Meet D1's Neutrals Series:
KENNETH R. KUPCHAK
Company: Damon Key Leong Kupchak Hastert
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.