This case shows that you can’t just phone it in.

This was an auto accident case; the only issue was damages.  Plaintiff didn’t do a Pre-Hearing Statement; Defendant did one unilaterally. Plaintiff didn’t attend the hearing; her lawyer did so only by telephone. When she tried to appeal the resulting award Defendant argued that she hadn’t participated in good faith (Rule 77: failure to participate in good faith waives the right to appeal absent a showing of good cause). The Superior Court and the Court of Appeals agreed.

When compulsory arbitration was new (if you remember this, please don’t get impatient; its amazing to people who do how many people nowadays don’t), some lawyers had the idea that the way to get around it was to ignore the hearing and then to appeal the award. This perhaps had its origins it attempts to circumvent earlier quasi-judicial procedures such as the medical liability review panels (okay, we admit it, almost nobody remembers those any more). So the rule became that you had to participate in good faith. This was used mostly to try to beat defendants over the head since, in routine tort cases (which are the bulk of the arbitrations), it can be a pain to get the defendant to the hearing or to get his cooperation or even, for that matter, to find him. Eventually, the cases realized (though not all plaintiffs’ lawyers have read them) that a defendant’s personal appearance is not necessary when his testimony isn’t significant to the issues.

Plaintiff’s argument was that the substance of her testimony was all in her medical records, which Defendant had submitted to the arbitrator. If Defendant for some reason specifically wanted her there, he should have subpoenaed her (as one of the cases suggests plaintiffs need do for defendants). (Her counsel had told defendant’s counsel – the day before the hearing – that she would not be coming).

The first problem with that is that the Superior Court’s minute entry dismissed her appeal because she “failed to participate in good faith with the scheduled Arbitration Hearing,” not merely or specifically because she didn’t attend it. Her lawyer apparently never gave anybody any good reason for not cooperating in the preparation of the Pre-Hearing Statement.

The second problem was that even if her non-appearance was the reason for the ruling, the failure of a plaintiff to attend can be a bigger deal than the failure of a defendant. “The lack of good faith participation is more plain when the recalcitrant party bears the burden to prove their right to relief.” Therefore, “a plaintiff with the burden to prove personal damages must present relevant evidence and cannot later claim that the defendant should have objected to the plaintiff’s evidentiary decisions or should have attempted to secure arbitration witnesses for the plaintiff.” In addition, in this particular case there was an issue of distinguishing between pre- and post-accident medical problems that Plaintiff’s testimony could have shed light on.

The court therefore concluded that the trial court did not abuse its discretion by finding that Plaintiff failed to arbitrate in good faith.

(And now a brief note on usage. This opinion call the arbitrator an “arbiter.” It may be too late to do anything about this trend but we want to say that we tried. In the best of all possible worlds, “arbiter” would be held to its earlier connotation of someone privately selected. There is etymological and dictionary support for its broader use – the sort of thing people would laugh at if they didn’t want to use it more broadly – but we would have thought the legal profession open to subtle distinction. We would also have thought that it would use the word (“arbitrator”) that the Rules use – especially after using the word “waiver” to describe a forfeiture presumably because that – for some inscrutable reason – is the word that Rule 77 uses. In the real world that we live in, though, the homely but useful “arbitrator” may be down for the count.)