CONDUCT IN THE HEARING

At the time I acted as arbitrator, the NASD was not providing any training on how an arbitration should be conducted nor what is the proper conduct for an arbitrator. Within that later context is the suggested conduct by the chairperson- and whether it be any different from the other arbitrators. (I submit that the courses I have seen so far still do not address the following).

In regards to the first issue, it is necessary to relate what happened in my first hearing and why I subsequently felt that much was remiss. During the first break, I was admonished that I had been nodding my head or moving my body as if to imply agreement or disagreement with the subject matter being presented. It was suggested that I make a conscious effort not to impart any body movement or facial expression that might indicate any acknowledgment of any material submitted by either parties. This admonishment was bestowed while a senior NASD staff attorney was present- and who had been present in all the arbitration.

While I certainly understand the significance of not standing on a chair and shouting verbal epithets against either party, I believe the arbitration process- and most of the parties involved- are of such professional caliber that such suggestions are infantile and degrading to both the process and arbitrators. Further, efforts to control human responses are ill advised and force individuals to spend time being robots. Admittedly no other arbitrators that I ever worked with have held this position, but it may be taking place in other arbitrations. While arbitrators do submit "blind" reviews at the end of each session, they might be superficial since major derogatory comments might get an arbitrator blackballed from further cases. In any case, classes regarding arbitration procedures should be conducted beforehand.

A serious problem that does exist in many arbitrations is the fact that current or retired attorneys or judges act as Chairpersons. While their capabilities and background in arguing points of law are unquestionably valued and welcomed, arbitrations are NOT courts of law and do NOT have to held- and should NOT be held- in the same manner. Arbitrations, as defined, are not held to the same bureauacratical and limiting standards of a court of law. Chairpersons should/must recognize these "lowered" standards and give the arbitrators freer rein in analyzing the case. This comment makes specific reference to the ability of an arbitrator to ask questions during actual testimony and cross.

Unfortunately, the arbitration rules suggest that questions regarding testimony be delayed until the examination of a witness is completed. I believe that is far too restrictive. On many an occasion, attorneys have failed to present material facts to the case- probably because their limited understanding of security application did not make such questions obvious.

And if testimony may take several hours, it is illogical to wait until it is completed before getting answers to necessary testimony completed several hours ago.

While it is true that too many disruptions and questions by arbitrators could ruin an attorney's presentation, I submit if the arbitrator's inquiries are expeditiously timed, they should provide more continuity and understanding of the issues involved and a more comprehensive and knowledgeable resolution.

POOR CONDUCT

Arbitrator's are asked to submit blind review of the other arbitrator's conduct an knowledge. Though there are no statistics on what percentage are deemed competent, I submit that some arbitrators repeatedly used by the NASD and other forum staff should be discontinued.

In one major case, a continuance was given after three days of testimony. Upon reconvening the hearing two months later, the frequently used chairperson, a retired judge, administered oaths and procedures as though it was a new hearing. It was quite obvious he had not reviewed the case again, did not know the issues before him, etc. All parties looked particularly distressed by his actions. Before it went further, I told him it was merely a continuance. Fortunately, his conduct during the subsequent four more days of hearing was adequate and the parties apparently had forgotten the problem. But his actions were potential cause for an appeal due to arbitrator incompetency.

In a separate case, a plaintiff was representing himself. While not always the best thing to do, it is his right. Unfortunately, the chairperson, a retired judge frequently used by the staff, told the plaintiff he was a fool to represent himself. I admonished him never to express such comments to either party. Opinions about business conduct is acceptable, but personal opinions are unacceptable. Unfortunately, his commentary and conduct was only slightly better for the rest of the hearing. The judgment was subsequently appealed- and I submit it was due to his interference and commentary. Though I did indicate that his attitude was improper, he nonetheless remains a frequently used arbitrator.