Arbitrators Writing Long Opinions - What are your thoughts?

| 15 Comments

Do some arbitrators write opinions that are unnecessarily long and, if so, is that unethical?

Please provide your thoughts/comments below.


15 Comments

I believe that the length of each opinion is "case dependent". If a case is for $25,000, one would not expect a ten page opinion; if it is a complicated fact and legal intensive $200 million case, then a lengthy opinion may very well be justified. Dispositive motion rulings, where the parties have submitted detailed briefing based on legal issues, should, in my opinion, have a discussion of the relevant statutes and case law; and not just a bare-bone ruling finding for one side.

It's hard to spot an ethics issue. Is the suggestion that the arbitrator is writing a longer award to bill more hours? That may be a false assumption. See quote attributed to Blaise Pascal: "I would have written a shorter letter, but I did not have the time" (Je n'ai fait celle-ci plus longue que parce que je n'ai pas eu le loisir de la faire plus courte.).

It is not unethical to write long opinions but it is unnecessary. I just read an article that Judge Posner wrote. In it Judge Posner states that lawyers should learn to write simpler sentences and briefer briefs. I find that long opinions give the lawyers lots of reasons to try and overturn the award, especially if there is an incorrect statement in the opinion. Be short and to the point. As we say down here in Texas, "Rule and run!"

To state the obvious, opinions should be only as long as necessary to resolve the issues clearly and grant appropriate relief. However, I don't see a connection between long-windedness and unethical behavior unless the arbitrator bills for time unnecessarily expended.

Yes, some arbitrators do write opinions that are unnecessarily long. I doubt that this is somehow unethical, but it is both dangerous and potentially destructive to the concept of timely and cost-effective arbitration. With the growth of arbitration, so has grown the boutique practice area that I call "Larbigation." Traditional litigation in the arbitration context. I also note that it is popular now for litigators to feed off "failure to disclose" situations, "exceeded authority" situations and any other method they can find to vacate an Award now that manifest disregard is a doubtful basis. So, the less said, the better the Award. I do not think I have ever seen an Award vacated because it was to succinct.

Actually, it depends upon the nature of the case. In an employment or contract interpretation matter where there are complicated and disputed facts the parties may need resolution of multiple issues. In other matters it may not be necessary.
I dont really understand the ethical issue so I will not speculate.

Except, perhaps, in the case where an arbitrator simply burns time by writing an unnecessarily long opinion for the purpose of making money, this is not an ethical issue.

Every word in an award is a possible basis for further litigation. Only the words necessary to arrive at the result should be in the award.

Maybe I am overstating the obvious but an opinion should resolve the dispute and reveal how the arbitrator fulfilled the assigned duties. Style and substance are important ingredients of a good "ethical opinion" and in my view, the length of an opinion does not determine whether its ethical. Sloppy writing shows that the arbitrator put insufficient time into writing the opinion; perhaps sloppy writing creates an opinion that's "unnecessarily long" but not unethical. An opinion with a slanted version of the facts or gives short shrift to a seemingly meritorious argument suggests that the arbitrator did not explore both sides of an issue, is a poor opinion but that may not be unethical. Lambasting or lampooning lawyers or litigants might indicate bias and that may be unethical.
In every opinion, I try to precisely, simply, and concisely state the rule on which the decision turns and articulate the award.

I agree with the comments to date.
It is harder to write shorter opinions, so in the long run a longer opinion might end up costing the parties' less money.I have heard of one case where it was alleged the arbitrator deliberately wrote long opinions to pad the bill.
That , however, has not been something I have seen.

I agree with the view that, as with any opinion, the length of the opinion must be case specific. Length depends on the issues raised and whether they involve fact finding as well as a pure legal analysis. I do not feel comfortable with unreasoned opinions because, in my view, a statement of reasons focuses the decision and avoids the ability to be arbitrary (or perception of that possibility). When giving reasons, you must be able to state what is necessary to satisfy the author that he or she has explained why the decision is warranted and appropriate. I suppose that may, in some cases, be deemed excessive, but the author should consider length as part of the endeavor to make the opinion clear and understandable.

Well, if it is unnecessarily long, it is inefficient, but it is not unethical unless it's done with intent to pad the arbitrator's invoice. But reasonable people can and do differ on what is unnecessarily long.

In addition to the great points made by others ... I think it's important to memorialize the facts and findings contemporaneously with the award. Even if it's not billable time.

The only ethical aspect I see in award writing is where the arbitrator bulks it up to enhance the fee charged. And the more you write, the more there is to challenge later on by the 'losing' party. It's human nature for us to expound on our reasoning to make sure the parties know we were listening and took into account all the evidence they thought was important. But the Association cautions against unasked-for reasoned awards.

When I first came on the AAA panel, back in the early 1990s, reasoned opinions were the exception. Now they are the norm. In part, this trend changed because parties wanted to understand the result. In part, the change occurred because the caseload, over the years, became more complex and a simple one line financial award was no longer appropriate. I always ask parties if they want a reasoned opinion in preliminary hearing. If they do not request one, but I feel that some explanation is needed, I try to keep it succinct. Even if parties do request a reasoned award, that does not mean that the panelists or solo arbitrator should not endeavor to keep the opinion limited by necessity. At times, panelists may disagree internally on the need for explanation. Sometimes, chairs will also have different parts of the reasoned opinion drafted by different panelists. In all cases, it is the chair's job to review the opinion and ensure its length and content are appropriate and even-handed throughout the opinion.

Opinions can be too long, and the more you write, the more potential pitfalls in terms of appeal. When opinions have a tone or unnecessarily seem to praise or criticize a party, they become more vulnable to claims of prejudice.

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This page contains a single entry by Jeffrey Zaino published on January 25, 2017 10:49 AM.

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