Originally from:

AAA Handbook on Arbitration Practice - Second Edition

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CHAPTER 12

DUE DILIGENCE IN ARBITRATOR SELECTION:
USING INTERVIEWS AND WRITTEN
“VOIR DIRE”

Jeffrey P. Aiken

I. Introduction

Trial lawyers have helped create a cottage industry of jury
consultants who, for considerable fees, assist them in identifying jurors
who have either an inherent bias1 against certain matters or a leaning in
favor of others. “Voir dire” is the name of the process of questioning
prospective jurors to determine if they should be disqualified either for
bias or for another reason using one of counsel’s peremptory challenges.2
The objective of voir dire is to select jurors who are most inclined to find
in favor of one’s client and eliminate those who are predisposed to
finding against the client.

If lawyers could engage in this process to select the judge hearing the
case, they would. The good news is that they can engage in a kind of voir
dire before selecting the arbitrators and they should. Judge Richard
Posner has observed that judges sometimes make decisions based not on
legalistic methods, but on other factors: