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Disrespectful or Non-compliant Counsel

Friday, February 07, 2025 9:32 AM | Anonymous

Disrespectful Employees? 10 Tips That ...

How should an arbitrator handle a disrespectful or non-compliant counsel?

What are your thoughts?

Comments

  • Sunday, February 09, 2025 12:54 AM | Gary Benton
    That guy in the photo is begging for a heart attack. I suppose the right answer is to respond with a professional tone, maintain composure, remind counsel to maintain a respectful demeanor, and if needed issue appropriate orders and sanctions. But really I'd just stare at the guy firmly until he realizes he needs to get a life. .
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    • Sunday, February 09, 2025 1:57 AM | MICHAEL ORFIELD
      I might make a comment on the spot if the bad behavior was quick and short lived. I would not embarrass the attorney in front of her/his counsel, just try to lower the overall temperature in the room. However, if this had occurred more than once or if the behavior was flagrant, I would take a break and ask to speak to all counsel privately, sans clients. I would direct my comments to the offending attorney and get assurance that this behavior was one and done. I would then make it very clear should such behavior resurface that sanctions would be considered.
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      • Sunday, February 09, 2025 2:54 PM | Dave
        This is the approach in a couple of instances I have taken and it has always worked.
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    • Sunday, February 09, 2025 9:44 AM | Raoul Drapeau
      I had a case once when the respondent had brought in an outside counsel. He was a legend in his own mind and made sure everyone knew his importance. He didn't get as excited as the man in the photo, but his antics were not well received. He was so aggravating to others that I had to take a break once to let things settle down. I do think that such antics don't help that side's case, but responding in kind isn't helpful either.
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    • Sunday, February 09, 2025 12:11 PM | Steve Yusem
      courtroom attire for all hearings; stenographic transcript, as few counsel want their rants recorded; fee shifting
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  • Sunday, February 09, 2025 4:56 AM | Marc Labgold
    It is a difficult situation and solutions in international arbitration tend to be more limited. One of the most effective ways of handling this situation that I have seen was to remind counsel that the their limited currency is their credibility and that such behaviour does not annure to their benefit.
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    • Wednesday, February 26, 2025 12:06 PM | Jeremy M. Goodman
      I always try to set clear ground rules and hold people accountable to those ground rules . . . but I absolutely love Mr. Labgold's note that counsel's currency is their credibility and that such behaviour does not inure to their benefit.
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  • Sunday, February 09, 2025 6:56 AM | Anonymous
    An arbitrator should first establish clear ground rules at the preliminary conference about expected professional conduct and potential consequences for violations, while documenting these expectations in the first procedural order. When faced with disruptive or disrespectful behavior, the arbitrator should address it immediately but professionally, using a progressive approach that starts with gentle reminders and escalates to formal warnings and potential sanctions only if the behavior persists. Throughout the process, the arbitrator must maintain absolute impartiality, document all incidents and interventions meticulously, and ensure that any disciplinary measures are proportional to the misconduct and well-reasoned in the final award.
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    • Sunday, February 09, 2025 12:30 PM | Igor Ellyn
      I agree with this comment but I would stay away from "punishing" bad lawyer behavior in the final award unless it is over-the-top egregious and has impacted on the length of the arbitration. In my arbitral experience, nearly all cousel recognize the value of treating the arbitrator and opposing counsel respectfully and keeping their tone measured.
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  • Sunday, February 09, 2025 7:06 AM | Anonymous
    I recently had this experience and chose to ignore his behavior for the most part and repeatedly give a general reminder for civility. The attorney was overly aggressive and did not read the rules. Unfortunately the case manager did not bill in full and I was unaware despite my reminders to her. When things did not go his way he refused to pay the remaining balance of arbitrator compensation. So my question to all is now what do you do? In true character he's ignored all her calls. It's been 4 months.
