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Adjournment Request by Counsel

Friday, March 28, 2025 4:53 PM | Anonymous

now or later time for action

Two weeks before the date set for the merits hearing the attorney for one of the parties emails the Tribunal and states that he has been directed to appear for trial by the administrative judge of the County and therefore wants an adjournment to a later date. There are other attorneys in that office who have been working on the arbitration, but the attorney who emails you states that the client insists that he be the one to be lead counsel for the arbitration. The adversary counsel insists that the Tribunal not adjourn the hearing.  What would you do?

What are your thoughts?

Comments

  • Sunday, March 30, 2025 10:48 AM | D. Andrew Byrne, Esq.
    I would grant the continuance, assuming that the court did not give the lawyer a choice and there was no prior notice.
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    • Sunday, March 30, 2025 12:30 PM | Robert Hunter
      In NC, the courts have adopted rules about conflicting times for counsel as well as secured leave in civil cases, regretfully arbitration cases would have the lowest priority and a continuance would be granted under these rules
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    • Monday, March 31, 2025 3:55 PM | Robert Gippin
      On those facts (I am therefore assuming no prior delay by that side) I would grant the continuance. Court scheduling overrides and the client has the right to its lead counsel of choice.
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  • Sunday, March 30, 2025 10:48 AM | Jack Levin
    I would ask the attorney whether there are other attorneys in his office who have been working on the court matter. If so, I would ask the attorney to contact the administrative judge in writing to seek an adjournment, explaining that the arbitration hearing had been set far in advance (give the date) and that he is the lead attorney in the arbitration.
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    • Sunday, March 30, 2025 11:35 AM | Eli Mattioli
      I agree with Jack Levin.
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    • Thursday, April 10, 2025 8:16 AM | B. Ted Howes
      This makes eminent sense to me.
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  • Sunday, March 30, 2025 10:53 AM | Antonio García Padilla
    Except that a reasonably proximate alternate date is not available, or that the other attorneys at the office are fully engaged in the arbitration process offering a representation of the same quality, I would grant the continuance.
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  • Sunday, March 30, 2025 11:18 AM | Judge GENE D COHEN (Ret.)
    I suggest the arbitrator, after a full discussion with the parties, contact the administrative judge to ascertain if there is a possibility for a few days relief for the attorney; before granting any adjournment.
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  • Sunday, March 30, 2025 11:40 AM | Julia Sullivan
    That is a tough issue. It would depend, in part, on how long the delay would be. Two weeks, OK. Six months? Maybe not.
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    • Monday, March 31, 2025 11:19 AM | Allan Marain
      ALSO, have there been previous adjournment requests? And what hardships would granting the request present?
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  • Sunday, March 30, 2025 11:43 AM | Mark Diamond
    Ask the other party if they object.
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  • Sunday, March 30, 2025 11:44 AM | Ed Groarke
    I would grant the adjournment, mark it “ Final “ and set a new date in the not too distant future.
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  • Sunday, March 30, 2025 11:48 AM | Gregg Kamer
    I would have a zoom conference with all the parties. Hear their arguments. No briefs. Insist on sworn affidavits to establish the need for the postponement If I deem the request warranted i would grant it with with guardrails. The Requesting party to pay all costs of postponement.
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    • Sunday, March 30, 2025 11:36 PM | Archangela DeSilva
      I agree with Greg Kamer. All alternatives should be explored and a definite date set if postponement is necessary.
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  • Sunday, March 30, 2025 11:59 AM | Peter Rundle
    Tough call. Agree with other comments suggesting counsel communicate with the Court, advise of pending arbitration with many different calendars at play, and not take any action too quickly. As others have noted, if alternative counsel (within the same firm) have been working the court matter, perhaps they can lead on that case. Too few facts to make a judgment call. Last thing you want to do is place a party, or their counsel, at an extreme disadvantage due to a conflict imposed by a "higher power." Local court practice for my jurisdiction includes a Case Management Conference Statement pre-trial setting conference that requires disclosure of dates during which trial counsel are not available.
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    • Sunday, March 30, 2025 4:00 PM | Deborah Rothman
