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Tentative Rulings - What are your thoughts?

The notion of judges issuing tentative rulings is quite common in California practice, but not so much on the East coast. How helpful is it for an arbitrator to issue tentative rulings in advance of making a final definitive ruling? Under what circumstances would a tentative ruling make for a best practice?

Please provide your thoughts/comments below.

Comments (15)

Judge Gerald Harris:

I believe a tentative ruling may be useful when the calculation of damages involves application of complex factors which may lead to mistaken awards. It is preferable to invite comment and make any appropriate revisions that may be required before finalizing the award than having to revise the award after issuance.

If the arbitrator is not ready to decide the case (or issue), he should solicit further briefing from the parties. If he his ready to rule, he should do so. Issuing a tentative ruling only delays proceedings and undermines the authority of the arbitrator. Parties don't want Hamlet when they select arbitrators.

I have never done it. I have told the parties what issues most concerned me and should be addressed in post hearing briefs.

Stephen A. Hochman:

I have sent the parties a draft of my final ruling where I was not 100% sure that my tentative ruling on the legal issue was correct. The purpose was to give the party I was intending to rule against a chance to change my mind by citing to me some authority that I may have overlooked. I believe arbitrators have a duty to do their best to decide disputes correctly based on the applicable law, and giving the potential losing party the right to try to change your mind is consistent with that duty.


Tentative rulings should not be allowed. These rulings are unfair to at least one party. Either make a ruling or reserve ruling until you have all the briefing and arguments to make a ruling. The parties deserve a well-reasoned ruling and should not be subjected to tentative rulings that create uncertainty.

Tentative rulings are common in family practice in NJ. It focuses any remaining legal argument by the parties and helps assure a correct final result. I don't believe it diminishes the arbitrator's authority.

It seems to me that a tentative ruling could benefit the parties in that after they had presented all their evidence but before you issued your award, that they had a last chance to mediate the case. If they didn't do so within a set, short time, then the award issues.

Paul Nicolai:

I believe this option is a waste of time. Any issues with regard to complications for measuring damages, etc., can be handled either at the hearing or by posthearing brief.

Lisa Pomerantz:

I concur with Bob. I like to keep an open mind until i have enough information to make a decision.

Deanne Wilson:

Tentative rulings are quite common in NJ state trial courts. In my 17 years on the bench, I never issued one, however. The time guidelines were so tight that I couldn't devote the time truly needed for a well-reasoned tentative ruling. I was then concerned that I might be "up and locked" into a tentative ruling that did not arise from as careful consideration as I would have given to a final ruling. In addition, if the tentative ruling is designed to give the losing party a "second bite at the apple," do you then give the other party the opportunity to respond to the "second bite'? Where does it end?

Tentative rulings have unintended consequences, the major one being ambiguity about appeal of what might be construed by a court to be a "final ruling." Courts in recent years have construed what were meant by the arbitrators to be non-final tentative rulings as final awards creating more expense and less efficiency in the arbitration process. The best practice would be to request additional, focused briefing while holding the final hearing open. Another unintended consequence of tentative rulings is additional time, expense, and confusion before getting to a "final" award.

David Andrew Byrne:

I prefer to give the parties more extensive guidance about what issues I would like for them to address in their briefs. When I was representing a party, I wanted my judge to keep an open mind before until she considered all of the arguments. So giving the parties a signal about the issues important to me, I think, more properly reflects that I have not made up my mind on an issue but see one or more issues as very important if not determinative.


The comment about computation of damages is well taken.However, rather than a tentative ruling, I suggest you ask the parties for additional briefs on the issues you are not sure of.

Robert E. Barras:

Interesting comments all, but I would like to hear about tentative rulings related to construction disputes and how they might apply.

Michael Orfield:

A tentative ruling, by design, invites feedback and further argument. If the Arbitrator truly wishes to provide another bite at the apple, then you issue a tentative ruling and set oral argument. Once oral argument is complete, you issue your Final ruling. While this was my MO on the bench, it is not my practice to do it in Arbitration. I can always ask for briefs if I see a complicated issue that needs post hearing analysis for my benefit. But I believe I can deliver true and accurate justice by asking for post hearing briefs if I need further help. Tentative rulings too often result in a total re-arguing of the case, lacking focus.

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