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  • Sunday, February 09, 2025 8:38 AM | Hon. Deanne M. Wilson (ret.)
    In front of clients and other counsel, treat him/her as though you did not notice the problem. Then take him/her aside and remind him/her of the Code of Professional Conduct, tell him/her that you know he/she is totally wrapped up in the case, but that he/she is hurting the client's position because the conduct is so out of line that it is difficult to concentrate on what is being said and that the net time there is non-compliance, you will correct in front of the others and consider sanctions, if the adversary suggests. But at all times, maintain a professional manner. Do not sink to his /her level lest you appear biased, etc. Discuss with your administrator.
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    • Sunday, February 09, 2025 10:05 AM | B. J. Krintzman
      Are you seriously suggesting an ex parte communication??? This seems like absolutely the wrong thing to do.
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      • Sunday, February 09, 2025 3:13 PM | Steven Skulnik
        Of course the arbitrator cannot take any counsel or party aside and have an ex parte conversation. I would do the opposite of what Ms. Wilson seems to suggest. In front of clients and other counsel, remind the offending lawyer of the Rules of Professional Conduct, and tell them that the conduct is out of line, remind counsel of the tribunal's authority to impose sanctions, etc.
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  • Sunday, February 09, 2025 8:51 AM | Hon. Roberts Kengis
    I am a former judge, and dealt with disrespectful and non-compliant counsel relatively frequently. If their behavior justified it I would warn them about potential contempt consequences. But my "go to" line was to politely tell them that their behavior is not helping them or their client, and they should perhaps consider this in their behavior. As an arbitrator and mediator I haven't yet had to deal with this situation, but I would use a similar method. If it got really bad I would tell them that I may have to file a grievance with the state bar if their behavior violates the rules of professional responsibility.
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    • Sunday, February 09, 2025 9:23 AM | James Smith
      I agree with Judge Kengis. It was easier (and more effective) on the bench to let lawyers know that their conduct was inappropriate. In-person hearings with lawyers allow body language and facial expression to communicate a lot. I'd often read the nasty email Lawyer A sent to Lawyer B and note,
      "That just isn't effective or productive."
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  • Sunday, February 09, 2025 8:52 AM | Francis Xavier
    Let me share some brief thoughts on the ‘disrespectful’ part.
    It would indeed be rare for counsel to be disrespectful toward the tribunal. Personally have not encountered such a situation. If that does happen, counsel would have taken up the sport of skating on thin ice. In such a situation, guess the key would be for the tribunal to remain calm and composed at all times. The tribunal would need to address the offending counsel in an even-handed, neutral and perhaps conciliatory tone.
    Agree too that a counsel only caucus could be helpful to try and get to the bottom of that particular counsel’s concern.
    If such attempts do not help, one has to stay calm and soldier on. It would be key to remain independent and just towards the party in question despite the provocation from counsel.
    It is more common for counsel to be disrespectful toward the opposing party or counsel.
    During a hearing in the Indian sub-continent (where I sat as sole arbitrator), counsel started rudely shouting at each other during a heated debate on a contested point. I had no option but to interrupt them both and proceeded to share my perspective of the debate and what assistance I required from both counsel. Fortunately the reframing diverted the debate away from a thorny point and the situation was defused.
    In a situation where counsel lose their cool at each other, it becomes important for the tribunal to step in and restore order. If a reframing exercise does not work, some other strategies to employ could include:
    1 a immediate recess for counsel to regain their composure;and/or
    2 a counsel only caucus to knock sense into both counsel.
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    • Sunday, February 09, 2025 9:29 AM | Mark Kantor
      Sometimes, the offending counsel is trying to provoke a response from the arbitrator to leverage as a basis to seek vacatur in a reviewing court. First, if I find myself coming angry I take a time out to calm myself. I try to never lose my temper before counsel or parties.

