ADR - Law Firms A Practitioner Looks At Trends In ADR

Monday, August 1, 2005 - 01:00

Editor: Mr. Oberman, will you give our readers some idea of your professional background?

Oberman: My resume, for these times, is rather simple. After completing my education at Columbia College and Harvard Law School, I clerked for Judge Milton Pollack in the Southern District of New York in 1972-73. I then joined what is now Kramer Levin in September 1973, and I have happily been here ever since.

Editor: What attracted you to Kramer Levin?

Oberman: Kramer Levin was only five years old when I joined. I was tremendously impressed by the credentials of each of the lawyers, and I believed that I would be challenged by them to do my best work. I also sensed energy and excitement at the firm, and I was particularly attracted by its stated mission of practicing the highest quality law in a more humane environment. I saw an opportunity to get in on the ground floor of this new firm and to make a difference early in my career. I was the 35th lawyer in the firm; today there are over 300.

Editor: Please describe your practice over the course of your career.

Oberman: My practice has focused for over 30 years on complex civil and commercial litigation, copyright litigation and trademark litigation. At this point, I have a broad range of experience across the entire landscape of complex commercial litigation. Many of my commercial cases have involved a business relationship that did not work out, leading to claims such as breach of contract (or breach of a shareholders' agreement, breach of a partnership agreement, etc.), breach of fiduciary duty, breach of warranty, breach of trust indenture, tortious interference and/or fraud. I've represented both plaintiffs and defendants in a wide array of industries. I have also handled on the defense side securities law class actions and derivative actions, and have experience in antitrust and RICO cases. I have represented a state insurance commissioner and a federal bank regulator as receiver in actions to recover the assets of failed institutions. Most of the copyright cases have related to musical works (including the case which led to enactment of Audio Home Recording Act of 1992), but I have also had cases involving video games, motion pictures, visual works of art, and computer software. With my partner, the late Marvin Frankel, I represented the successful petitioner in a Supreme Court copyright case ( Mills Music v. Snyder ), and I filed amicus curiae briefs in two other Supreme Court copyright cases (the Betamax case and the music parody case). And, of course, most pertinent to this interview, I have served as an arbitrator and a mediator.

Editor: You have divided your time between litigation and ADR. For starters, what led you to serve as an arbitrator and mediator in addition to an advocate?

Oberman: Early in my career, I served as an advocate in a number of arbitrations, and I enjoyed the experience. I thought I would also enjoy having the chance to preside over arbitrations. I was greatly influenced by my clerkship with Judge Pollack, who constantly devised new case management techniques to enhance judicial efficiency. I felt I could help parties achieve greater efficiency in arbitrations, and I believe I have done so. As a small example, I typically have counsel on direct simply state the background of the witness and the purpose of the witness' testimony, and to begin questioning with the substance of the testimony. More generally, I like to work with counsel to custom tailor a case to enhance clarity of the record and to avoid unnecessary work and expense. I've always been interested in streamlining litigation; it is a little known fact (up to now) that I was the person who thought up including in the local rules of the federal courts in New York the uniform definitions in discovery requests - saving the expense of having lawyers repeatedly drafting often competing definitions. Judge Pollack had legendary success in settling cases, which inspired me to serve as a mediator. I can never match the accomplishments of my mentor, but I have helped parties settle cases, especially with evaluative mediation.

Editor: Are the skill sets different? What makes for a good arbitrator/ mediator, and is this different from what constitutes a good litigator?

Oberman: I think that the same skill set that makes an effective litigator can also make a good arbitrator/mediator - skills such as the ability to synthesize a lot of facts; the resolve to prepare thoroughly; the instincts to react quickly to what occurs during a hearing; the analytical ability to define the law; the ability to think outside the box and to strategize how to obtain the desired result; and fundamental skills of clear, cogent and commanding communications. However, these skills are used differently depending on the role the lawyer is performing. Neutrals, in order to be neutral, have to hold back in a number of ways. They have to keep an open mind rather than advocating a position up until an award is issued. They have to manage the proceeding - in some cases with a firm hand - and yet still allow the advocates to do their jobs as they see fit, so long as they comply with the rules and stay within the norms of acceptable zeal.

Editor: You have experience as both an ADR practitioner and as a neutral. Please tell us about the value of the latter activity in connection with advocating on behalf of a client.