      I like Peter's and Jack Levin's approaches. It is important that we avoid making a snap decision in an issue as freighted as this one, as much as we might wish to appear decisive.
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  • Sunday, March 30, 2025 12:01 PM | John M. Delehanty
    Although I am generally opposed to postponements of arbitrations, particularly so close to the date of the hearing, I would grant the continuance here, assuming that the client's choice of this counsel is not arbitrary and that he or she has played a major role in preparing for the arbitration. If the client's choice is merely based on its exerting its influence without a rational basis, I would hesitate to grant the postponement, since there are other counsel who could handle the case.
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  • Sunday, March 30, 2025 12:10 PM | Joseph G. Bisceglia
    I would be inclined to grant the request, assuming it would not have to be a lengthy one.
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  • Sunday, March 30, 2025 12:14 PM | Charles S Burdell
    I would not grant the continuance. The arbitration was probably scheduled for many months and the judge's order setting trial on two weeks notice is unreasonable. The judge should be informed in writing. If the judge refuses to reschedule, one of the other attorneys should handle the arbitration.
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  • Sunday, March 30, 2025 12:32 PM | James Gansinber
    I would inquire if the attorney had explained requested a continuance from the administrative judge based on the fact that there was a merits hearing previously set for the same date. If he had requested a continuance and been denied, I would agree to a continuance of the merits hearing to a date certain.
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  • Sunday, March 30, 2025 12:54 PM | Abigail Pessen
    I would arrange a zoom call to find out the expected length and other details of the state court matter, and whether another colleague could handle it; I’d also direct the attorney to write to the court immediately and explain that he will be actually engaged in the arbitration on the court trial date, and report back on the court’s response.
    At the end of the day I would only adjourn if the postponement were very brief and doable for the other side.
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  • Sunday, March 30, 2025 12:58 PM | George lobman /NJ
    Assuming the claimant is requesting it must be granted since he would be interested in getting to the table faster! Considering it’s the respondent asking I would ask for viable proof of the Judges direction and then grant it. Schedules and witness availability must be discussed and considered!
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  • Sunday, March 30, 2025 1:06 PM | Mark Brancato
    Given the facts as outlined in the hypothetical, I would grant the request for an adjournment. Parties are entitled to be represented by the attorneys of their own choosing, and that right should be respected as much as possible. Here, there apparently had not been prior adjournments and nothing suggests that the opposing party will be prejudiced. That said, I would probably require a more formal and detailed representation by moving counsel. An email, in my view, is not enough.
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  • Sunday, March 30, 2025 1:42 PM | Robert H Flynn
    If opponents oppose continuance, and if there was more than adequate notice and agreement on the date, counsel should be ready to try or arbitrate the case, so perhaps require co-counsel to appear and initiate the hearing with swearing witnesses and/or a brief opening addressing mostly procedural matters with all openings for next step so the matter cannot be put off for protracted delay permitting it to continue as soon as court freed the lawyer. Or, perhaps hold the case to start on a day to day hold and commence it when court freed the lawyer. This might also give the lawyer leverage in front of the court to delay that court matter.
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  • Sunday, March 30, 2025 1:54 PM | Daniel Feinstein
    Failure to grant a continuance when good cause is shown is one of the very, very few ways for an arbitrator's decision to be overturned on appeal. Denying the request is inviting a subsequent challenge and undermining the concept of finality of an arbitration award. In the absence of something else not in the hypo, I'd grant it and reschedule the hearing promptly.
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  • Sunday, March 30, 2025 2:12 PM | Gary Oxenhandler
    At the initial conference when we set the hearing date as well as the timeline of discovery and dispository motions, I make it clear that although we may adjust some dates leading up to hearing, the hearing date is a hard date. In most instances, the hearing date is set many months in advance. With a party objecting to the continuance, I'm less likely to grant it. If however there was a quick setting on the hearing (a couple of months), I'll grant the continuance.
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  • Sunday, March 30, 2025 2:12 PM | Patrick Kingsley, Esq.
    I would grant the request. The need for the postponement is not the fault of the requesting party or its counsel and the arbitrator should honor the party's request that a particular lawyer represent it.