      Second, I make all my remarks on the record so that the case manager at the institution and, if necessary, can see the entire interaction not counsel's one-sided recollection.

      Third, I do not make remarks about the impact on the client, because that can too easily be reinterpreted as bias if I rule against that party. I do tell counsel to consult with the client privately. But if counsel is doing this because they think their client is going to lose, that does not change matters.

      Lastly, I use costs awards when authorized by law or the rules.
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      • Sunday, February 09, 2025 12:32 PM | Mark Kantor
        Also, threatening to report, or actually reporting, counsel to the Bar is a great way to get your award challenged for bias.
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        • Sunday, February 09, 2025 1:31 PM | Peter Rundle
          Exactly; do not allow yourself to be triggered emotionally. Remain calm and even-tempered. Use humor and time-outs as appropriate to de-escalate. Setting professional expectations early in the process - before anyone has an opportunity to test the boundaries - is helpful. Never lose your temper.
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        • Sunday, February 09, 2025 3:15 PM | Anonymous
          The arbitrator's duty of confidentiality is in tension with his right/duty to report unprofessional conduct to the Bar's disciplinary authority.
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  • Sunday, February 09, 2025 9:30 AM | David E. Robbins
    Incivility is prohibited in court as it should be in arbitration. At the preliminary hearing, the Chair should make clear what the "ground rules" will be for the arbitration, including the substantive hearing. She/He should remind parties that the arbitrators have the authority to sanction a party for such conduct, including preclusion of evidence, monetary sanctions and drawing adverse inference. Incivility often reflects attorney who have little respect for the process.
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  • Sunday, February 09, 2025 9:41 AM | Peter Benner
    I have an ongoing case in which the counsel several times have exchanged scathing and accusatory emails of each other. Each time I reinforce that advocacy of this sort is counterproductive to the interests of their client. Still, it has been repeated, suh that I don't know how much my admonitions have helped. If that occurred during a hearing, I would not take one counsel aside, since that would be ex parte, though I would have a counsel-only conversation to try to steer the behavior toward more civility and professionalism and invite them to let their clients know that the request is coming from me.
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    • Sunday, February 09, 2025 10:12 AM | Michael S. Jordan retired judge
      I agree with the many comments above. No two situations are identical. The neutral must always remain objective and show no bias in responding to a breach of civility. Never speak to the offender alone. Speak privately the first time with all counsel. If one party is self represented, the neutral must speak in the presence of all. Remind everyone that all persons coming to the forum have agreed to the rules of professional conduct and a breach of that conduct by showing a lack of civility may compel every lawyer to report such conduct to the state disciplinary agency. In Illinois, reporting to the ARDC is mandatory if there is a breach of ethics. Maintain a calm voice and the louder a lawyer gets, the lower your voice should be. If the conduct persists, take a recess and the audience disappears and hopefully the bad performance ends.
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  • Sunday, February 09, 2025 9:59 AM | Nasri H Barakat
    My first reaction is that this kind of behavior is rare, at least in my experience as arbitrator for the past thirty years. I did have one instance where I was the sole arbitrator and one of the attorneys was very disrespectful of his counter part. He used unacceptable language while personally attacking the other parties' witnesses and attorneys. I gave the parties a break and had a talk with the attorney. I told him that such behavior would not be tolerated at the hearing. I reminded him that the issues being debated were business issues and that there is no space for using any argument for personal attacks on the other party or its counsel. The rest of the hearing went well as the attorney followed my admonitions. Even when issues are contentious I have not had an attorney being disrespectful of me or any institution! perhaps I was lucky!
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  • Sunday, February 09, 2025 10:45 AM | John D Feerick
    One thought I have is to declare a break and call both counsel into a room and share with them Rule 3.5 of the ABA Model Rules of Professional Conduct, entitled "Impartiality and Decorum of the tribunal," reminding them of what a lawyer should not do with respect to conduct disrupting a tribunal. I would also point them to the comments to Rule 3.5 and to Rule 1.0 and the definition of "Tribunal."
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  • Sunday, February 09, 2025 11:17 AM | Anonymous
    I experienced an abrasive, contemptuous attorney in an arbitration and no matter what tactic I used (including most of those cited), that attorney persisted. I did the following: (1) constantly reminded myself to not impute that attorney's behavior to the client; (2) made every effort to remain focused on the facts and applicable law; (3) never threatened sanctions (but certainly reviewed the Rules and arb clause to see if they were permissible); (4) made many statements during hearings to the effect that I understood and appreciated the passion and zealous advocacy of all counsel but that there were boundaries to not cross (but not stating what they were); (5) realized that the attorney may have been setting the whole thing up for a vacatur as a tactic (even assuming I was being recorded without permission); and (6) most importantly, realized and accepted that there are just some leopards who can't change their spots.
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  • Sunday, February 09, 2025 11:23 AM | Anon
    I had this happen to me; counsel was I think mentally ill and accused me of conspiring with the opposing counsel. He would filibuster with irrelevant topics, missed 3-4 conferences and then lashed out when I expressed unhappiness. He had no respect for AAA or me, was openly hostile and rude. In the end I wrote a long, careful opinion with significant fee shifting for every minute that was wasted to his intransigence. The opinion made crystal clear two his clients that he did them a disservice and that I could not sanction him personally so they were paying for his behavior. I laid out in great detail the ethical rules that he violated. The rules give us wide latitude to assess costs and fees. Honestly in this case I felt he could have been disbarred for his behavior.
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  • Sunday, February 09, 2025 12:04 PM | Anonymous
    Stay focused, and remember that the rules are your friend.

