Monday, June 21, 2021

 Meet D1's Neutrals Series:
KENNETH R. KUPCHAK

Company: Damon Key Leong Kupchak Hastert

Email: krk@HawaiiLawyer.com

Website: https://hawaiilawyer.com/

Law School: Cornell University (1971)

Types of ADR services offered: Arbitration

Affiliated ADR organizations: AAA

Geographic area served: Hawaii (and elsewhere if costs covered)


Q: Describe the path you took to becoming an ADR neutral.

A: My legal practice has centered for 50 years on construction, land use, complex litigation, mergers & acquisitions (including a handful of  West Coast and Pacific Basin landmark design and construction companies), and eminent domain. In many of these areas, my representation has included business formation, acquisition, contracting and disputes arising from operations from “soup to nuts.” A number of  cases resulted in State Supreme Court and nationally recognized decisions, including one that prompted the insurance industry to alter its ISO. I have represented land owners, developers, designers, contractors, subcontractors and suppliers. 

Q: What percentage of your current legal practice is spent on ADR work? What do you do when not serving as an ADR neutral?

A: While my practice still focuses on representing clients, I have been asked to arbitrate disputes in related fields over at least four decades by those who know that I have some familiarity with the industry and/or law in question or the contextual setting. If the case is interesting, I agree and try to efficiently decide the matter presented.

Q: What should attorneys and their clients take into consideration when vetting and/or selecting an arbitrator?

A: Depending on the matter in question, the selection of an arbitrator may turn on whether the parties desire an inquisitive active arbitrator or passive one. I tend to be inquisitive and appreciate counsel addressing my queries. To enhance this process, before hearings on motions or final argument, I often provide questions ahead of time that I would like counsel to be prepared to address. This ensures they know what issues I believe may help decide the matter and gives them an opportunity to suggest why those matters or impressions are not necessarily controlling.

Q: What measures do you take as an arbitrator to ensure arbitration is less costly and more efficient to litigation?

A: If the parties are so inclined, I allow direct examinations to be submitted in writing in advance. During the hearing, there is only a brief summary for opening examination, followed by cross. This allows the offering party to get in their case the way that they want it, while allowing the opposing party time to assess and plan cross and is usually much more efficient. I also allow “dueling experts” if the parties are amenable.

Q: What role should traditional rules of evidence play in the arbitration hearing?

A: More often than not evidentiary logic goes to weight rather than admissibility. I find that few counsel object to admissibility because of the risk of having to redo the matter if some offer is improperly excluded from an arbitration. On the other hand, attorneys shouldn’t offer exhibits if they are not going to meaningfully refer to them. Unlike Judges, arbitrators are usually paid by the hour, so Counsel might wish to advise their clients that every exhibit has an associated cost of the Arbitrator's time studying it.

Q: What are some of your interests or hobbies outside of your ADR Neutral practice?

A: When not practicing or arbitrating, I hike around the world in areas with significant natural history, from the Arctic National Wildlife Refuge and Bhutan to the Dolomites, Tasmania and Patagonia, plus of course Hawaii and the National Parks of the USA. I played Lacrosse until age 52 and co-founded the Hawaii Lacrosse Club. I have served on the boards of a number of construction companies, many non-profits and as a trustee of a Pre-K-12 Independent School of 1,500 students for 21 years and as its Chair for 4.


Friday, June 11, 2021

Mastering Rule 30(b)(6) and the New Confer-in-Good Faith Requirement for Construction Corporate Representative Depositions

The recent amendment, effective December 1, 2020, to Federal Rule of Civil Procedure 30(b)(6), provides:

Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a non-party organization of its duty to confer with the serving party and to designate each person who will testify.

Practitioners knew some form of change would come due to the absurd amount of stonewalling and abuse to minimize the impact of a corporate representative deposition as well as the contentious gamesmanship to obtain impermissibly broad discovery from an opposing party. For many, 30(b)(6) was kicked to the side or treated as the “forgotten rule.” (Mark A. Cymrot, The Forgotten Rule, 18 Litig. 3 (1992) (discussing the failure of litigants to use Fed. R. Civ. P. 30(b)(6) for the 20 years after its promulgation).) In the context of construction litigation, which is usually highly contentious, complex and multi-faceted, the conferral requirement provides litigants another opportunity to streamline issues in order to focus on the heart of the matter. 

Litigants can either embrace the rule by maximizing the opportunities conferral brings or continue to deal with disputes and motion practice premised upon inadequately prepared witnesses and ambiguous topics incapable of putting any reasonable person on notice regarding the information sought. For many construction lawyers, the amendment is not a shocking change from best practices as construction law continues to be one of the more collaborative areas in litigation. But the amendment did send waves throughout the legal community since it has not had any significant modifications since its adoption in 1970. 

Plaintiff’s expressed concerns regarding their inability to prepare for corporate examinations hindering their success in utilizing 30(b)(6) and defense counsel expressed similar discontent regarding the overreaching of the rule, “gotcha” moves, the incredible expenses of preparing designees, and the similarly high expense of investigating which designee or designees should testify as to each topic noticed or provided. 30(b)(6) depositions are binding; therefore, preparation, understanding the topics and proper witness designation is key. 

The amended rule instructs parties to confer concerning the matters of examination, but it does not preclude further matters for conferral. Therefore, the sky is the limit. After six months in the wild, what we suspected to occur is true—the good, the bad and the ugly. Productive construction related 30(b)(6) conferences have enabled parties to identify issues and focus on what topics the deposing party intends to cover, why each side believes the matters of examination are meritorious or not, and alternatives to the deposing party’s specifications in pursuit of resolution of the dispute. Uncooperative parties have certified intentions and efforts to confer without success. 

