Best Practices For Conducting An Adjudication

Because the sole responsibility for properly conducting an Adjudication falls upon the Adjudicator and there are significant differences in how particular legal disputes can best be investigated and decided, the Adjudicator ultimately has substantial discretion in how the required work is performed. However, we strongly believe that discretion should exercised while pursuing the best practices described below:

Zealous Investigation of the Law and Facts

Throughout the Adjudication, the Adjudicator should provide all Parties with written descriptions of all the legal claims and defenses the Adjudicator is investigating, including a description of the elements of each of those claims and defenses.
It is absolutely essential that ALL parties are convinced that the Adjudicator has zealously sought to find all of the material legal authority and all of the material evidence supporting each of their respective positions in the dispute — even if the pursuit of such legal authority or evidence may have a relatively low probability of supporting a Party’s position. To that end the Adjudicator should continuously solicit the suggestions of all Parties regarding the claims and defenses that should be investigated, the questions and subjects that should be explored during the examination of witnesses and the documents and other evidence to be obtained during the course of the Adjudication.
The Adjudicator should vigorously pursue all reasonably plausible claims, defenses and evidentiary inquiries that occur to the Adjudicator or come to the Adjudicator’s attention during the course of the Adjudication and exclude only those that are clearly outside the scope of the Adjudication, nonsensical or unnecessarily overbroad or harassing.
At all times, the Adjudicator must conduct the Adjudication in a highly professional manner that is even-handed in tone, procedure and substance to all Parties. Under no circumstances should there be any bias, or even the appearance of bias, towards any Party. At the same time, the Adjudicator should not split decisions “down the middle” solely to appear even-handed to the Parties. The Adjudicator should never harbor any reluctance to make the decisions and judgments that are dictated by the law and the evidence, regardless of any disproportionate impact those necessary decisions may have on one Party or another.

Commencing the Adjudication

The Adjudication proceedings should commence immediately after execution of the agreement between the Adjudicator and the Parties with:
- A joint status conference at which the Parties will have an opportunity to more fully explain their views and answer the Adjudicator’s questions concerning the circumstances of the dispute and the inquiries and investigation they believe the Adjudicator should make.
- Legal research concerning the law controlling all relevant claims and defenses and identifying the specific elements that must be proven before any such claim or defense can succeed.
- Examinations under oath of witnesses who possess, or are custodians of, documents and other evidence that is potentially relevant to the dispute concerning the location and organization of the evidence. If useful, the Adjudicator may also arrange physical examination of document repositories and/or training on software capable of retrieving specified documents and/or searching relevant databases.
- Issuing requests and/or subpoenas to Parties and third parties for the production of documents and other evidence that are relevant to deciding the dispute or likely to lead to the identification of relevant evidence and/or witnesses.
- Identifying admissible evidence, including the specific relevant portions of any admissible documents, and cataloguing it in accordance with the elements of the claims or defenses the evidence concerns.
- Examining material witnesses under oath. The Adjudicator should attempt to examine every witness only once for as many days as necessary to complete the witness’ examination. However, if information subsequently comes to the Adjudicator’s attention that should be the subject of further examination of a Party, or a witness under the direction or control of a Party, further examination of that witness may be required.
The Adjudicator should provide all Parties with reasonable advance notice of all proceedings and should undertake reasonable efforts to schedule proceedings in a manner that will allow all Parties, and/or their legal counsel if separate counsel has been retained, to attend. However, the right to attend proceedings is subject to adherence to all rules of decorum established by the Adjudicator. The Adjudicator may exercise reasonable discretion to exclude Parties and/or their legal counsel if the Adjudicator determines that they are unable to conduct themselves calmly and with respect for the Adjudicator, all other Parties and all witnesses. Excessive interruptions and any coaching or intimidation of other Parties or witnesses should not be permitted.

Swiftly Conducting the Adjudication

The Parties are expecting their Adjudicator to provide a superior legal and factual analysis of their dispute and a final decision in less than half the time and at less than half the cost of litigating the same dispute in the public court system. Speed, efficiency, hard work, and consistent progress will be of paramount importance. Frequent joint status conferences should be held to facilitate regular reports from the Adjudicator to the Parties on the progress of the Adjudicator’s work.