Oberman: There is tremendous value. Once you serve several times in the role of the decision maker in a legal proceeding, you develop a better sense of what is likely to be persuasive and effective when you act as an advocate and someone else is the decision maker. For example, I was surprised by how helpful I found graphics and demonstrative exhibits when I served as an arbitrator, and I now will use them routinely when I appear before an arbitrator. There is also a comfort level in appearing as an advocate in a setting that is quite familiar because of prior service as an arbitrator. And serving as a mediator has enhanced my ability to settle cases as an advocate, by allowing me to view a dispute more objectively as if a mediator.

Editor: And what is the value of serving as an advocate for your work as an arbitrator?

Oberman: I constantly ask myself when serving as an arbitrator how I would like the case to be conducted were I the advocate, and I shape the procedures accordingly. Let me offer three examples. First, almost all courts discourage any submissions following oral argument, but I know that I will often after an argument think of something that I should have said. I therefore allow counsel to submit an "oops, I forgot letter" after argument containing no more than two or three points that the lawyer feels really should be made. Second, it is frustrating to present an argument to a silent decision-maker who gives no clue as to the questions he or she has in mind. I will always provide guidance in advance of briefing and of closing argument in an arbitration on the issues that should be discussed, and I try in my phrasing of the issues to give counsel some insight as to how I am thinking about those issues. Third, while I will frequently ask questions during direct examinations, I try to refrain from interrupting a cross-examination.

Editor: You have written about the value of using mini-summations in complex, multiday arbitration cases. Can you summarize this development? Has it been accepted by ADR practitioners?

Oberman: Mini-summations is a device that I started to use for multiday cases. After the first day of testimony, I ask the parties to present mini-summations of what each side thinks it accomplished the prior day in direct and cross examination. The mini-summations help me confirm my understanding of the evidence as it comes in and also provide me with a daily narrative of the evidence. As a very helpful byproduct, once parties get used to this process, they plan for the mini-summations. This sharpens presentations, because counsel begin to ask themselves what they expect to accomplish with each witness and then monitor whether they are doing so. Over time, mini-summations (which typically last no more than 15-30 minutes per day, and often less) lead parties to present overarching conclusions about pivotal issues, and allow me to pose issues which define what truly is relevant. My article on mini-summations appeared in the August 2003 issue of this publication, and it is available on your website or mine. I have been told by other arbitrators (particularly those with whom I serve on panels) that they intend to try using mini-summations.

Editor: Please tell us about some of your recent ADR matters.

Oberman: Let me describe the most creative use of ADR with which I have been involved. My firm represented the defendants in a securities class action alleging improper accounting for certain payments the defendant corporation made. Counsel for both sides perceived that the case was susceptible of settlement, but direct negotiations failed. We then agreed to mediation. The mediation dragged on for months because the parties disagreed over the element of loss causation. But the parties agreed to a neutral valuation proceeding within the mediation, hiring a former federal judge to determine whether plaintiffs could show loss causation and damages. With the help of the mediator, but unknown to the former judge, the parties agreed in advance of the neutral evaluation proceeding to a high/low settlement - that is, depending on what the neutral evaluator found and reported to the mediator, the case would settle for at least the stipulated minimum and up to a stipulated maximum. After a one-day hearing, including expert presentations and extended legal argument, the case settled for the minimum amount per the high/low agreement, and that settlement was approved in the Southern District of New York.

Editor: Are there trends in ADR that corporate counsel ought to be alerted to?

Oberman: At least four. First, ADR clauses in contracts have become increasingly customized. Counsel should utilize the opportunity to determine not only the place of an arbitration or the rules that will govern but also the procedural details of a case. In particular, the ADR clause can determine the types and extent of discovery that will occur. Second, discovery in arbitration continues to become more common and more extensive. Document production occurs routinely, and depositions do occur although less routinely than document production (subject to the ADR clause). Third, the use of motion practice in arbitrations continues to increase, although few arbitrators will grant a motion without allowing the resisting party to present evidence at a hearing. We are seeing motions to dismiss granted after claimant's case, especially in NASD cases. Fourth, reasoned awards are on the increase. I favor these both as an advocate and as an arbitrator, because I feel that the act of writing a reasoned award helps the decision-making process.

Please email the interviewee at moberman@kramerlevin.com with questions about this interview.