    In most cases, a collective friendly reminder will bring the temperature down a bit. However, when it does not, perhaps it is best to ignore as much as possible the bad behavior and to (re)assert control over the proceeding by the powers granted to the arbitrator to issue scheduling rulings, discovery rulings, evidentiary rulings, etc.

    If counsel is misbehaving during a preliminary conference, require the parties to submit their positions in writing, and issue a ruling on the motion/objection. If counsel is misbehaving during the hearing, ask counsel whether their comments are intended as an evidentiary objection and then sustain or overrule the objection. Obviously, it is important to put counsel’s behavior aside and issue rulings based on the substance of the position (and make sure the reasoning is appropriately documented).

    Reframing counsel’s bad behavior into established procedural mechanisms usually makes counsel realize that bluster and disruption will not be productive, and, if nothing else, permits the arbitrator to respond to the misbehavior through rulings that enable the case to move forward.
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    • Sunday, February 09, 2025 1:08 PM | Kyle-Beth Hilfer
      Well said and allows the arbitrator to create a neutral paper trail of his/her reasoning that demonstrates lack of bias.
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  • Sunday, February 09, 2025 12:14 PM | Judge Gene F. Cohn (Ret.)
    If the arbitrator anticipates discourteous or non-compliant counsel the best deterrent for such behavior is making certain all interaction is on the record. No action or interaction should be left unsaid or unrecorded. Appeals of arbitration awards generally fall on unsympathetic ears when the record of the case demonstrates the losing party behaved poorly.
    Judge Gene D. Cohen (Ret.)
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  • Sunday, February 09, 2025 12:17 PM | Anonymous
    Humor with the message of respect needed for progress
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  • Sunday, February 09, 2025 12:20 PM | GENE D COHEN
    f the arbitrator anticipates discourteous or non-compliant counsel the best deterrent for such behavior is making certain all interaction is on the record. No action or interaction should be left unsaid or unrecorded. Appeals of arbitration awards generally fall on unsympathetic ears when the record of the case demonstrates the losing party behaved poorly.
    Judge Gene D. Cohen (Ret.)
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  • Sunday, February 09, 2025 12:34 PM | Mark Bunim
    I have had a situation where counsel was particularly irked by a pre-hearing ruling I had made and was determined to provoke me so, I believe, he could claim bias if the outcome was not precisely in accordance with his liking. The goal is to remain calm and remind counsel (on the record) that we are here (at the hearing) to listen to the facts and weigh the law and achieve a just result for both sides and that it is necessary to take a deep breath and focus on the proceeding and leave emotional grievances in another room. It is a very difficult and uncomfortable situation, indeed.
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    • Sunday, February 09, 2025 3:42 PM | Dan Deuprey
      Agree with most of the comments, particularly those which emphasize that the arbitrator must remain calm and collected at all times and not respond "in kind." Actually, the most frequent problems of this type come up in pro per cases, of which I have had many. Ususally it is enough to remind the party that during a hearing they need to conduct themselves as if they were in a regular court in front of a judge.
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      • Sunday, February 09, 2025 3:44 PM | Dan Deuprey
        Apologies for the misspelling of "usually"
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  • Sunday, February 09, 2025 4:09 PM | Michael Radbill
    I would stop the hearing to take a break. Then, I would ask both counsel to meet me in a room separate from the hearing. I would address the behavior issue(s) to the offending counsel in an attempt to cool the temperature. If that effort did not achieve desired results, I would recess the hearing to a later date and then bring the issue to the AAA for assistance.
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  • Sunday, February 09, 2025 5:15 PM | Mark F. Brancato
    Such conduct should never be tolerated. If it occurs, the arbitrator should confer as quickly as possible with counsel for the parties, during which the arbitrator should (1) issue a stern warning that such conduct is unacceptable, (2) warn that the next occurrence will result in the application of sanctions if requested under Rule 60 of the Commercial Rules or, as the case may be, Rule 61 of the Construction Industry Rules, and (3) warn that the arbitrator reserves the right to unilaterally impose such sanctions or take such other action as the circumstances warrant under his/her power to control the conduct or counsel before him/her (as and to the same extent that judges have such power at common law). The arbitrator should issue an Order incorporating the foregoing.
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    • Sunday, February 09, 2025 6:31 PM | Philip W. "Whit" Engle