    I may press the parties to make sure that everything represented is factually true. But if it all checks out, I would grant the postponement.
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  • Sunday, March 30, 2025 2:22 PM | Larry Weinstein
    The one thing I would not do is insist that the arbitration hearing be held with another lead counsel, at least without exploring every available alternative. Preventing a party from using the lead counsel of their choice should almost always be avoided. Contacting the administrative judge to inquire about a possible continuance of the trial is an interesting approach, but I suspect the side whose lead counsel has been directed to appear might reasonably object for fear of annoying the judge. I have had this happen in a couple of my cases, but it has never been a significant problem, because both sides were amenable to a fairly short postponement of the evidentiary hearing. I think this only becomes a real problem if there is a sense a party is not being candid, or the next mutually agreeable evidentiary hearing date is sufficiently far down the road as to interfere with the goal of a prompt and efficient resolution of the case. One factor that needs to be considered is the expected length of the evidentiary hearing and the length of the trial. The longer the former, the more difficult it may be to efficiently reschedule the evidentiary hearing. Good question, because there is no easy, one-size-fits-all answer.
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  • Sunday, March 30, 2025 2:25 PM | Michael Levy
    I agree with Jack Levin and Eli Mattioli
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  • Sunday, March 30, 2025 2:28 PM | Georges Affaki
    In the case described, I would grant the continuance. Varying one factor of the case, namely the invoked reason, the solution could dramatically change. For example, counsel could candidly argue a need for more time to prepare, a key witness becomes unavailable, an expert has too much on his or her hands and unable to deliver in time. The opposing party objects to any vacation of the hearing which, given the number of witnesses/experts/counsel scheduled to participate and to everyone's busy agenda, can only be rescheduled 6-8 months later. Written submissions will only lead to further entrenchment. A video conference with counsel with some prompting from the arbitrator may facilitate the finding of a creative solution by the parties, including by organising partial, shorter hearings at different points in time or bifurcating the question that unavailable counsel was the lead for.
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  • Sunday, March 30, 2025 2:40 PM | Jim Burgess
    If both parties had agreed, I would have readily granted a continuance. Failure to grant a reasonable continuance often can be grounds for vacatur. However, here one counsel objects. So, I would convene a telephonic or Zoom meeting that day or the next day to discuss. I would want to know how long the trial will last and why this particular attorney needs to handle it and whether there have been settlement talks in that other case (in other words, how likely is it to go). My thought going in to that call would be to hold the arbitration hearing date but schedule another call two days before the hearing (not two weeks) to see what our status is. If other the trial is going to go, I would trail the arbitration until a reasonable time after the other trial -- with the witnesses and clients being informed that they need to make themselves available. I try to get consensus but if that is not possible then I will keep as close to the existing date as possible. I am not sure I can say for sure how I would rule without talking to counsel and getting more information.
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  • Sunday, March 30, 2025 2:49 PM | Michael Orfield
    There seems to be a number of concerns going on at once. I certainly don't want to set up some kind of confrontation with the trial court. The attorney involved will be adhering to the trial Courts ruling and will be appearing for trial. The next issue becomes whether or not I insist that the arbitration go forward with out the lead attorney, without the attorney whom the client has asked lead the evidentiary hearing. The third issue is the age of the case. If I have done my job as the arbitrator, the case has spent less than half the time in litigation than it would have been in a superior court lawsuit. If there is some time that I feel comfortable, using for a continuance, I will do so, and have done so.
    If the clients request for a particular attorney is unreasonable under the circumstances, if there is an attorney just as able to conduct the evidentiary hearing, if the arbitration process has already been extended, for some reason, then I may seriously consider requiring the other qualified attorney to head up the evidentiary, caring, and deny the continuance.
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  • Sunday, March 30, 2025 2:50 PM | Carlos Loumiet
    "the" attorney? The LEAD attorney, or just ONE of various attorneys on the case? (By this close to a hearing on the merits, THE lead attorney for each side should be clear.) First I would stringly urge both counsel to again attempt to reach agreement on a continuance. If they can't agree, I would quickly hold a hearing to determine the actual facts, listen to both sides on the issue, grant a short continuance if indicated, make clear that in return I would expect THAT attorney to lead the hearing.
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  • Sunday, March 30, 2025 3:18 PM | Jim Gansinger
    I would continue the merits hearing to a date certain at the earliest date that all counsel’s calendars would accommodate. If he had not sought a continuance from the judge, I would direct him to do so, and to explain the existence of the prior scheduled merits hearing. If the judge refused the request, I would grant it.

