« Arbitrators Receiving Evidence Before First Oral Hearing - What are your thoughts? | Main | Punitive Damages - What are your thoughts? »

Detailed Pleading - What are your thoughts?

If a Claimant chooses to file a detailed pleading instead of simply submitting a Demand Form, to what extent should the Claimant be held to any deficiencies in that pleading? For example, if the Claimant pleads certain factual averments but, even if taken as true, they do not rise to the level of a claim, is that an appropriate basis for an arbitrator to dismiss the claim upon the Respondent's motion?

Please provide your thoughts/comments below.

Comments (8)

Motions addressed to the sufficiency of pleadings have no place in arbitration. If the pleading reveals a possible legal deficiency, the parties and the tribunal can explore bifurcation or other devices to determine threshold issues on the merits.


The acceptance of a detailed complaint rather than “claim” should be considered in its broadest form and non-technically - not held the standard of pleadings in state or federal courts. In order to make arbitration efficient and equitable/fair, the arbitrator should infer from the complaint and request additional illumination from the parties at the Preliminary Hearing. Otherwise the trap is to fall into litigation standards by omission or rejection

Judge Gerald Harris:

Such a situation should be addressed as it is currently. If one party believes that the process can be expedited by the making of a dispositive motion as to all or part of the claim, counsel should exchange letters enabling the arbitrator to determine whether it would be useful and economic to permit the filing of such a motion. In general, the resort to motion practice should be discouraged in keeping with the advantages offered by using an arbitral forum.

Hon. William G.Bassler.:

I know of no authority that would require dismissing a claim in an arbitration based upon state or federal pleading standards.
Any deficiencies in a detailed pleading can be addressed at the preliminary hearing and remedied without the filing of a motion.
Motions should be discouraged in arbitration and certainly dispositive motions on the pleadings.
Having said that I once permitted a motion for judgement on the pleadings to be filed and to my surprise upon careful examination of the contract found there was no basis for the claim.

I have three thoughts. The first is to add my agreement with my colleagues - a "claim" that arrives in the form of a "complaint" "should be considered in its broadest form and non-technically" -Anonymous, and "Motions addressed to the sufficiency of the pleadings have no place in arbitration." Steven Skulnik. Second, where there appear to be arguments that would in court lead to a motion to dismiss a portion of a claim, I encourage the parties to meet, confer, and reach an agreement or to agree that they want a ruling on the matter. As an arbitrator, I control the timing. I find that the broad "kitchen sink" approach to legal pleadings is often narrowed by agreement between reasonable parties in the arbitration setting. Finally, I have a "claims template" I use with parties in construction arbitrations that gives them an opportunity to clarify their claims and also serves as a "reality check" on whether their investment of time on that issue is worth the potential return.

Most of my arbitrations are conducted in accordance with rules that do not require detailed pleadings.

That said, the arbitrator needs to establish the issues in the case, within the context of the arbitration agreement, the jurisdiction it confers, and the authority granted by the forum rules.

If the Claimant, after having had the opportunity to explain his or her claim, is unable to articulate any reason why, under the arbitration agreement, he or she is entitled to relief, granting a dispositive motion may be appropriate. But that is very seldom appropriate at the initiation of the case.

Robert E. Barras:

With the circumstances given, it appears that the claimant has no attorney, or a weak one at best, for submitting a detailed pleading. This question must be cleared during the preliminary hearing between the parties by written clarification by both Claimant and Respondent.

I am going to play devil's advocate and give you the flip side of the coin.

Here was the question:

"For example, if the Claimant pleads certain factual averments but, even if taken as true, they do not rise to the level of a claim, is that an appropriate basis for an arbitrator to dismiss the claim upon the Respondent's motion?"

If this is the case, then the respondent would make a pre-answer motion to dismiss, and likely win in court.


But the majority of you, with the exception of Judge Bassler, who did otherwise in practice, are denying the respondent that expedient and dispositive relief in an arbitration.

That means that the respondent has to go through a hearing to attempt to remedy the claimant's deficiency in pleading, and then perhaps an entire substantive arbitration, in order to reach the same conclusion, to wit, that the claimants lacks the salient facts upon which relief can be premised. It seems to me that this defeats the goal of arbitration to be more expedient than litigation in court.

If all of the factual averments made by the claimant, even taken as true, do not rise to the level of a claim then the motion should be permitted, and granted.

Post a comment

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)


This page contains a single entry from the blog posted on August 26, 2017 3:47 PM.

The previous post in this blog was Arbitrators Receiving Evidence Before First Oral Hearing - What are your thoughts?.

The next post in this blog is Punitive Damages - What are your thoughts? .

Many more can be found on the main index page or by looking through the archives.