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Arbitrators Receiving Evidence Before First Oral Hearing - What are your thoughts?

Should arbitrators receive evidence, such as expert reports, before the first oral hearing on the merits?

Please provide your thoughts/comments below.

Comments (7)

There is no single "right" answer to this question. It should be resolved collaboratively with counsel for the parties who can decide how much efficiency they want to trade for traditional presentation of evidence. Generally, it does no harm for the arbitrator to read the reports in advance, provided the ultimate decision of the credibility of evidence is tested by cross examination, as the parties have a right to expect.

I sometimes will receive expert reports prior to the oral hearing on the merits, but I will only review them to get a general sense of their import, waiting until closer to the actual testimony to study more fully.

I ask not to see regular exhibits until they are introduced at the hearing, as reviewing those without context would be a waste of time.

I also ask the parties to submit concise prehearing briefs (at least a week before the scheduled hearing), in which they outline what they intend to prove, without actually submitting evidence at that time.

As to other pre-hearing evidence, it is of course helpful to review the contract between the parties, important not only for the dispute resolution clause but also to get a sense of the parties' relationship and the areas of dispute.

In some instances, after agreement at a preliminary hearing incorporated in a scheduling order, I might receive written witness statements in lieu of direct testimony, with oral confirmation and summary at the hearing and full cross examination of the witness at that time.

Hon. William G. Bassler:

I never thought this to be an issue. In all the arbitrations that I have engaged in since leaving he federal bench in 2006, the Panel/Tribunal has received the expert reports in advance of the hearing.

It helps to read the reports in advance in order to better understand the examination and cross of the reports and to ask informed questions of the experts.

A question that I would like to see discussed is whether the expert reports should themselves be admitted into evidence.

Judge Gerald Harris:

My practice is to review documents provided at the time the invitation to serve is received, including the agreement, to determine whether there is any conflict of interest or need for disclosure. Generally, I do not review exhibits in advance of the hearing to avoid forming any preconceptions. Exhibits should be viewed in context and after determining admissibility. However, an exception is probably in order for the reports of experts since a careful review is likely to be time consuming and may facilitate a better understanding of technical testimony at the time it is offered.

Prior to the first hearing date, my practice is to receive evidence on the merits only with counsel's joint consent.

Pat Westerkamp

I agree with Judge Bassler. I always ask for expert reports of all experts who will testify as well as the exhibit notebook of all documents to be introduced, at least one week before the Hearing.

Robert E. Barras:

I too generally agree with Judge Bassler, but in construction disputes there exist experts from many different fields outside of design and construction. Pre-hearing review of reports with the parties attorneys can shorten hearing time as well as helping to make decisions as to the validity of some reports being introduced as evidence.

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