    The rules provide for extensions of time and postponements on good cause shown. I would consider this good cause once counsel unsuccessfully attempted to continue the judge’s matter.
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    • Monday, March 31, 2025 12:53 PM | Mark Voigtmann
      I agree with Jim Gansinger.
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  • Sunday, March 30, 2025 3:19 PM | Michael Seng
    Conference call to discuss possible compromises via one or two day delay, remote appearance by conflicted counsel, communications between judges to resolve date conflict, find out which date assigned first, etc. Bottom line: absent contrary agreement, merit hearing goes forward.
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  • Sunday, March 30, 2025 3:45 PM | Marc E. Elliott
    This is not an abstract hypothetical; this happens often. First is a conference call to get more information from the party seeking the adjournment. Is this the first time the other matter is on for trial? Is it the first time the arbitration is on for the merits hearing? Has the party try to postpone the trial and if not, is that an option. It is important to be realistic about the commitments that your parties attorneys have two other clients and other tribunals. The goal is to move the arbitration forward as quickly as possible while being fair to all concerned.
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  • Sunday, March 30, 2025 3:56 PM | Judge Renée Cardwell Hughes (Ret.)
    To make a fair decision more information is needed. How much delay will this continuance cause for the parties? How will this impact the availability of the witnesses? If the delay is not unreasonable it might be appropriate to grant the continuance. I would want to know the trial schedule and length. Is it possible for other attorneys to conduct some part or all of the trial which would allow the lead attorney to move forward with the arbitration. Is it possible to bifurcate the arbitration? Although not ideal, it would allow progress to be made. These questions matter because a creative and fair solution can be crafted with more information. It is critical to note that if the Court is ordering counsel to trial there is a problem with that case and an arbitration will not take priority. Consequently a continuance or some creative approach is necessary.
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  • Sunday, March 30, 2025 4:00 PM | Gregory Classon
    If the arbitration is governed by the AAA Commercial Rules, R. 31 states that the arbitrator can unilaterally grant a postponement at the request of a party ". . . for good cause shown . . ." Until the arbitrator knows whether or not other attorney's in the firm can handle the court date, I don't think that this standard has been met. So, I agree with comments supporting initial inquiry with the County court before a decision is made.
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  • Sunday, March 30, 2025 4:06 PM | Nasri H Barakat
    The Administrative Judge of the County 's directive is almost akin to a Force Majeure that the party cannot ignore! Also, the parties should be able to defend or prosecute their case in the manner they see fit. This includes the choice of the attorney (s)! This is why I would be inclined to grant the delay. However, I would be insisting on dates that would least prejudice the other party who is adamant on going forward with the initial hearing dates. This maybe similar to a convocation to serve on a jury in a criminal trail!
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  • Sunday, March 30, 2025 4:12 PM | David Calvillo
    I'd ask for a response from the opposing counsel. They may agree to a short continuance. If no agreement, i'd try to determine if the client's position will be prejudiced by another lawyer handling the case or get a more definitive estimate for the length of the trial and reschedule the arb hearing accordingly.
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  • Sunday, March 30, 2025 4:30 PM | Greg Wood
    I would deny the request without prejudice. The party requesting the delay should present a fact and evidence-based request including a statement showing that the administrative judge has been informed of the arbitration hearing, why the trial date of the administrative hearing was set prior to the date the arbitration hearing was set or otherwise demonstrate why the administrative hearing would take legal precedence. An alternative would be to deny subject to a request on the date of the administrative hearing to recess the arbitration hearing for a limited time based on confirmation that the admin hearing had been commenced and could not have been delayed.
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  • Sunday, March 30, 2025 5:20 PM | Dean John Feerick
    As to the question at hand, here is what I might consider doing and why: I would get in touch with the administrative judge, explain the circumstances of the arbitration, and see if the administrative Judge's trial could be adjourned for a short while because of the urgency of the AAA matter. Why this approach? I reference in my memoir (p. 243) a mediation I had involving the final four. The case was in the federal court in New York City, before a jury, and the parties wanted it mediated. They called me at night, each alone, and indicated that if they had a day long meeting they might reach an agreement. They asked me to mediate it and to call the judge and ask if the trial could be delayed a day and why. I did so, and the judge delayed it for a day, and I mediated it that day and an agreement was reached. The parties spoke to the media about the settlement and I slipped away, grateful to the adjourning judge for allowing me to help the parties.
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  • Sunday, March 30, 2025 8:18 PM | James R. Madison
    "Administrative judge" Are we talking about a court trial or an administrative hearing of some sort? Also, if in court, what state, because, in California, trials are set months before the trial date.

