More and more cases whether business, divorce or personal injury cases are being resolved with alternative dispute resolution (“ADR”) which consists of both mediation and arbitration, and employs means of settling cases that do not involve a judge ruling on the matter. ADR settlements are out-of-court settlements, conducted by voluntary agreement of the parties.
In handling personal injury car collision cases, they are commonly arbitrated and this article gives you an idea of what to expect at an arbitration.
Arbiters are like rent-a-judges for the day. Arbiters are the judges of the Arbitration and are the ones who decide your case. They are generally law trained, but do not have to be law trained licensed attorneys. In the personal injury realm, the arbiters are generally seasoned attorneys with 20 years of specialized experience in defending or prosecuting personal injury claims. Sometimes you can have a three panel arbitration with three arbiters. One arbiter chosen by the defense, one chosen by the plaintiff and then the two arbiters choose the third and final arbiter to complete the panel which will decide the case.
An Arbitration is the trial, except instead of being in a courtroom with a judge, you will be at one of the attorneys offices, in their conference room in a very informal manner. The Arbiter will not be wearing a judicial black robe, nor are the arbiters addressed as “your honor,” or “judge.”
One benefit of Arbitration is that the process is significantly informal compared to regular court proceedings and they are private. At regular court proceedings, the Utah Rules of Evidence apply, which slow the proceedings down and increase the cost of prosecuting the case.
Legal Authority for Arbitration:
The legal source and power to Arbitrate is found by mutual consent of the parties and at several places in the Utah Code. The general Utah Uniform Arbitration Act is found at Utah Code Ann. 78B-11-101. A plaintiff can elect Arbitration for car collision cases at 31A-22-321, or for general injury cases, a plaintiff can elect Arbitration under Utah Code Ann. 78B-10a-101. For underinsured or uninsured personal injury cases, the plaintiff can arbitrate under the provisions of 31A-22-305 and 305.3. For personal injury car accident cases where each of the parties are related to each other, the parties can elect what is called inter-family arbitration. Inter-family arbitration applies to situations where the mother is driving and injures her infant son in a one car rollover. The law has found that these inter-family types of personal injury claims are best dealt with privately, where arbitration is well tailored to those ends. Similarly, there are federal arbitration statutes and many private contracts have mandatory binding arbitration provisions in them that compel arbitration of any dispute between the parties. Just look at your credit card applications. Similarly, medical providers often have hidden arbitration provisions in the contract for services that you sign every time you enter their office.
Each style of arbitration has its particular benefits and drawbacks and any personal injury attorney you hire needs to thoroughly understand these possible strategies.
When the actual arbitration starts, it will proceed similarly to a regular trial that you see on TV. Often, the opening statements are shortened and the plaintiff presents their side of the story (case in chief) which covers all the elements required to allow the arbiter to make a decision. Then the defense presents their case in chief. Thereafter, a plaintiff may present a rebuttal case to the defendant’s case in chief. Similarly, the defendant can present a rebuttal case in chief. Closing arguments are presented by both sides and the arbiter retires to render a decision on the spot, or in a written decision issued later.
Witnesses, just like at a trial, can be placed under oath, and be questioned by the attorneys. Unlike a regular trial, sometimes at arbitration the attorneys will proffer the witness’ testimony, rather than putting them on the witness stand (which is the chair they are sitting in at a conference room).
Expert witnesses often do not show up at arbitrations, with the parties favoring to save the costs of live expert witness testimony. Not requiring your experts to show up and give live testimony is a significant time and money saver which can save you thousands of dollars. Sometimes the case is large enough where experts will show up at arbitration. That is a strategy move by your personal injury attorney.
Some arbitrations have lasted all day, others have been 30 minutes where the client did not even show up.
De Novo Appeals:
Most all arbitration statutes have an appeals process whereby either party can request a jury trial, or a judge only trial. In Utah this is called a De Novo Appeal. It is generally as of right and must be elected within a certain time period after the arbitration award.
There are many benefits of arbitrating your personal injury case. One significant benefit is speed and savings. One significant drawback is that the chances of a very high verdict are far less likely with arbitration, than seeking the people’s verdict–a jury.
If you have a car accident case, call Attorney Jacob S. Gunter at (801) 877-1871 for a consultation.