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Preliminary Reactions to Evidence Presented - What are your thoughts?

Should a Tribunal ever advise the parties, prior to the closing of the evidentiary hearings, of its preliminary reactions to the evidence presented during the hearings?

Please provide your thoughts/comments below.

Comments (14)

Paul Nicolai:

I have actually done this with great success in terms of cases settling.

My conditions for doing this are:

It is only at the request of all parties in the preceding.

It is only after all parties have rested.

It is with the understanding that my statements are only advisory and not binding in terms of what my final decision will be after I have thoroughly reviewed and contemplated the evidence.

The parties must agree that before I make any such statement there will be no argument or discussion afterward.

Jose W Cartagena:

No; not even to provoke settlement negotiations. The parties should be able to come to that conclusion based on their performance during the hearings. Besides, what if the arbitrators change their mind after reviewing their notes? One can only imagine the ensuing litigation.

It seems to me that such a practice would be opening a very wide door that could lead in many unexpected and unwelcome directions, and be hard to close. The closest I would feel comfortable in giving a hint about my reaction to the evidence would be to ask for more details about a particular important point that had not been adequately discussed. But I would only do that during the hearing, not afterwards.

Edwin H. Stern:

No necessarily before the closing of the evidentiary hearing but yes prior to the filing of an opinion or findings. I do not recall having done so in an arbitration but I have done it in circumstances in which I want post hearing submissions and/or briefs to focus on, or include, consideration of, issues that may well turn on specific fact-finding, such as discipline after a finding of the violation of one or more, but not all, alleged charges. At the conclusion of evidentiary hearings (including in arbitrations) it may be done when addressing what post hearing submissions the parties desire to file or I may want them to submit. But I usually do not make any preliminary indication or request until I have reviewed the record and drafted so much of my opinion or findings to lead to a conclusion that the issues I want to have addressed actually need attention. In any event, I always indicate that any preliminary indications are subject to final review and filing of the opinion.

Anonymous:

Absolutely not unless requested by the parties.

Judge Gerald Harris:

Only to the extent that the Panel may request that the parties offer additional evidence, if available, on an issue concerning which the Panel feels a need for further exposition. After the close of the evidentiary portion of the hearing it is often useful to advise the parties what issues should be the focus of post-hearing briefs.

Robert L. Cowles:

Generally my answer is NO. However, at the end of a recent arbitration I asked the parties to consider 4 things, based upon the evidence,and to focus on those areas to clear up my thinking on the case. I had them each sending me a Proposed Award. Within the time I closed the hearing and due date for the Proposed Award, I was advised that the case had settled.

In cases with a number of separate claims or issues and with the consent of the parties, I have issued "weather reports" on particular claims or issues during the hearing; I make it clear that even if I am forecasting a rainy day, it may turn out to be sunny on the day of the picnic as a result of further argument, evidence, or analysis. This has proved helpful to the parties in evaluating settlement and in using the remaining hearing time most productively. The process has been well-received even by parties for whom the news was not good. They are able to assess the prospect of turning me around and can elect to try to do so or to concentrate on other claims and issues.

Anonymous:

Especially in cases that have multi-day evidentiary hearings, I find it helpful after adjourning for the day to review the evidence presented. The same is true for cases that have one day of hearings. It helps me to remembers what I have seen and heard.

I find it impossible not to have preliminary responses to evidence when presented; my responses are involuntary. However, I reserve judgement until all evidence has been presented and I have reviewed post-hearing briefs. I often find that evidence presented that is compelling, becomes questionable in light of later presented evidence.

Anonymous:

The closest thing I have done to this practice is to advise the parties of what I wanted to be addressed in post hearing briefs.

Michael Orfield:

Absolutely not. Your honest reaction to the evidence is nothing more than a preliminary outline of your decision. The closest I get is an agreement by the parties to let me ask questions during closing argument. Even then it might be argued that I am showing my hand. Safest route to a fair and impartial decision, especially in the eyes of the parties, is to let them do their closing and base your decision on the evidence presented. Shortcomings in the evidence stand and help form your final decision.

I have concerns that signaling preliminary views, especially when the record remains open, intrudes upon the adversarial nature of an arbitration. Doing so allows a party to “clean up” the record, salvage shortcomings in proof, and otherwise could alter the flow of the proceeding to the advantage or disadvantage of a party. In that same vein, I am scrupulous in attempting to ensure that my questions to witnesses are posed in a neutral manner, as is the phrasing of issues I would like addressed in post-hearing briefs.

Hon William G. Bassler:

What a lousy idea. First of all it is quite possible that after reviewing the record and cogitating you will change your mind.
Secondly the optics are awful. Parties know how to settle cases. They do not engage arbitrators to settle cases but to decide them.
What is the next question ?
Only if the parties have adopted the Debevoise Protocol in advance of the arbitration would I ever do this.

I would be quite hesitant to try this procedure unless I had the most ethical, competent and fair-minded attorneys presenting the evidence on all sides. I would have them all agree that this process would only take place when all evidence and written arguments are in and only if all parties and attorneys agree to live by the result after we had this open conversation, and after both/all sides rested, and after all their written presentations are in my hands. I would also word my "reactions" as questions raised by the documentary and oral evidence/testimony and allow the lawyers to react to my questions/comments. And, of equal importance, I would require a written transcript be speedily made so the arbitrator's questions and the lawyers' answers "are written and preserved in stone."
If I were fully convinced of the outcome after all evidence is in and all arguments are presented I would not suggest this practice. I would simply write my decision.

And, only if I had the highest degree of trust in all the case's lawyers' ethics and a likewise high degree of confidence in all of the lawyers' competence in the case would I even consider this practice.

I would not use this procedure often. I would only consider using this procedure if I felt unsure of which side would and should prevail.

Justice George D. Marlow(Ret.)

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This page contains a single entry from the blog posted on April 13, 2018 2:54 PM.

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