Documents and Other Physical Evidence

Requests for production of documents and other evidence to Parties and third-party witnesses (or subpoenas when necessary) should be carefully tailored to focus on obtaining evidence that is likely to be material to the Adjudicator’s decision and should clearly and concisely describe the evidence that is sought.
The Adjudicator should consult with each party to determine the names of their relevant former legal counsel to facilitate the Adjudicator’s ability to identify confidential attorney-client communications that may be inadmissible for consideration in adjudicating the dispute because they are subject to the attorney-client privilege.
The Adjudicator should seek to avoid overbroad or overburdensome requests where possible but should not hesitate to obtain all evidence necessary to make a fully informed evidentiary analysis, even if that places a significant burden on the Parties or third parties.
The Adjudicator should advise all Parties in writing that the Adjudicator is authorized to, and will, draw adverse evidentiary conclusions in deciding the dispute as a result of any lack of cooperation, obstruction, interference or failure to comply with the Adjudicator’s requests for production of documents and other physical evidence.
Documents and other evidence that is produced should be swiftly reviewed for purposes of quickly identifying and organizing portions that may be useful in upcoming examinations of witnesses or may be material to deciding particular claims or defenses.

Examination of Witnesses

All material witnesses should be examined under oath in a manner that is similar to oral examinations of witnesses during a deposition or at trial.
The examination should be recorded by a court reporter (or another reliable means of recordation) and a written transcript should be swiftly created and distributed to all Parties.
The witness examinations should begin with the instructions and admonitions the Adjudicator would normally utilize at the beginning of a deposition.
In addition, examination of Party witnesses should begin with an explanation on the record that the Adjudicator is required to ask difficult probing questions of all Parties to determine the legitimacy of all potential claims and defenses. A stern cross-examination or a focus on particular subjects should not be misinterpreted as an indication of the Adjudicator’s inclination to decide the dispute in any particular way.
Party witnesses should also be advised, on the record, that the Adjudicator is authorized to, and will, draw adverse evidentiary conclusions in deciding the dispute as a result of any refusal to fully answer any questions asked during the examination of the witness.
Transcripts of testimony should be promptly reviewed and organized to identify the portions that may be material to the Adjudicator’s analysis of the elements of relevant claims and defenses.

Expert Witnesses and Analysis

The Adjudicator should advise the Parties as soon as possible (preferably before the Adjudicator is jointly selected) if the Adjudicator determines that it would be useful to retain one or more scientific, medical, accounting, economic, industry or other experts for analysis, testing or opinion testimony on matters that are relevant to the ultimate decision resolving the dispute but outside of the Adjudicator’s training, experience or expertise. The Adjudicator may retain any such expert at the joint expense of the Parties only upon the written agreement of all the Parties.
Any retained expert should be required to sign an appropriate nondisclosure agreement before reviewing relevant material the Adjudicator has determined to be a trade secret or other information legally protected as confidential.
Designated representatives of the Parties should be provided with an opportunity to review any report or other written materials prepared by a retained expert.
Any retained expert should be cross-examined under oath concerning the results of the expert’s analysis or testing and any expert opinions that are offered.
When deciding the outcome of the legal dispute, the Adjudicator may rely upon the work of any retained expert the Adjudicator determines to be credible.

Status Conferences

The Adjudicator should provide the Parties with the opportunity to participate in monthly telephonic joint status conferences for purposes of reporting to the Parties on the work that has been completed and the progress of the Adjudication proceedings. In particular, the Adjudicator should report on the Adjudicator’s adherence to the schedule for completion of the Adjudication in accordance with any timeline or schedule previously provided to the Parties.

