Construction lawyer Don Gregory presented alongside Houston attorney Bill Andrews at a recent American Arbitration Association (AAA) webinar, discussing the effectiveness of arbitrator subpoenas to third-party witnesses and related issues. The presenters offered an overview of AAA rules, arbitrator authority, court territorial restrictions, and permissibility of pre-hearing third-party discovery by subpoena.
Additionally, the construction lawyers shared creative alternatives, including pre-merits, bifurcation of hearings, and other avenues. The presentation closed with recommended practice tips for advocates and arbitrators. For advocates, these included (1) knowing the law in one’s federal district, (2) being prepared to prove a “special need,” (3) suggesting creative solutions to the panel, and (4) seeking opposing counsel’s agreement to the third-party approach. For arbitrators, the recommendations included (1) asking parties to brief the state law, (2) encouraging counsel agreement for parties, (3) moving the “hearing” to alternate locations, and (4) sending only one arbitrator to a venue to minimize costs.