Chess Clock: A Time-Management Technique For Complex Cases, The

Dispute Resolution Journal, May-Jul 2006 by Appel, Mark E

Company lawyers are increasingly concerned about the cost of resolving complex transnational disputes. Law departments are measuring the cycle time of individual cases to ascertain the value of a growing number of conflict management strategies.

Many in the arbitration community have expressed concern about the desire of some parties to have arbitration mirror common law litigation practices. If the parties want nothing more than a private trial by dedicated expert arbitrators, that is their prerogative, but that is not arbitration.

Arbitration should be a far more expeditious process and civil law practitioners and lawyers familiar with arbitration know that. It should be no surprise that arbitrators, with the encouragement of arbitral institutions, are experimenting with new approaches to time management in complex arbitrations.1 This article focuses on time management in general, and the practical use and possible pitfalls of one of these techniques-the chess clock.2

What is the Chess Clock?

The chess clock is essentially an agreement to allocate a specific amount of time to each party during the arbitration hearing. The parties agree on the time limits with the arbitral tribunal, and these limits are then memorialized in a procedural order.3 In theory, a party that has exhausted its allotted time would be time-barred from continuing its presentation unless it is granted additional time from the arbitral tribunal. Actual experience suggests that this rarely happens.

Practical Considerations

The chess clock only works if the parties accurately assess how much time they will need to present their evidence and arguments at the hearing. In order to make this assessment, all aspects of the parties' presentation should be figured into their allocated time. Because efficiency is an important goal of arbitration, the tribunal should discuss with the parties' counsel ways in which to reduce their allotted time. For example, the tribunal should ask them to limit repetitive testimony and eliminate irrelevant argument and evidence. The arbitrators also should carefully question counsel about the need for particular witnesses, as well as the method of taking argument and evidence. Cumulative testimony should be eliminated altogether. Should that not be feasible, such testimony should be presented in writing. The parties' arguments and direct evidence also can be taken in writing, which is routine in international proceedings. Direct witnesses can then be examined via cross-examination, re-direct and re-cross.

If the parties' pre-hearing memoranda contain sufficient briefing about the case, the arbitrators may consider eliminating opening statements. This will also reduce the amount of time counsel will need to make their presentations at the hearing.

After this discussion has taken place, the attorneys should estimate how much time each will need to introduce witness statements; examine witnesses on direct examination (if necessary), cross-examination, redirect- and re-cross-; make a site visit (if necessary); and present their closing arguments. Extra time should be added for the tribunal to question the parties' witnesses and address procedural matters during the hearing. Although arbitrators report differences on this issue, it would seem inappropriate to allocate the time the tribunal takes for its questions to only one party.

The parties may agree to split the time equally, but that need not be the case. The tribunal should listen carefully as each party articulates how much time it will need at the hearing and then guide the parties to an agreement. If oral arguments are scheduled, the fairest allocation is an equal amount of time for both parties.

Finally, the tribunal should reserve the right to expand the time for either or both parties. However, arbitrators should use this authority with extreme caution, as changes will be viewed in the intense light of the evidentiary hearing.4

The tribunal can help keep the process on track by behaving efficiently and encouraging efficient behavior in counsel and witnesses. Arbitrators should not waste time asking unnecessary questions. In addition, they should admonish the occasional rambling witness to please try to answer the questions as directly as possible. And they should routinely thank counsel and witnesses for their bonafide efforts to focus the case.

Keeping Time

Timekeeping is an issue that must be addressed. Sometimes a member of the tribunal undertakes this task. But a better choice might be to have timekeeping managed by a member of each party's legal team. The timekeeper should announce the time used up at the close of each day's presentations of evidence and both sides should sign off on that. If a party has an objection to the timekeeper's announcement, the tribunal should resolve the issue. Each day, the tribunal should start the proceeding with a reminder to the parties and counsel as to the remaining time each side has to present its case or conduct cross-, redirect-, or re-cross-examination.