Confidentiality

Litigation in the public court system often becomes bogged down with extraordinary cost and delay associated with side disputes over protecting the alleged confidentiality of material disclosed during the evidentiary discovery process. However, unlike litigation in the public court system, a private Comprehensive Adjudication is not an inherently public proceeding and does not need to be conducted publicly. The primary purpose of Comprehensive Adjudication is to swiftly and efficiently provide superior analysis and just decisions resolving difficult legal disputes. It is not to publicly disclose protected confidential information, trade secrets or previously undisclosed private conduct that is not necessary to fully support the decision of the Adjudicator.
To facilitate the swift and efficient investigation of the merits of the dispute without the cost and delay associated with confidentiality disputes in the public court system, the Adjudicator should insist upon fully responsive testimony and immediate nonpublic disclosure to the Adjudicator’s team of all documents and other evidence that could be useful in the Adjudicator’s investigation of the facts surrounding the dispute, even if the material might otherwise be considered confidential.
To facilitate immediate disclosure of all requested information to the Adjudicator and the Adjudicator’s team, including material that might otherwise be considered confidential, the Adjudicator and members of the Adjudicator’s staff should be prepared to sign reasonable non-disclosure agreements protecting against public disclosure of trade secrets or other legally protected private information that come to their attention during their investigation of the dispute.
Previously undisclosed information that comes to the attention of the Adjudicator during the course of the Adjudication, should not be publicly disclosed except to the extent it is useful for purposes of supporting or describing the analysis utilized by the Adjudicator in the Adjudicator’s written decision. Unless the Parties agree in writing to the contrary, the Adjudicator’s written decision adjudicating the dispute should not be confidential and should include references to all of the material evidence the Adjudicator relies upon in support of the decision. Any information the Adjudicator has determined to be a trade secret or other material legally protected as confidential shall be redacted from any public version of the written decision.
All Parties should be provided with a reasonable opportunity to have a limited number of designated representatives observe all witness examinations and other Adjudication proceedings. All Parties should be provided with a reasonable opportunity to have a limited number of designated representatives review all documents and other evidence disclosed to the Adjudicator and all Parties should be provided with a reasonable opportunity to have a limited number of designated representatives review unredacted versions of the Adjudicator’s written decision. However, the Adjudicator should issue a protective order limiting disclosure of material the Adjudicator has determined to be private information, trade secrets and other material protected as confidential under the law to designated representatives of the Parties who have executed appropriate nondisclosure agreements approved by the Adjudicator and who are not in a position that would allow them to exploit the confidential information that is brought to their attention.

Ethical Standards

The Adjudicator should be guided by applicable federal or state rules governing the judiciary on all ethical matters concerning the conduct of the Adjudicator. In that regard, the Adjudicator should avoid all potential impropriety and even the appearance of impropriety.
The Adjudicator should be transparent on all matters with all Parties in connection with the Adjudication proceedings
The Adjudicator should take considerable care to promptly and fully research any potential conflict of interest and should disclose any such potential conflict to all Parties as soon as it may come to the Adjudicator’s attention. Actual conflicts of interest may be waived only with the written consent of all Parties.
Under no circumstances should the Adjudicator provide legal advice to any of the Parties or provide any advance indication of how the Adjudicator expects to decide the dispute.
Under no circumstances should the Adjudicator participate in any settlement communications or negotiations between the Parties.

The Adjudicator’s Identification of the Material Admissible Evidence

The Adjudicator should notify the Parties in writing as soon as the Adjudicator has completed the investigation of the facts and circumstances surrounding the legal dispute. The Adjudicator should then immediately prepare and distribute to the Parties a written identification of all the portions of the testimony, documents and other evidence the Adjudicator deems to be admissible and material to the Adjudicator’s ultimate decision resolving the dispute. The document should be as detailed as possible with quotations of and citations to the evidence wherever useful. The document should include material admissible evidence that is contradicted by other cited evidence and should include evidence the Adjudicator may later decide is not credible, without making any judgment resolving the contradiction or deciding credibility at this stage of the proceedings.
The Adjudicator should exercise broad discretion in deciding admissibility of Evidence but should be guided by the Federal Rules of Evidence.
The Parties should thereafter be given 30 days (or more if agreed in writing by all Parties) to review the Adjudicator’s Identification of the Material Evidence and explore a possible settlement of their legal dispute, if they so desire, before the Adjudicator decides the question of liability.

The Adjudicator’s Decision re Liability

As soon as the period for review of the Adjudicator’s Identification of the Material Evidence has expired, the Adjudicator should prepare and simultaneously distribute to the Parties a written opinion deciding all issues of liability in connection with the Parties’ legal dispute, if the Parties have not previously settled their dispute. The Adjudicator’s Decision re Liability should describe the considerable effort that was made to investigate the legitimacy of all potential claims and defenses and it should explain the legal and factual rationale for the decision in great detail. It should explain how contradictions within the evidence were resolved and how credibility issues were decided.
The Adjudicator may draw adverse evidentiary conclusions in deciding the dispute as a result of any lack of cooperation, obstruction, interference or failure to comply with the Adjudicator’s requests for production of documents and other physical evidence. The Adjudicator may draw adverse evidentiary conclusions in deciding the dispute as a result of any refusal to fully answer any questions asked during the examination of a Party witness.
Liability should be decided entirely based upon the facts and the law without attempting to appease all Parties by simply deciding some issues in favor of legally undeserving Parties.
If no liability is found by the Adjudicator, the Adjudication should be swiftly terminated. If any Party is found to be liable to another on any legal claim, the Parties should thereafter be given another 30 days (or more if agreed in writing by all Parties) to review the Decision re Liability and explore a possible settlement concerning the remedies for any such liability before the Adjudicator renders a decision on the appropriate legal remedies.

