TIPS FOR TRIAL AT THE ASBCA

Here are ten tips for trial at the Armed Services Board of Contract Appeals written from the perspective of the appealing contractor:

1. File your complaint with your notice of appeal.  You should know enough about the case to construct the complaint so there is no need to wait for the notice of docketing.
2. If the government has the burden of proof, consider filing a motion requiring the government to file the complaint.  But do this only if you do not understand the government's position.
3. Set a trial date as soon as the Board permits.  You need an end date to push against in order to move the case along.
4. Forget interrogatories.  They are a waste of time.  Narrow a request for production of documents only to those necessary to prove your case.  But be persistent.  Production of documents and supplementing the Rule 4 File is important.  Consider a deposition of the contracting officer who wrote the final decision.
5. Consider ADR.  However, the government likely will not agree that it be binding.  If agreement is not reached, you likely have delayed the trial date.  Mediation can be an excellent way to conduct discovery.
6. Use settlement discussions as one of your primary discovery tools.  Open, honest and sincere discussions often expose and narrow the issues.
7. Carefully craft your opening statement.  This is your opportunity to explain the case to the hearing judge.  Oral closing arguments are discouraged since the case will be decided on the record and written briefs are the rule.
8. Prepare, prepare, prepare for trial.  You must move the trial along smartly.
9. Limit cross examination to leading questions to which you know you have an answer from the documents.
10. Ask for simultaneous briefing if you have the burden of proof.  If the government has the burden, sequential briefing will give you the last word.

bill@spriggsconsultingservices.com       bill@spriggslawgroup.com