      All these comments are good, sensible ones. The only thing I might add is to ask counsel: "Are you OK?" when confronted by an outburst. It's a caring question and could be disarming. Especially true if the conduct exhibited seems one-off, or out of character for the particular lawyer. You never know what's going on in their world (nor need to know) but they could be having a very difficult time of things right then. The asking of the question may be enough to cause them to reflect on their behavior, and adjust. If not, then taking a break and having a lawyer's only meeting, or other of the suggestions above, may be in order. But at least its on the record that you cared enough to ask.
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  • Sunday, February 09, 2025 9:50 PM | Sheila J Carpenter
    Thank you everyone for your thoughtful comments. I rarely have anyone overtly disrespectful to me. It’s more common, particularly in pro se cases, for a party or counsel to be disrespectful to their opponents and/or interrupt them and pay no attention to the Rules and my procedural orders. I remind them that they are to address all remarks to me and not to the other side, that I am here to listen to both sides for as long as they have something new to say and they will have their opportunity to speak their peace. If I’m getting hot under the collar because of the behavior or I think they are, I will call for a break even if we just had one a half hour ago. I recently shifted a bit of the cost of the arbitration to an attorney-party who constantly interrupted.
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  • Monday, February 10, 2025 7:24 AM | Delton R Henderson
    I would announce to counsel that I need to take a break, communicating what the agenda would be when we reconvene and inviting anyone who doesn’t wish to participate in the newly established agenda to feel free not to rejoin the meeting. The goal would be to allow everyone some time to cool down and refocus during the group time out.
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  • Monday, February 10, 2025 7:28 AM | George M. Lobman
    This action causes a mass of same type of action. The hearing must stop for the Arbitrator to a break and allow tempers to lower and then try again in 10 minutes. second offense is reason to pause for longer time frame. Third time is close of hearing date and a next day attempt again.
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  • Tuesday, February 11, 2025 9:15 AM | David E. Robbins
    Sorry, but I had one further thought. Attorneys like this are often trying to "set up" the arbitrators to make procedural mistakes and then, hopefully - in the mind of the attorney - subject the ultimate Award to being vacated.
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  • Wednesday, February 12, 2025 5:13 AM | Daniele Favalli, VISCHER Zurich, Switzerland
    I am impressed by the excellent contributions. I would like to add the following side aspects, which have not been commented upon I believe. First, as arbitrator we should bear in mind that, at least in some instances, counsel is pressured by the client to handle issues in a strong manner. Unfortunately, there are some parties who expect that from counsel. Second, some colleagues just need to vent. Maybe that serves a purpose as well (as long as the "venting" individual abides by a minimum level of respect). Third, sometimes the principle "kill them with kindness" may do the trick. That much for disrespect. Non-comliance is perhaps easier to deal with since the arbitrator may use the negative inference rule. In my perception, the mere mentioning can help.
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  • Wednesday, February 12, 2025 7:44 AM | Robbie MacPherson
    AAA Construction Rule R-57 Expenses allows the Arbitrator to assess expenses of the arbitration in the award. I would remind the disrespectful or non-compliant counsel their behavior will be taken into consideration in the application of R 57.
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  • Sunday, February 16, 2025 12:49 PM | Glideman
    As I have been reminded in court, abusive misbehavior can be awfully expensive
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  • Wednesday, February 26, 2025 11:49 AM | Mark Calhoun
    Over the years, I have found that the most effective way to manage disrespectful or non-compliant counsel is to remind counsel, especially if the opportunity presents itself to do so in front of their client, that the Tribunal is the the final arbitrator of the facts in this case. Part of our charge, is to determine the reliability of the evidence being presented on behalf of the parties. One of the ways we weigh that evidence is to consider the presenters, both the witnesses and counsel presenting argument etc. on behalf of their party. I remind them that they should consider that in how they present their arguments and evidence to the tribunal. That almost always has a positive effect on these issues. They may thing their posture is a positive for showing their client how tough they are, but if the client and counsel is aware that it is hurting their case, that usually stops it.
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  • Saturday, March 15, 2025 4:57 PM | Jeffrey Pardo, jjp@pardo-adr.com
    At the first instance of bad behavior, either with me, as arbitrator, or with opposing counsel, I informed counsel that I’m interested only in the facts and the law and that[recount his/her conduct] does not affect my consideration of either in the case. I tried to leave it to council to recalibrate their own conduct.
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