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Limitations on issues to be briefed - What are your thoughts?

Should an arbitrator put strict limitations on issues to be briefed?

Please provide your thoughts/comments below.

Comments (14)

No, the limitations should be designed around the issues to be clarified and the limitaions on page length, etc. is of no value if the issue is not clearly evaluated.

Thus, arbitrary limits are of no use as I see it.

If the brief is long and develops issues in the case, it may save time in the long run.

I believe briefing is best limited to law issues. Factual "briefing" is really just argument. I prefer specific and full recitation of claims and defenses (which helps focus discover by the way) and briefing only on issues of law on which I need some direction.

An arbitrator should address the issues being presented, and should allow the parties to brief them in their own manner. However, I have given suggested outlines for parties to cover in their briefs (in addition to their own presentations), such as: 1. Identifying undisputed facts; 2. Identifying disputed facts and each party's position and prospective evidence on the disputed facts; 3. Identifying undisputed issues of law; identifying disputed issues of law and each party's positions, with legal authority.
At the end of the mediation, i may ask for closing summations, in writing. I will outline what I would like to see, in addition to what the parties may want to say, after I have heard the entire case.
---Eli Uncyk.

Robert E. Barras:

As an a practicing architect and AA neutral I especially like the comments of Eli Uncyk on the matter of briefs.

There is no single answer to this question. What the arbitrator should do should be tailored to the particular case. Some cases do not require extensive briefing. In other cases, extensive briefing is helpful or even essential. Page limitations are fine, if tailored to the issues to be covered. The arbitrator should be realistic, and expect the same of the parties.

When the parties' attorneys cannot agree on a point of law that affects evidence production or even the hearing itself, I find that briefs can be very helpful. But I prefer to keep them short and sweet, because verbose ones with voluminous citations cost their client money and don't often give better guidance to the arbitrator(s) than a short one.

Arbitrators can, and should, ask for briefing on issues they consider relevant to the dispute. Precluding parties from briefing any issue that remains disputed in the case would not, in most cases, make any sense.

Judge Gerald Harris:

I believe it is a service to counsel to identify those issues which the arbitrator feels a need to have briefed; it spares them the task of expending unnecessary time and effort and enables them to better focus their briefs on areas most likely to dictate the result.

Martin Scheinman:

Not so sure about "strict limits". But, I believe the arbitrator in certain cases assists the parties by indicating "this or these are the issues I'd like you to address in your brief" or "while I will not preclude it, I don't think it's necessary for you spend your time on this or these issues as the presentation suffices for my purposes".

Marty Scheinman

Hon William G. Bassler:

I think page limitations are appropriate.
And saying I don't need briefing on such and such an issue.
But what is to be gained by denying a party the opportunity to brief an issue it thinks needs to be briefed.
And don't you risk vacatur on the grounds of arbitrary and capricious if it turns out to be an IMPORTANT issue ?

I only have the parties brief the legal issues I request be briefed - which of course sets a limit.

Edwin H. Stern:

My experience is still somewhat limited in arbitrations which have been tried to completion. But prior experience in other respects can impact on my decisions at this point.

As with everything else, the answer to the question concerning page limitations depends on the circumstances. If there are pre-hearing briefs, I generally impose no page limitation, or no short page limitations. The discussion may result in identification of issues, or some applicable legal theory, that might not otherwise have been expressly noted.

An evaluation of those briefs may impact on whether a page limitation is required on subsequent briefs. In final submissions, I often request findings of fact and conclusions of law, or at least that specific issues be addressed in addition to what the parties may develop.

In any event, I usually ask counsel to give their point of view on these questions before deciding how to handle the matter.

I agree that briefing is best limited to issues of law. I usually ask the parties to brief specific questions, and rarely see a need to impose other restrictions. To the extent a party cites applicable state and federal statutes and/or persuasive case law to support the facts (stipulated or in dispute) I'm fine with that.

Bernard Chanin:

Aside from the situation in which the arbitrator seeks some specific direction from the parties and thus asks counsel to brief a certain point, I think the parties should be permitted to brief the case in the fashion they think most effective. The process continues to belong to the parties and the judgment of the lawyers as to what is most effective in presenting their positions should generally be respected. All forms of dispute resolution whether litigation or arbitration involve some form of creativity and arbitrators should not stifle counsel's instincts in the interest of some personal preference or theoretical goal of efficiency.

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This page contains a single entry from the blog posted on July 14, 2016 11:57 AM.

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