I have been asked to write about responding to umpire questionnaires and tracking cases for conflict review, including issues regarding affiliated companies and transferred books of business. As is common practice, I have always kept an arbitration log, which grew in detail as disclosure requirements also grew. The log listings included the parties as I understood them, the attorneys and law firms, the date and type of my appointment (whether as a party appointed arbitrator or the umpire), the identity of the other panel members, and whether the matter settled or went to a hearing. I later added whether there was an organizational meeting and the primary contacts at the client. The older my case listings the less specific I was, making my responses in certain questionnaires less specific as well.
For those who wish to use the list as a case management/docket diary, you can add columns to track the date you were retained, your hourly fee and retainer (if any), and the next event coming up in the case. The last category, which changes as the case proceeds, is especially important since it forces you to refer back to and update the list regularly. And finally, you can add a column entitled “Subject Matter of the Case,” and insert the response typically given to the same question in an umpire questionnaire. This information is useful since umpires are often asked if they ever handled the same type(s) of issues(s) in a prior case.
To a large extent, I rely on counsel to provide information on companies affiliated with the named parties to the arbitration. Keeping track of transferred books of business is tricky, partly because it is not always known, and partly because some transfers are for a limited period of time after which the book reverts to the transferor. Again, I do rely on counsel to highlight those facts if they consider them important when completing the questionnaire, I expressly admit that I initially did not keep track of situations where one company was running off another and concomitantly if a third party was doing the runoff. I try my best to recollect the number of times that was the case. As I learn that information, I add it to my log.
To make completing the questionnaires easier, I keep Word copies of my contacts with companies and the type of company it was, such as an insurer, reinsurer, broker, underwriting manager, etc. and the allocation or number of times the dispute was between any of these. Each is a separate word document that I update periodically.
I periodically revisit the log as I learn more in each case. One thing I never do is try to summarize the dispute in the log.
Finally, I don’t view the questionnaire as the final disclosure or the last word as it were. Frequently, as the case proceeds, additional facts emerge or new people appear as either employees or witnesses. If these facts or appearances present a possible conflict I disclose them.
