Entertaining arbitrators: Scripting a successful arbitration story - Part 1
By deploying storytelling methods, subrogation professionals can lay out their evidence in a memorable and powerful way.
Who knew right? You mean you are actually suggesting that the arbitrator hearing my subrogation (intercompany) arbitration case wants me to regale and fascinate them with the story of how my insured was broadsided in their car early in the morning going to Costco. Empirically and anecdotally we say … “yes.”
We know that intercompany arbitration cases for subrogation disputes differ when one thinks about traditional arbitration and how parties customarily present their case before an arbitrator. The vast majority of intercompany arbitration hearings provide no “live” hearing for the parties’ argument. Rather, written contentions are offered to the arbitrator accompanied by supporting evidence attached electronically. For you as the subrogation advocate (and to think about it), lacking the opportunity to even meet the arbitrator hearing your case places a premium on your ability to engage and immerse them through “the written word.”
How does one do that?
Offering an interesting narrative from start to finish that keeps the arbitrator absorbed in your story relies on three things you control. One is the very structure of the contentions themselves. The second is the language and persuasive prose you use. Finally, there is the clear direction you give them to the evidence that supports the outcome you seek. A foundation for the persuasiveness an advocate wants to maintain needs to exist in both the visceral appeal of the case you offer and in the writing style you use.
The concepts of theory and theme are as much a part of the subrogation arbitration professional’s toolbox as any trial lawyer in front of a jury. The intuitive attraction for the case from the very first words you write (or type) sets the imagery you want the arbiter to maintain throughout the life of the hearing. Let’s recall that theme speaks to the moral force of a case. For an auto subrogation matter, we would present how our insured was negligently impacted by the wrongdoer resulting in financial loss. To move forward with this theme we will be more image-oriented to paint the proverbial picture in the arbitrator’s mind. The very first words we present set the tone and instill the theme. An example:
On the morning of August 15, 2020, our insured, James Jenkins, was headed to Costco when his 2017 Nissan Sentra was broadsided at the corner of Ramirez Boulevard and Jefferson Drive in Scottsdale, Ariz. The impact was so severe it sent his vehicle off the roadway landing on the shopping center’s grassy median. The crash was violent enough that reaction time was negligible and resulted in a $ 7,289 loss including collision repair, loss of use, towing, rental, etc.
Immediately, I can picture a Costco store in the morning. I can see an intersection leading into the lot and people scurrying about perhaps running a quick errand before work. I visualize a grassy median where the Nissan Sentra landed. As an arbitrator, tell me to go look at photos you have included as evidence, and I’m beginning to see the scope of what happened and how severe this collision was.
Let’s contrast this example to a rather routine sample often seen in intercompany arbitration cases: This loss happened on 8-15-20 in Scottsdale, Ariz. The applicant incurred damages in the amount of $ 7,289 as the result of an auto accident.
A couple of things about storytelling as we compare the two examples. First, I told the arbitrator the name of my insured. Why? I want them to know this is a person (not the applicant). Second, every time the arbitrator sees the name “James Jenkins” in the evidence; they’ll know that’s my insured. Third, I intend to quote Jenkins from his recorded statement in my case. Let him help me tell his story. It is direct evidence and amongst the most routine types of proof in subrogation arbitration cases. Lastly, I painted the narrative to begin the “script” of the story I want the arbitrator to follow. My job now is to keep them engaged as I move to my theory of the loss.
Let’s talk theory
At its essence, the theory is the blueprint for the case and why one is pursuing the remedy sought in arbitration. A theory needs to be simple and must be clearly communicated to the arbitrator. If your theory is that the adverse insured was speeding and ignored traffic signals, causing them to broadside your insured at the intersection, you must make sure the arbitrator knows that. In other words, do not assume the arbitrator will recognize it. A theory in arbitration is relatively simple; it is logical and most importantly, it is credible. An advocate is attempting to show the “correctness” of their theory before the decision-maker.
By conveying your theory early in the case, the arbitrator is attuned to be looking for the supporting evidence that substantiates what you’ve just stated rather than waiting until the end of the hearing to review all of the proofs accompanying the file. Arbitrators do not evaluate facts in isolation. They make sense of each new piece of information and fit it into a rolling hypothesis about the claim. Each new fact you present and each new piece of evidence you offer takes its place in this ever-evolving, ever-developing hypothesis. This is why storytelling is so important. It keeps the arbitrator engaged in your narrative as they fit your pieces of the story into their hypothesis that was all started by your theme and transitioned to your theory.
Editor’s Note: This is Part 1 of a two-part series. Part 2 will discuss the importance of tying evidence to conclusions and offers suggestions for successful storytelling in the arbitration process.
Kevin Pike (KPike@Subroclaims.com) is arbitration manager for the national recovery firm Subroclaims, Inc. His background encompasses 34 years in arbitration and the dispute resolution field.
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