The rule does not mandate specific designees be decided upon. In fact, it was considered and rejected in a proposed amendment. However, the topics and/or areas of inquiry continue to require painstaking specificity. Conferral topics may include date and time of the deposition, duration, method (in person, remote, video, etc.), topics and specification. 

Parties receiving a notice or subpoena should:
  1. Meet early and actually confer;
  2. Focus on specifying the noticed topics to eliminate confusion and ambiguity;
  3. Confirm that proper entity was selected; and
  4. Designate appropriate deponent(s).
Is this the only option to gather information about an organization? No; this is one tool in your toolbox. 30(b)(6) depositions do enable litigants to nail down the opposition’s position and to determine defenses and theories. However, this tool is not a case determinant. 

Furthermore, the amendment does not mandate that parties must reach an agreement—it requires good faith efforts to confer. Many proponents for additional rule components vehemently opposed the revisions arguing that although intentions are good, the amendment is not going to change much at all. However, the goal was to avoid disputes about “overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses.” 

The rule change is an attempt to reduce one aspect of discovery that can result in satellite litigation. Lawyers defending corporate deponents should use this new arrow in their quivers to shoot down overly broad topics. For those noticing corporate depositions, this rule change underlines what should have been the practice previously – sharper, narrower topics are better topics to get binding testimony for use at trial.

If you are interested in further discussion about this topic, please join the authors on June 16, 2021, for the Webinar CLE sponsored by the Forum called “Mastering Rule 30(b)(6) and the New Confer-in-Good-Faith Requirement.” Just click the link to sign up. 

Author Anthony D. Lehman is a partner with the Atlanta, GA office of Hudson Lambert Parrott Walker, LLC. He is licensed in Georgia, Florida, and Alabama and is Board Certified in Construction Law. He is a past chair of Division 1 and is a member of the ABA Forum on Construction Law’s Governing Committee.

Author C. Jade Davis is an associate attorney with the Sarasota, FL office of Shumaker, Loop & Kendrick, LLP. She is experienced in representing manufacturers of building products and engineers in all phases of construction litigation and trial.

Friday, June 4, 2021

What to become a AAA Arbitrator / Mediator? But don't know how? Join Us on June 30th at 3PM ET

Have you ever thought about what it would take to serve as a Construction Arbitrator or Mediator? Do you think you have to wait until the end of your career to pursue an ADR Practice? You don’t. Most arbitrators on the American Arbitration Association (AAA) Construction Panel still maintain a full-time practice. 

On June 30th, Division 1 (Litigation & Dispute Resolution) is teaming up with the AAA, Construction Litigation Committee of the ABA Section of Litigation, and the Forum's Diversity + Inclusion Committee for a virtual program on how you can design your career path to have a successful neutral practice.  Our panelists from the AAA, Forum/D1, and CLC will discuss what it takes to be an arbitrator or mediator with the AAA's Construction Panel, give tips for building the type of experience that the AAA looks for and offer insight and advice for building a successful ADR practice. Understanding that parties often seek diverse viewpoints in dispute resolution, the AAA has made a concerted effort to attract and mentor diverse arbitrators and mediators. During this session, the Panelists will discuss the training and continuing education offered by the AAA to its panelists, as well as its mentoring program.

It is never too early to start planning your career goals and aspirations.  We hope you join us for this discussion.  There will be time for questions at the conclusion of the program.  

REGISTER

Questions about this program or Division 1 in general, contact me, Tom Dunn, Division 1 Chair, at rtdunn@PierceAtwood.com.  

Wednesday, June 2, 2021

Return on Investment of Construction Claims: How to Best Advise Clients on Legal Strategy in Construction Claims

On March 31, 2021, Division 1 held a program with DPA on Construction Claims. The program focused on process from the start of the claim through dispute resolution.  If you missed the program, please watch the video here.  


 Thanks to Brenda, Marc, and Philip for putting together this program for us.



Tuesday, June 1, 2021

What's Up at Division 1 (No. 11)

Our May Toolbox Talk Series was great last month.  David Ponte and Joe Wallwork from Nautilus discussed discovery tips in Delay Claims.  They provided the attached listing of documents (shown below) and explained the most important documents to obtain to evaluate delays.  

In addition to the documents, they explained how experts can be very helpful in attending and preparing for other expert depositions.  Thanks David and Joe for leading that discussion.  

Our next TTS is scheduled at its regular time (4th Thursday at noon eastern -- June 24th).  Be on the lookout for the registration email on that program.  If you have a TTS topic or would like to contribute to the planning of these programs, please reach out.  

In addition to our TTS, Division 1 and the Forum has some great events coming up in June including:


Want to join the fun with Division 1 -- join us for our next D1 monthly call on Monday, June 14, 2021 at 3PM ET. 

https://americanbar.zoom.us/j/6691783882?pwd=NUh3SE42eWMrc0ZrdW5pdEgyMFo0Zz09

Meeting ID: 669 178 3882  |  Password: 826501 

I hope you all had a great Memorial Day Weekend!  In New England we had weather in the 40s, freezing rain, 50 MPH wind gusts, and very little sun.  But, we fought through the nasty conditions and made the best of it in our winter clothes (even fishing)!  Below is a photo of my kids fishing on Cape Cod (we caught a bunch of Sea Robins -- weird fish).  


As always, if you want to learn more about Division 1, please contact me.  

Division 1 Chair
rtdunn@PierceAtwood.com