    Assuming in court, my first questions would be was the trial set at a hearing or did the setting just come in the mail or by email. If at a hearing, did you object/inform the court that you had previously been set for an arbitration hearing on the same date? In any event, what remedies, if any, are available to you in court to have the court date moved? Why can some other lawyer not try the court trial?

    If counsel did not object to the trial date and has not tried whatever is available by way of remedy for the setting, good cause has not been shown to continue the arbitration.

    If counsel has made appropriate effort to put the arbitration first, then court trumps ADR in my world, and I would continue the arbitration to the earliest date the parties and tribunal have available.
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  • Sunday, March 30, 2025 8:29 PM | Anonymous
    If this was the first time a continuance was requested, I would grant the continuance but allow adverse counsel to propose the two or more dates for the next setting within the next 30 days so that resolution is not unduly delayed.
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  • Monday, March 31, 2025 7:35 AM | GARY W JAVORE
    It would depend upon a number of factors: How old is the case? Is this the first request for continuance? Has the attorney actually served as lead counsel in the proceedings up to that point? Are there attorneys in the office that could handle the state court proceeding? I recently declined a request on a three-year old case, which had been continued several times, and there were 8 lawyers listed as co-counsel. As it turned out, the state court proceeding settled and the attorney was present for the hearing.
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  • Monday, March 31, 2025 8:43 AM | Jeffrey Pardo (jjp@pardo-adr.com)
    I agree with Gene Cohen. Most administrative rules provide for hearing conflict resolution based on higher court, older case, when the hearing was set, etc. A quick conference to get the details about the other case and to inform counsel that you'll contact the other judge to resolve the conflict is the most appropriate course (IMHO). ... And, if the requesting counsel was exaggerating (or fabricating) the conflict, it might even give him/her an opportunity to save face before you actually speak with that administrative judge.
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  • Monday, March 31, 2025 9:23 AM | randall l mitchell
    I would urge the claimant to proceed with the co-counsel who have been involved in the case. Failing that, I would set a new hearing date with the understanding that the new date is final and if claimant is unable to proceed on that date, I will enter judgment for the respondent
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  • Monday, March 31, 2025 10:25 AM | Robert L. Arrington
    There are many good comments on this thread. I agree that both parties should be heard on their positions. I also agree that I would make the requesting attorney at least try to obtain an alternate trial date. I would most likely grant the continuance if push came to shove.
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    • Monday, March 31, 2025 10:55 AM | Jim Kobak
      I agree with this approach.
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  • Monday, March 31, 2025 11:30 AM | David Robbins
    The court should postpone its hearing unless both parties to the arbitration consent to the adjournment. Arbitration should not be subservient to court dictates.
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  • Monday, March 31, 2025 4:01 PM | Mickey Greenberg
    I'd call the administrative judge and find out whether the requesting attorney's appearance could be changed to avoid changing all the arrangements for the arbitration.
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  • Monday, March 31, 2025 4:03 PM | Jaime Ramon
    I would ask the requesting attorney to inform the court that she has had this matter set for arbitration hearing on the same date and whether the trial date can be pushed back a bit. If it the trail date cannot be moved, I would grant the request.
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  • Monday, March 31, 2025 9:43 PM | Alejandro Osuna, LLM, FCIARB
    If there are other attorneys involved in the arbitration I would enquire why no other attorney would be able to represent the client in the case. If there are many attorneys involved, it is usually because they are providing assistance to lead counsel. It is no surprise that in situations like this, co counsel mut be ready to come up to the plate if needed.
