Washington Lawyer - March/April 2025 - 31

H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H
SPECIAL SECTION
the Law Offices of Andrew Marks PLLC and former D.C. Bar president
(1998-99). Marks has been serving on ACAB for more than 40 years, starting
when he first launched his legal career as a litigator in the early
1980s.
Marks says ACAB presented a great opportunity to practice something
that he believes in. " Many lawyers, from [those in] very big firms to solo
practitioners, want to have the ability to require a client to arbitrate a fee
dispute instead of going to court, " which could be both more time-consuming
and expensive, he says.
Another longtime volunteer was Harold Kessler who, until September
last year, spent 31 years on ACAB as a nonlawyer member. Kessler
brought to ACAB his decades-long work experience in federal agencies
that administer labor and employee relations programs, including the
U.S. Department of Labor and the Federal Labor Relations Authority.
Kessler's expertise as a field examiner with the National Labor Relations
Board investigating unfair labor practices also proved invaluable to
ACAB. " A field examiner goes out and finds relevant witnesses to events,
[and] then asks them questions, "
says Kessler, who also served as
volunteer arbitrator for the Better
Business Bureau and the
Montgomery County (Maryland)
Merit Systems Protection Board.
" I'm someone who can process
facts regarding fee agreements
without falling into some bias. "
" I came to believe in the power
of parties reconciling their own
beliefs, " says Kessler of his motivation
in joining ACAB. " Arbitration
is superior to [having] long,
extensive court trials with high
legal fees. "
HAROLD KESSLER
Former ACAB Volunteer
During his time on ACAB, Kessler
served as either an arbitrator or
mediator on approximately 60 cases. " He is a skilled neutral who easily
devoted hundreds of hours in volunteer service to the D.C. Bar and community, "
Lewis says.
Kessler attributes his long service with ACAB, in part, to the D.C. Bar's
staff. " The staff has always been great, " he says. " They're just people you
wanted to work with and people you wanted to be helpful with. "
OPPORTUNITY TO DELIVER JUSTICE
Those who are unfamiliar with alternative dispute resolution might assume
that most arbitration rulings will be favorable toward attorneys,
but this is not the case, says Marks. In fact, arbitrators can be tougher on
lawyers than on clients.
" It's because the lawyers understand what lawyers should do, " Marks
says. " When they see a lawyer who has not done as good a job as they
might have done in terms of keeping their time, recording their time,
and communicating with the client, the lawyers on the panel are actually
tougher on the lawyer. "
" Should you have billed for that? How much time did you bill for that? "
are some of the questions that Marks has posed to attorneys in arbitration
proceedings. " Having that background experience [about the billing
process] is helpful because an arbitrator will be hearing the back and
forth between a lawyer and a client about what the client expected and
what the lawyer expected, " he says.
Conversely, nonlawyer arbitrators tend to be harder on clients, says
Marks. " 'You should have asked that question. Why did you not ask that
question? Why did you wait until the end?' [These] are some of the
things that a layperson arbitrator will often ask, " he says.
The rules of evidence are also much more flexible in arbitration proceedings
than in court, Marks points out. " An arbitrator will be more open to
hearing evidence that might not be allowed in a court of law - hearsay,
for example, or documents that may not be authenticated as well. The
arbitrator, therefore, must be able to parse what is reliable and what is
not, what is persuasive and what is not. A lot of times, it comes down to
a credibility issue, " he adds.
Nonlawyer arbitrators bring a lot of value into these proceedings, according
to Hatcher. " I think nonlawyers probably don't have to think
about taking off the advocate hat, " Hatcher says. " I really think the nonlawyer
arbitrators bring as much to the table as the lawyer arbitrators. "
Expert listening skills, patience, and diligence are crucial for good arbitrators.
" Also, a real awareness of what the role of an ACAB arbitrator is and
the scope of the issue being resolved, " says Hatcher, ACAB chair since
July 2024. " It's keeping in mind the reasonableness of the attorney's fees
and controlling the hearing in such a way that all the information - the
testimonies solicited from witnesses and parties - [helps get] to the
heart of that issue. "
The decades-long service of some of ACAB's arbitrators is a testament to
the rewards of volunteering on the board. Real-time training in dispute
resolution can benefit any lawyer, Marks says, especially one looking to
sharpen their litigation skills.
Marks says his experience with ACAB also has provided him a better understanding
of how clients view their relationships with lawyers and the
whole billing process. " As a lawyer, it helped me understand the importance
of really keeping the client informed, sending out bills timely, and
not waiting until the end of a matter. Send it out timely because, that
way, if the client has a question, they can raise it, " he says. " Also, it taught
me to be proactive with clients to make sure they understand the attorney-client
relationship. And if there is an issue, deal with it early. Don't let
it linger. "
Hatcher began volunteering with ACAB in April 2019, inspired by a desire
to lend her legal expertise in a pro bono capacity but also to gain experience
for joining the bench one day. " I thought this would also be good
practical training for potential service as a judge, " Hatcher says.
Serving on ACAB has also taught Hatcher how much clients entrust lawyers
to resolve their issues. " The conflicts that I see in arbitrations remind
me of the important role that lawyers play in society, " she says. " They
play the literal role of advocating for their clients, but they also serve a
symbolic role by representing the opportunity for justice. "
Reach D.C. Bar staff writer John Murph at jmurph@dcbar.org.
MARCH/APRIL 2025 * WASHINGTON LAWYER 31
John Murph
Washington Lawyer - March/April 2025

Table of Contents for the Digital Edition of Washington Lawyer - March/April 2025
