Los Angeles personal injury attorney, Barry P. Goldberg, is recognized as the “go to” expert on all things Uninsured and Underinsured Motorist. In fact, other lawyers frequently contact him on questions about securing the arbitration in the first place. However, very little thought is paid to actually maximizing the opportunities of the arbitration itself. This article suggests some very practical steps that should be taken at the outset to ensure that the arbitration lives up to its purpose—to provide a prompt and reasonable alternative to regular or standard litigation.
I cannot take full credit for the following suggestions. Believe it or not, these rules and guidelines were first proposed to me by insurance counsel. After researching the proposal (I was very suspicious), I realized that they made perfect sense and would actually provide a unique benefit to claimants’ counsel. On the other hand, insurance counsel liked the rules because it made the arbitration itself very predictable. It would be crystal clear what evidence would be presented and when it would be disclosed (insurance counsel hate surprises!) In fact, without an agreement in place, no two arbitrations are the same. Some arbitrators follow rules of evidence and require pre-arbitration disclosures and some do not. Many arbitrators will let all evidence in and they temper that ruling with the phrase “it will go to the weight” of the evidence. This is neither organized nor fair.
Accordingly, I always recommend that the first letter to opposing counsel secure an agreement that that the proceedings will be governed by Code of Civil Procedure §1282, Insurance Code §11580.2 and California Rules of Court, Rule 3.823. Acceptance of these rules by both parties will provide for an orderly and predictable sequence up to and including the arbitration. If the request does not meet with immediate traction, perhaps a conference call with the arbitrator to obtain an agreement to use these rules is in order. With these rules, you can schedule everything you need to do for the arbitration just like you were going to a trial.
For example, Code of Civil Procedure § 1282.2(a)(2)(A) permits either party to demand in writing that the other party provide a list of witnesses it intends to call designating which witnesses will be called as experts and a list of documents it intends to introduce at the hearing. The demand shall be served within 15 days of receipt of the notice of hearing. If an insured plans to utilize this process, I recommend serving the notice of hearing on behalf of the arbitrator.
Remember, the disclosure obligation is bilateral and the responses shall be served either in person or by certified mail within 15 days after the demand. This means that the actual arbitration witnesses and evidence potentially must be in place as early as 30 days after the arbitration date is initially set. The listed documents shall also be made reasonably available for inspection prior to the hearing. I recommend attaching the actual documents to the response. Although Code of Civil Procedure § 1282.2 (a)(2)(E) allows the arbitrator to hear witnesses or receive evidence not listed in the response if he so chooses it is best to carefully list the witnesses and evidence you actually intend to use at the arbitration to eliminate the risk that witnesses and evidence could be excluded. Also, it demonstrates a level of preparation and confidence, and will make the arbitrator’s job that much easier.
It is my opinion that California Rules of Court, Rule 3.823, is a must. Rule 3.823 (b)(1) allows introduction of written reports and other documents without foundation. In most cases, this will allow the parties to “make their case” without a significant expense. With some limited conditions, an arbitrator must receive these documents into evidence, including expert reports, medical records and bills, documentary loss of income, property damage repair bills and estimates, police reports and similar documents. The proponent must deliver these documents to the opposing party at least 20 days before the hearing. The opposing party has the right to subpoena the author or custodian of the document and conduct a cross-examination.
Rule 3.823 (b)(2) also allows a party to introduce witness statements at the arbitration in lieu of a live appearance if they are made under penalty of perjury and have been delivered to the opposing party within 20 days before the hearing. Because of the “penalty of perjury” requirement, counsel should work with the witnesses early on and not rely on a mere letter or handwritten statement that may or may not be signed under penalty of perjury.
Although the opposing party may demand within 10 days that the witness appear in person, such a demand could actually “backfire” because the witness may be more motivated seeing that the opposing party will not accept his or her statement. In addition, the arbitrator may not appreciate the opposing party’s insistence on inconveniencing witnesses and wasting valuable arbitration time for supporting testimony that is essentially undisputed.
Finally, Rule 3.823 (b)(3) allows the use of a deposition transcript without the need to show that the deponent is “unavailable as a witness,” as long as the proponent provides 20 days’ notice of his intention to offer the deposition into evidence. Such notice should be provided for every deposition transcript. In the unlikely case that the deponent fails to appear at the hearing for some reason, it may still be possible to obtain a favorable arbitration award.
Once again, after receiving notice that a deposition transcript will be used, the opposing party has the option to subpoena the deponent in order to cross-examine him or her in person at the arbitration. Once again, the arbitrator may not appreciate the opposing party’s insistence on inconveniencing witnesses and wasting valuable arbitration time for deposition testimony that is essentially undisputed and can be refuted by offering other portions of the deposition in rebuttal.
If counsel make the appropriate agreement at the outset, the Uninsured/Underinsured Motorist arbitration will live up to its potential—providing a prompt and inexpensive resolution of a claim with an insured’s own insurance company.