Developing an Opening Mind
Chess players and advocates have the opposite problem in dealing with the opening: chess players spend too long preparing the opening and many advocates do not spend enough. The best chess player in the world, Magnus Carlsen, often treats the opening phase of a chess game as simply a way to get into the game whereas lesser players spend hundreds of hours memorizing opening moves in order to squeeze the tiniest advantage out of the opening; superior advocates know that the opening is like a job interview where you try to make the best first impression.
The opening is your opportunity to set the parameters of the battle. It is your opportunity to tell the adjudicator why you are going to win the case. While there are elements every good opening statement will have, there is a lot of freedom. It really is about telling a good story and explaining how you are going to prove it.
The opening statement and the chess opening are not so different. Just like in chess, at arbitration you can use the opening to get an advantage. Like in chess, most often you are not going to win or lose because of the opening. However, also like in chess, a bad opening can sink you. A bad opening sends the wrong message and can tie your hands later.
In chess the basic goal is to move (to develop) your pieces onto squares where they are most effective later. At arbitration, you reveal the pieces of your case so that the adjudicator understands right from the start how you are going to win.
Usually, a good opening statement will:
state a theory of the case
provide a general outline of each witnesses’ anticipated evidence
be concessionary where appropriate- for example, if you represent the union and you think the grievor deserved some discipline (but not what was imposed) be clear about that
not be too long and not too short- this is your first chance to convince the adjudicator that you have a winner. Don’t waste it by being boring or by glossing over (or omitting altogether) the strengths of your case
explain and justify the remedy sought
It is generally acceptable to refer to the documents which underlie the dispute: the collective agreement, the discipline letter, the grievance etc. In my view, unless there is some serious issue about proving a document or if its veracity is in dispute, it is also acceptable to refer to important documents in the opening. If the case revolves around a particular document, I see no reason not to refer to it and explain how it will be put into evidence. Documents are also frequently put into evidence in opening on the consent of the parties; speak to the other side first.
It is fairly unusual for an advocate to refer to caselaw in their opening statement. However, there are circumstances where it is clearly appropriate. For example, if the case is about an employer imposed rule, the parties may well refer to the “KVP criteria” in support of their respective positions (“KVP: is an arbitration award which determined the criteria which must be satisfied for an employer rule to be enforced). That being said, in only the rarest of cases would it be appropriate for a party to actually provide a copy of a case in the opening. Such a circumstance may be where the case is essential or central to the dispute; perhaps where an award reinstated an employee to employment on conditions and it is alleged the conditions were violated or where there is an award on the same issue between the same parties.
Where advocates most frequently mess up the opening statement is when they do not describe a theory of their case. A failure to propose a theory suggests a lack of proper preparation, a lack of confidence in the case or a failure to even have developed a theory. These problems can be overcome, of course, as the case develops, but, this is usually a bigger issue for union counsel than for management counsel. Often, and always in discipline cases, management counsel is “stuck” with the theory of the case mandated by the employer’s actions. Union counsel usually has more freedom, but also has other factors, like a disagreeable grievor, that can throw a wrench into the development of a viable theory. Neither side should promise more than it can deliver.
Finally, you should understand your goal in making your opening statement. Often you are using the opening to lay the groundwork for winning the case. But there can be other objectives. Perhaps you want to use the opening as an invitation for getting the arbitrator involved to facilitate a settlement; maybe you have a losing case or you are concerned that litigating the issue will damage the parties’ relationship. It could also be that you think there are no facts in dispute and you want to use the opening to lay out your case in detail to encourage the other side’s agreement that those are the facts and obviate the need to call evidence.
Remember you are telling a story. You want it to be interesting and compelling not boring and lacklustre. You want it to be prepared but not look prepared; you must think ahead like a chess player. It must be taken seriously, not blown off.
As an aside, my favourite chess opening is the King’s gambit. You start the fight with your second move by sacrificing a pawn to get a strategic advantage. You are saying to your opponent: “I can beat you with one less pawn”. It is usually not a good idea to sacrifice a pawn in your opening statement.