, but different than, defendants’ car. Honesty gets the best of the forensic expert, and he haltingly admits that Vinny’s fiancé was correct.

These three cross examinations leave the government’s case high and dry. The prosecutor knows it and asks the judge to dismiss the murder charges against Vinny’s nephew and friend. Yet another deliriously happy ending in Hollywood.

Over the years, trial lawyers have been almost universal in their praise of Vinny’s instinctive cross-examination skills. Certainly, they have been a positive influence on many cross-examinations at trials. They also transfer well to the arbitration arena. However, trial lawyers who find themselves only occasionally in arbitration can sometimes forget the value of the lessons that emanate from Vinny’s technique.

A few friendly suggestions. One that should be obvious — appreciate who the arbitrators are. Something they are not — jurors, even though their role certainly includes factual analysis that that will form part of the final award. Being treated as jurors will create, putting it mildly, awkward moments. In a truly over-the-top but real-life example, counsel began his opening statement by announcing that since the arbitrators would be finders of fact, he was going to treat them as a sitting jury, and immediately reaffirmed that approach by introducing his opening to “ladies and gentlemen of the jury.” (BTW, there were no women on the panel.) Despite the panel’s clear explanation that they were not sitting as jurors, counsel brazenly forged ahead, raising constant trial objections to the admission of evidence, and even a few motions in limine during the hearing — just as an aggressive advocate might do in a jury trial. Predictably, all motions in limine were denied and all evidentiary objections rejected, with the frequently repeated explanation that defects in the evidence would only impact the weight accorded to the evidence, not its admissibility. Unfortunately, to the dismay of the arbitrators and everyone else, counsel’s jury-type tactics disrupted and extended the hearing considerably. The lesson? At the hearing, treat arbitrators as highly experienced practitioners of the art of recognizing and analyzing relevant facts and legal principles while disregarding irrelevant facts and flawed legal concepts.

Another thing. Resist the temptation to make procedural arguments based upon federal or state case rules. This is a “pet peeve” of many arbitrators, and it happens far more often than one might think. The procedures which govern arbitrations emanate from the party’s own agreement, which typically specifies that the case will be conducted in accordance with the rules of some arbitral institution (such as the AAA, ICDR or ICC). This means that the parties have chosen these procedures to govern the hearing in lieu of the Federal Rules of Civil Procedure or the California Code of Civil Procedure. Where the agreement doesn’t specify institutional arbitration rules, the arbitration will be governed by the arbitration statutes of the state where the arbitration is venued. Most states, including California, have special arbitration acts that provide all the guidance needed to effectively administer an arbitration proceeding. But in no case does state arbitration law provide that legal procedure for state or federal courts will apply to the arbitration.

One would also be wise to bear in mind, in the words of an esteemed colleague, the three unassailable rules of an arbitration hearing: “1. credibility; 2. credibility; and 3. credibility.” In a prior column, I pointed out that an advocate’s credibility will be tested by the arbitrator from the beginning of the arbitration until the very end. The most important period in this chronology will be the arbitration hearing. The arbitrators will not be fooled by misrepresentations of fact or law, and if they are unsure about something, they will most certainly test it for veracity through their own questioning. A loss of credibility can carry serious consequences. At the hearing, the arbitrators will be looking for an advocate whom they can trust to help guide them through unchartered waters that ultimately will have to be understood in order to fairly decide the case. You want to be that person. If, heaven forbid, your credibility is lost (which can happen with what may seem like a very small matter), any hopes of becoming the fountain of truth will vaporize. Worse, if your credibility disappears it will leave an opening for your opposition to gain the position, making your chances of winning the case more of an uphill

One also cannot underestimate the great value which arbitrators place on effective cross-examination. So bringing your “A game” to the table to shows the arbitrators that you are a competent examiner. Don’t be taken in too much by the seeming informality of being in a conference room rather than a courtroom — it is serious business that you are about to engage in. A probably more-than-you-think number of advocates in arbitration believe that the best cross-examination is to undermine every point that the witness has made in direct testimony. What do arbitrators think of this technique? In the words of another eminent colleague: “when counsel says that he has 30 more documents to review with a witness before finishing cross, the only thing that comes to mind is ‘when is the next break?’” And there is a penalty to pay. A no-stone-unturned cross-examination tends to cement the witness’ direct testimony, which essentially will have been repeated in the cross, in the arbitrators’ minds. Worse, such an examination style risks the arbitrator believing that the counsel may not really know what he is doing — other than grasping at straws to shore up a weak case.

