By Phil Cutler
Cutler Nylander & Hayton PS
1191 Second Avenue
Seattle, WA 98101
Philip E. Cutler © 2011
It has undoubtedly happened to you. It is the week before trial. You are in the final throes of case preparation. You are feeling good about the case and your preparation. You are looking forward to trial, after which you and your client can turn to other pursuits.
Then . . . you receive an unsolicited email or phone call from your assigned judge’s judicial assistant telling you that your trial date has been stricken, or that the case has been brokered out to another judge for trial (probably one unfamiliar to you). Or the morning mail brings a copy of an order so stating. This has always been a risk for superior court cases, less so than for federal cases. However, as our judges are being forced to do more with less, this unfortunate scenario will play out with increased frequency in the future.
Your client can (maybe) afford one round of trial preparation; more likely than not your client can’t pay to ramp up the case twice. What to do?
Particularly if your client was going to be happy with a bench trial, consider getting your opponent to agree to put the case into private, binding arbitration under RCW 7.04A. If you’re able to secure an arbitrator in whom both sides have confidence and the arbitrator can work your arbitration into his or her calendar on short notice, you won’t be forced to try the case to an unfamiliar judge, the cost of trial preparation won’t be materially increased . . . and both sides will benefit from a reasonably quick resolution.
An agreement to arbitrate must be in writing. See RCW 7.04A.060. A stipulation along the following lines, filed in court, will ordinarily suffice:
The parties hereby stipulate and agree that (1) the trial date in this case may be stricken, (2) all issues and claims shall be heard and resolved in a private arbitration under RCW Chapter 7.04A by [a sole arbitrator] [a panel of three arbitrators], namely [insert name(s)], and (3) proceedings in this case before this court are stayed pending arbitration. The parties hereby further stipulate and agree that they will timely advance such sums as may be requested by the [arbitrator for his or her compensation and expenses] [arbitrators for their compensation and expenses]. The [arbitrator’s] [arbitrators’] final award shall be entered within ___ days after the [arbitrator has] [arbitrators have] declared the hearing closed.
Before confirming the acceptability of your arbitrator, be sure that he or she follows the disclosure requirements of RCW 7.04A.110 (2) and .120 and that you share those disclosures with your client. Neither you nor your opposition should risk vacatur by skipping this step.
Because the arbitrator expects to be compensated for the time spent hearing and deciding your case, the move to private arbitration is not without monetary cost. However, if the case is virtually ready for hearing your arbitrator should be able to predict with a high degree of accuracy the estimated cost, since the arbitrator will not have to deal with the many variables that are associated with pre-trial proceedings such as discovery and dispositive motions.
Your arbitration agreement should also specify when the arbitrator’s award is due. Most arbitration provider organizations set a due date 30 days after the hearing has been closed. See, e.g., Rule R-41, AAA Commercial Rules. Although a “bare” award (merely a statement of who prevailed and in what amount) is often sufficient for simple cases, your client will most likely prefer a “reasoned decision”, in which the arbitrator gives reasons for ruling as he did.
If you want the arbitrator to apply legal rules of evidence during the hearing, your arbitration agreement should say so. If it is silent, the arbitrator will “determine the admissibility, relevance, materiality and weight of any evidence.” RCW 7.04A.150 (1).
The arbitrator has broad power to manage the arbitration process and to ensure that all parties receive a fair hearing. See RCW 7.04A.150 and .170.
You and your client should understand that the avenues of appeal from an arbitration award are substantially more limited than in appeals from a court decision. See RCW 7.04A.230. There is no review of the arbitrator’s decision on the merits.
 In the Western District of Washington, Local Civil Rule 39.1(d) also provides for voluntary submission of cases to arbitration.