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    • Thursday, April 03, 2025 12:11 PM | Joe Catania
      This is a common circumstance.
      Several factors come into play. They are:
      1. How old is the AAA case?
      2.How many parties?
      3.How close to the hearing date?
      4.How many fact, non party and expert witnesses will be impacted?
      5.How many requests for adjournments have been made, by which party, and granted?
      6.Was the trial set at a conference or by notice? 7.What efforts had counsel made to persuade court to move the trial date?
      8.How large is the firm requesting the adjournment and how many of its lawyers have expertise in the subject matter of the arbitration and in litigation?
      9.Had counsel been advised-at the first prehearing conference- that they should prepare their firm, assisting counsel and the client for just this circumstance? (Again, this happens all the time whether in arbitration or plenary actions. Judges routinely refuse to recognize other trial commitments, vacations etc. and for lawyers with active trial calendars it's a fact of life)
      10.Do other parties object?
      11. How long an adjournment is requested? What is the overlap? (for example: it may be that the last two days of the hearing conflict with the first days of jury selection of the trial. Another attorney could select the jury in the plenary action and the lead attorney in the arbitration matter will be available by then)
      My observations are that a quick conference is essential to explore all the facts and alternatives. The arbitrator should make clear to the parties that she is quite prepared to push hard to preserve the hearing date. This should be the case even if all parties consent to the adjournment. In my view, even though the process is a matter of contractual agreement between the parties, arbitrators should not be quick to "solve" the problem by adjournment just because all parties consent. The dynamics of litigation are such that often one party will be reluctant to object for fear of what goes around comes around, counsel may know each other well, especially in more specialized areas such as construction law, or simply don't want to be the bad guy. On the other hand, we as arbitrators have a responsibility to the process, to insure it is efficient and speedy while at the same time preserving fairness.
      Frankly, my experience, as arbitrator or as a litigant's counsel, has been that, once the party seeking adjournment because of some conflict realizes that it is not there just for the asking and that the arbitrator will explore any to preserve the dates, somehow, they find a way.
      I think it appropriate that counsel and the arbitrator discuss early on in the case the expectation that the parties be prepared for conflicts that may impact the matter. Experienced counsel will understand that involving other counsel in the firm, introducing the client to assisting counsel, discussing with the client the ramifications of irreconcilable scheduling conflicts all go a long way toward making the issue less challenging-especially if the client is the party making the claim.
      I ask the question: What are arbitral bodies doing, if anything, to secure equal recognition of arbitration hearings when courts are scheduling trials? An affirmative statement from the administrative judges and in the rules of court acknowledging the legitimacy of pending arbitrations on equal footing as a trial so that counsel might submit an affidavit of actual engagement that will carry like weight to a trial would be very helpful. The court administrative system should recognize the advantages to the court system resulting from the removal of so many cases that would otherwise be brought by way of plenary action.
      Finally, when all is said and done, this really is a judgment call dependent on the facts and the credibility of counsel. I think when weighing all the factors, unless there is clear reason not to, an adjournment should be granted. After all, the last thing we should want to do is unfairly prejudice the party.
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  • Saturday, April 12, 2025 12:58 PM | Alan Pralgever
    I would definitely grant the request as long as the other counsel doesn't object. Having the lawyer of your choice at the helm if you are a client is critical.
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  • Saturday, April 12, 2025 12:59 PM | Alan Pralgever
    I would definitely grant the request as long as the other counsel doesn't object. Having the lawyer of your choice at the helm if you are a client is critical.
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