It is important to realize that in arbitration — as opposed to litigation — the arbitrators will likely have read carefully, before the hearing even starts, all of the parties’ submissions, any witness statements provided, relevant key document in the case, and even portions of any witness deposition that has been submitted. In large part, this is why arbitrators react badly to cross-examinations which scour the earth to get the witness to contradict himself or herself in some way. In the minds of good arbitrators, the purpose of cross-examination is essentially to “flummox” the witness, by raising a limited number of new points that the witness either has not heard of, or has not considered carefully enough, but which together raise a legitimate question as to whether the witness has been truthful in direct testimony. Some questions arguably may be somewhat collateral but still have an impact if the witness is unable to provide an answer. A favorite true-life example of this occurred in a dispute between an owner and a contractor concerning charges for delays in construction, which allegedly had been caused by the irrational extra-contractual demands of the owner — who had a reputation of harassing contractors in order to get more services for less money. One portion of the cross of the owner went something like this:

Q. Now Ms. Witness, you are the owner of the property that is being developed by my client, is that right?

A. Yes, I am.

Q. And your business is to develop or remodel houses in various parts of the country as a business venture, correct?

A. Yes, that is what I do.

Q. Do you happen to know contractor Defendant?

A. I do. In fact, he was the contractor on another housing project I developed.

Q. On that project, did you receive complaints from that contractor about refusing to pay for delays and extra work the contractor had performed?

A. There were a lot of such complaints, but I did not think they were justified.

Q. And did you prepare a list for that contractor as you did in this case of the claims he made that you thought were not proper?

A. Yes, I did.

Q. And was that list prepared before or after he committed suicide?

A final cross-examination tactic sure to draw a negative response from the arbitrators is the “gotcha” technique. Here, the cross-examiner’s approach is to browbeat the witness with endless, often repetitive, questions relating to some issue, in the hope of squeezing an admission from the witness that will tear the entire opposition’s case apart. Sometimes the “gotcha” technique works — the witness is finally forced into some kind of an admission. However, in arbitration, such an admission, in and of itself, will almost never will be sufficient to turn the case inexorably in favor of the cross-examining party. The arbitrators are not looking for “gotcha” moments to decide the case. To the contrary, their approach will be to try and fit every piece of evidence, pro and con, into an arbitration picture that will be complete and clearly show an analysis of all the facts and where they fit in. The “gotcha” moment may be a piece of that puzzle, but it will not replace other relevant material. Also, arbitrators just don’t like seeing counsel trying to beat up a witness, no matter how relevant the questioning. When they do, they likely will step in and caution the cross-examiner on examination style, not just to ensure civility, but also to avoid the witness being forced to make an admission under duress. Not a good vibe to create.

Back to our hero. Vinny’s cross-examination technique still stands as a paragon of effective cross-examination in any dispute. It checks all the boxes. His cross is succinct, always respectful — sometimes to the point of being complimentary — and puts to the witness questions never put by the prosecutor, but all sufficiently serious to achieve a royal “flummoxing” of two supposed eyewitnesses and a damning admission by the prosecutor’s highly qualified forensic expert. Let Vinny’s example, as it has been for a generation, be a lesson for us all.

I would be remiss if I left this three-part column, without giving thanks to the information received from a handful of the most eminent arbitrators I know, both in California and around the country. Their practical insights, which were integrated into all of “My Cousin Vinny in Arbitration?” columns, collectively offer some world-class guidelines for all advocates arbitration. At the end of Vinny’s trial, with all charges dismissed, the judge (Fred Gwynne, alias Herman Munster) takes Vinny aside, and in a stentorian voice proclaims, “sir, you may have some very unconventional methods, but you are one hell of a trial lawyer.” An arbitration advocate could not hope for more. 

Fred Bennett is an experienced international and domestic arbitrator and mediator. He is a fellow with the College of Commercial Arbitrators, member of the National Academy of Distinguished Neutrals and the ICC Commission, and former head of arbitration at Quinn Emanuel and Gibson Dunn.