Originally from:

AAA Handbook on Arbitration Practice - Second Edition

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CHAPTER 7

TELLING THE STORY: INTEGRATING
WITNESSES, EXPERTS, AND DOCUMENTS INTO A
COHESIVE NARRATIVE IN ARBITRATION

Evan Slavitt

I. Introduction

At the heart of every dispute are at least two competing narratives. By
the end of the hearing, the factfinder—whether jury, judge, or arbitrator—
must decide which is more convincing. Many counsel, however, seem to
think that just because they are presenting a case to an arbitration panel
rather than a jury, they can dispense with the task of shaping the case into a
coherent story. As a result, the arbitrators are left with lengthy testimony
and notebooks full of exhibits that have to be pieced together. Instead of
evaluating the conflicting stories, the arbitrators become the storytellers to
the detriment of the process and the parties.

This problem is particularly acute in business cases for which
credibility is at issue. Each side presents well-spoken witnesses who are
prepared, coherent, and reasonably convincing on their own.
Nonetheless, the witnesses profoundly disagree on critical events—
conversations, meetings, etc.—in a way that cannot be reconciled as
mere defects in recollection or narration. The panel must decide whom to
believe, but, without the context of a coherent narrative, the panel has no
touchstone to differentiate truth from fiction.

This article will describe some techniques for counsel to create a
narrative that not only flows from the witnesses, experts and documents,
but integrates them into a persuasive whole.1