Arbitrating the ARB Appeal
Texas property owners who are dissatisfied with the decision of the Appraisal Review Board (“ARB”) have appellate options. One of those options is to appeal the ARB’s decision through the court system. Another is to appeal through arbitration.
There are an infinite number of reasons why a property owner would choose to arbitrate rather than litigate, but high on the list likely is the fact that arbitration is designed to be a more expeditious, less procedurally-formal, and cost-effective path to resolution.
There is, however, an important similarity. Like a judge, an arbitrator is an impartial, independent third-person whom the parties are asking to resolve a dispute. And like a judge, the arbitrator’s decision is based solely on the evidence and testimony provided by the parties and nothing else. It is important, therefore, that the parties come to the arbitration hearing well-prepared to succinctly present and prove their respective cases.
To that end, the following are some things to think about in preparation for the evidentiary hearing in an ARB appeal arbitration.
- Remember that an arbitration hearing is not an ARB panel hearing. Unlike an ARB panel hearing, there is only one decision-maker in the arbitration. The arbitrator also is – very likely – not hearing multiple appraisal cases in a day. As a result, the parties can expect to be afforded ample time to present testimony, argument, and evidence without the kind of restrictive time limits typically imposed in an ARB panel hearing.
- Once the arbitrator is appointed, disclose in writing the names of all witnesses and persons who have a connection to or financial interest in the outcome of the proceeding. This will assist the arbitrator in satisfying duties to disclose known or potential conflicts of interest and/or to decline an appointment in which the arbitrator would be legally or ethically disqualified. See 34 Admin. Code § 9.429(f) and (g) and Tex. Civ. Prac. & Rem. Code § 171.088.
- The parties should provide the arbitrator with a written summary of their respective positions, citing the relevant facts, and legal and/or non-legal authorities relied upon. At a minimum, the summary should include a brief statement of the relevant facts, cite relevant authorities (and attach a copy with relevant portions highlighted), and explain how those authorities and facts persuasively lead to the requested proposed valuation.
- Mark each exhibit with a descriptor to assist the arbitrator and other party through the evidence at the hearing. This is especially important in remote hearing (as discussed in #7 below). Parties should use a numbering system that includes a prefix and number (e.g., OWNER 001 or XCAD 001) to differentiate between the parties’ evidence packets. [See also #6 and #7 below.]
- Arrive early to the hearing and be prepared to make opening remarks. Even if the hearing is remote, it is wise to arrive early so time is not wasted checking and, if necessary, repairing audio connections. Once the hearing is opened, be ready to make a brief opening statement. The opening statement should provide the arbitrator with a summary of your position. That position is not simply the appraised value that you want the arbitrator to award. The summary should provide the arbitrator with a glimpse of why there is a dispute and what the key evidence and testimony is expected to show.
- When presenting evidence and testimony: Show, don’t’ tell. And don’t rush or talk too fast. Remember, the purpose of the hearing is to educate and persuade. Take your time and walk the arbitrator through the testimony and evidence at a pace that allows the arbitrator to digest what is being presented and to take notes. Most ARB arbitrations are not recorded with audio or video equipment, which means that it is important that the parties provide the arbitrator ample opportunity to hear and understand the testimony, evidence, and arguments. Talking too fast and not repeating the key points of your position risks failing to clearly communicate yours or your client’s position. See also #2 above and #10 below.
- Guide the arbitrator through the evidence. When presenting evidence, guide the arbitrator through it by referring to the Bates numbered page and “checking in” with the arbitrator to make sure s/he is following the presentation. Again, this is especially important in remote hearings. Parties should bring the arbitrator and the other party along with them through the presentation. For example, say something like: “Let’s turn to page 12 of the packet and focus on the section at the bottom.” Pause and let the arbitrator and the other party turn to that page and “check in” by saying something like: “Let me know when you have that page open….” Then proceed with the testimony.
- Cross-examine the other side’s witnesses. It’s not always necessary to cross-examine a witness, but when it is, don’t skip it, even though it may feel awkward. Cross-examination need not be confrontational to be persuasive. Cross-examination is an effective way to demonstrate purported flaws in the other side’s evidence or analysis. It is an opportunity to highlight and educate the arbitrator about those points in your opponent’s position that may be unreliable, irrelevant, immaterial, or otherwise unpersuasive.
- Present a rebuttal and do it in an orderly and brief manner. Before the hearing, anticipate what the other side may say. And, while it is presenting its case-in-chief, listen closely, and take notes. Be prepared to provide rebuttal evidence, testimony, and/or argument to clarify or correct the record as deemed appropriate.
- Present a closing argument and do it convincingly. Never decline the opportunity to summarize and argue why you should win. Walk though the evidence and testimony that was presented and explain why the arbitrator should agree with one proposed valuation and disregard the other.
A good rule of thumb is to follow the three-step process often used in public speaking. First, tell the arbitrator what you are going to tell her. Then, through the testimony and evidence, show and tell her what you told her you were going to tell her. And finally, in closing, tell her – again – what you told her, but add a persuasive conclusion stating why she should enter an award in your favor.
Felicia Harris Hoss
is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with almost 25 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.
