In Pennsylvania, civil cases with a value of $50,000 or less are referred to compulsory arbitration. In Philadelphia alone, more than 20,000 cases are resolved annually through the program. When you add Allegheny County, and the 65 other counties to the tally, you can quickly discover how many matters end at this stage, without trial.

Yet many lawyers often take arbitration hearings for granted, preparing far less for a hearing than they should. After all, this is their client's day in court, and if successful, their clients could receive a substantial award or be absolved of any fault for the underlying matter, which are for the most part personal injury cases.

Having litigated countless arbitrations, and sat as an arbitrator numerous times, I have seen the good, the bad and the disgraceful from counsel. In this column, I will highlight some best practices that will help attorneys assure the best results for their clients:

Be Prepared

In the words of Tom Lehrer in his irreverent song, "Be Prepared!," "Don't be nervous, don't be flustered, don't be scared. Be prepared!" This seems obvious, because competence under Pa.R.P.C. 1.1 requires attorneys to have "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Yet lawyers are often under-prepared.

At times, when arbitrators deliberate, we comment about how well counsel prepared or how a lawyer seemed unaware of the issues and arguments that were presented at the hearing. While surprises can happen, in most cases, particularly arbitration-level ones, surprises should be rare. Yet all too often, lawyers and litigants act as though they had no idea that they were going to have to speak to or testify before the three-attorney arbitration panel.

Preparation involves multiple items, and if you cannot remember what you need, then prepare a pre-arbitration checklist so you will not forget.

First, counsel must determine what exhibits will be used at the hearing (more about the substance later). In most cases, the rules require counsel to notify opposing counsel of what exhibits will be used at the hearing. Do it. Arbitrators do not want to get involved in petty disputes focusing on when, or if, counsel provided the required exhibits to his opposition. Such arguments only distract the panel from the merits of the case.

Second, counsel must determine who will testify at the hearing. Generally, the plaintiffs will testify, as will most defendants or, as occurs more frequently on the defense side, designees of the defendants, such as a property manager in a slip and fall. You must prepare every witness, which means more than meeting them 15 minutes before the hearing and advising them to "tell the truth."

Witness preparation involves having a witness review any prior statements or deposition testimony they have given. Parties should also review any discovery answers and pleadings they prepared or verified. Provide these documents, photos, and other items days or weeks before the hearing, so the witness may review them, verify that the information provided is accurate, and be prepared for questions or cross-examination about their substance. And while it goes without saying, the lawyer handling the arbitration should also be familiar with these documents.

Third, counsel should evaluate what legal issues are likely to arise. Every panelist is not aware of every possible legal issue. I have worked with arbitrators whose focus may include tax law or bankruptcy and have no concept of what limited and full tort are, or how they matter in a motor vehicle case involving soft tissue injuries. In addition, do not assume that your panel will understand subtle but important issues, such as notice in a premises liability case. I recently sat on a panel where one member believed that notice of a defect, in this case rainwater in an office lobby, was sufficient even though the property owner was unaware of and would not have reasonably known about the dangerous condition absent notice.

In each of these instances, lawyers should have prepared a concise memorandum of law for the panel summarizing any applicable statutes and the relevant case law. The key there is "concise." Panel members, for example, do not want to read a 10-page dissertation on the concept of notice when a two-page memo will accomplish that goal.

Your Exhibit Package Matters—It's Not a Footnote

Imagine opening a dictionary that was only organized by the first letter, not alphabetically, and it was up to you to search through pages and pages just to locate the word whose definition you needed. Most readers would throw up their hands and move on.

Or, imagine being presented with 75 pages of medical records, with the assumption that you will be able to discover the "important information." You would likely either give up or potentially miss the "important information" and focus on other data that is not as helpful.

Yet a day does not go by when an attorney uses this "Go Fish" method to organize arbitration exhibits in a personal injury case, presenting the panel with a massive pile of records, and a cover page listing the names of the providers whose records are included—and nothing else.

Arbitrators are not mind readers. Many have never handled a personal injury case and would have to devote hours to locating the records that a litigant believes are critical to proving his client's claim or disproving the opponent's claim. Yet, for some reason, counsel frequently provide arbitration panels with a stack of documents and the hope that the members will locate the "important information."

There is an easy solution. First, list and separate each provider's records, using tabs or some other separator. Second, make sure the cover page not only lists the names of the providers but also summarizes the key takeaways from the materials. Finally, if a record or page is critically important to your client's position, then highlight it or do something that will force the members of the panel to see what you want them to see, not what they happen to stumble upon.

Lastly, if there are financial records, or certain amounts are admissible, summarize them on the cover page of your exhibits, and try to work out an agreement with opposing counsel before the hearing. Not surprisingly, panelists do not need to be privy to the back and forth discussions about who received what, what liens are at issue, etc. That work should have been done well before the day of the arbitration.

Bring Enough Copies

Imagine having dinner with five friends, and only having one menu. Yet counsel frequently do not have sufficient copies of exhibits for the witness, the panel and counsel. When this occurs, everyone must crowd around the exhibit like it is the last remaining vestige of an ancient civilization that cannot be duplicated.

To avoid this situation, make enough copies for the panel (generally two is adequate), opposing counsel and the witness so that testimony about an exhibit is not similar to crowding around a campfire in the cold.

Be Candid

Being candid and forthright is often more important in an arbitration than in a jury or bench trial. Arbitrators are generally dispassionate and not easily susceptible to irrelevant facts, overly-emotional appeals or deception. Those types of appeals generally backfire and reduce the chances your client will win. While dramatics may have a place in a jury trial, they are likely to be less success in an arbitration.

This does not mean that you ignore bad facts or create meritless issues. Rather, strive to present the case accurately, while conceding or addressing squarely any weaknesses or limitations in your case.

Focus on the Weight of Evidence, Not Admissibility

While the Rules of Civil Procedure apply, arbitrations are far less formal than a trial, and your focus should be on the weight of evidence, not admissibility. As a result, panels generally hear all or virtually all evidence, and then decide what weight to give it during deliberations, what has been called the "for what it's worth" value. This gives the parties and counsel more comfort and removes at least basis for a party to seek a new arbitration if the result is unfavorable.

Many attorneys do not recognize the importance of the "for what it's worth" doctrine. They care more about the witness' honesty and the bases for his opinion than they do about whether a particular statement is admissible. Similarly, disputes about admissibility of a business record whose authenticity is undisputed are not productive.

Don't make that type of meaningless objection. Focus on the weight the panel should give to the  evidence.

Limit Objections

All parties to a Common Pleas statutory arbitration have the right to appeal, the proceedings are rarely transcribed. Plus, the hearing is less formal than a trial. Consequently, using the arbitration as an opportunity to demonstrate your encyclopedic knowledge of the Rules of Evidence will not generally help your case. All it will do is slow down the hearing and generate lots of rolling eyes from your panel. Objections should therefore be limited to situations when they are necessary. Avoid making minor objections that will have  no benefit to your client or legal position.

In short, at arbitration, introduce evidence that matters. It's about the weight of that evidence, not its admissibility.

In summary, arbitrations are significantly different from jury and bench trials, and lawyers should prepare differently for these hearings. While preparation is critical for both, so too is knowing your audience, and preparing accordingly.

Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel, is a litigator whose practice includes providing ethical and techno-ethical guidance and Disciplinary Board representation for attorneys and law firms; he is the editor of "Fee Agreements in Pennsylvania" (6^th Edition) and author of "Leaving a Law Practice: Practical and Ethical Issues for Lawyers and Law Firms" (Second Edition), published by the Pennsylvania Bar Institute. He can be reached at [email protected].