The Adjudicator’s Decision re Remedies

As soon as the period for review of the Decision re Liability has expired, the Adjudicator should prepare and simultaneously distribute to the Parties the Adjudicator’s written opinion deciding what remedies should be awarded, if the Parties have not previously settled their dispute.
The Adjudicator’s Decision re Remedies should describe the considerable effort that was made to investigate the appropriate remedies and should explain the evidence that was relied upon and the legal and factual rationale for the decision in great detail.
In the Adjudicator’s written Decision re Remedies, the Adjudicator should seek to persuade all Parties (including Parties that may be disappointed by the decision) that every effort was made to zealously identify the law and evidence that would support the positions of all Parties on the appropriate remedies in an evenhanded manner.
The Adjudicator may draw adverse evidentiary conclusions in deciding upon any appropriate remedies as a result of any lack of cooperation, obstruction, interference or failure to comply with the Adjudicator’s requests for production of documents, data, or other physical evidence. The Adjudicator may draw adverse evidentiary conclusions in deciding upon appropriate remedies as a result of any refusal to fully answer any questions asked during the examination of a Party witness.
Appropriate remedies should be decided entirely based upon the facts and the law without attempting to appease all Parties by simply deciding some issues in favor of legally undeserving Parties.

Conclusion of the Adjudication

Together, the Adjudicator’s written Identification of the Material Admissible Evidence, Decision re Liability and any resulting Decision re Remedies will constitute the Adjudicator’s final decision resolving the Parties’ legal dispute. Swiftly thereafter, the Adjudicator should provide the Parties with written notice that the Adjudication is completed.

Compensation and Billing

Generally, the Adjudicator will be paid a capped total fee for completion of the Adjudication to be paid in established monthly installments in accordance with a work schedule established at the commencement of the Adjudication, plus reasonable out-of-pocket costs. If and when the dispute is resolved via a written settlement agreement, the monthly installments for fees will cease as of the date of settlement.
The capped total fee is the Adjudicator’s compensation for zealously investigating all of the law and material evidence associated with claims and defenses within the scope of the legal dispute described in the Adjudicator’s written agreement with the Parties at the beginning of the Adjudication. If all Parties and the Adjudicator later agree to expand or diminish the scope of the Adjudication they should each sign a written amendment to their agreement altering the scope of the legal dispute and the fees for completing the associated work.
The Adjudicator’s written agreement with the Parties should include advance estimates of the number of witnesses who will likely need to be examined under oath and the number of document pages and/or the amount of electronic data that will need to be retrieved and reviewed to fully investigate the claims and defenses associated with the Parties’ legal dispute. The Adjudicator’s capped total fee should not be altered unless, during the course of the Adjudication, the Adjudicator determines that the number of witness examinations and/or amount of document or data review that is necessary to thoroughly investigate the facts and circumstances surrounding the claims and defenses associated with the Parties’ legal dispute substantially exceeds the estimates and work described in the Parties’ original written agreement with the Adjudicator. Under those circumstances, any additional fees charged by the Adjudicator above the original capped amount should be paid solely by a Party or Parties who request performance of work that exceeds the original estimates.
The Adjudicator should insist that the Adjudicator’s capped fees and costs are paid in full immediately prior to the Adjudicator’s issuance of any decision resolving the dispute.
If any Party is not current in the payment of the Party’s share of the Adjudicator’s fees, the Adjudicator may cease work on the Adjudication until all past due payments are made. If the defaulting Party is unwilling or unable to make the payments that are owed, the Adjudicator should provide other Parties to the dispute with the option to pay the defaulting Party’s share of the capped fee and resume work on the Adjudication once the payments are made. Under those circumstances, the Adjudicator should include a provision in the Adjudicator’s final judgment that requires the defaulting Party to pay the fees and costs that it owed the Adjudicator to the paying Party.
If, through no fault of any Party to the dispute, the Adjudicator fails to perform all of the work necessary to complete the Adjudication, the Adjudicator should refund all fees and costs previously paid by the Parties.