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Limiting Issues to be Briefed - What are your thoughts?

Should it be common practice for an arbitrator to put strict limitations on issues to be briefed?

Please provide your thoughts/comments below.

Comments (11)


Focus and limit are different concepts.
Yes to one
No to the second. P

That all depends on the importance and complexity of the issue which a party/parties assert. I can certainly understand when a complex or critical issue arises - and the arbitrator needs to be fully informed by both sides about that issue - it is important to fully brief the issue; but the parties must be economical and concise in setting forth their arguments.
The arbitration will consume less cost and the decision will sooner be revealed.
George D.Marlow

Yes! It provides a set of limits for the attorneys. Otherwise as an advocate when have they made their points well enough? When have they presented enough evidence? Limits provide them an ability to focus and an excuse for avoiding elements they don’t wish to focus on. I will always ask the attorneys for their thoughts regarding the limit and I will usually follow their guidance. And their look of relief.

Limitations on briefing can be a good case management technique, but this requires the parties and the arbitrator to focus as early as practicable on identifying the issues that are really in dispute in the arbitration. Even in really contentious arbitrations, the parties are, more or less, often in agreement on many factual and legal points, leaving a smaller number of points in dispute. If memorials or other briefing can focus on the disputed issues, it can help to save time and costs.

But what happens when something unexpected arises during the arbitration? The technique of requiring the parties to seek the tribunal's permission to file motions can help to streamline or avoid collateral disputes.

Finally, for motions, memorials, and other matters, page or word limits can also help to save time and costs without compromising a party's ability to present its case.

David B. Wilson


It depends on whether the issue that a party wants to brief is relevant to the issue in dispute. Arbitrators have an ethical duty not only to the parties but to the process of arbitration, which means they should not only decide the issues in dispute based on the applicable law, but also do so as efficiently and expeditiously as possible. The threshold question is weather the issue that a party wants to brief is relevant to the issue in dispute. The parties should be invited to argue that threshold issue. If the arbitrator decides that the threshold issue is irelevant to the issue in dispute, it will save the parties time and money if the arbitrator tells them that they should not brief that issue.

Page limits can be a useful technique for having parties focus on the key issues in an arbitration. However, I would be very cautious in restricting a party from addressing in its post-hearing brief substantive issues it wishes to bring to the arbitrator’s attention. I do not believe it is a common practice for arbitrators to impose such limitations, nor do I think it should be.

Al Appel

Judge Gerald Harris:

I have often alerted counsel to the issues I believe need to be addressed in closing briefs. By setting reasonable yet condensed page limits counsel are better able to focus on the important points to be argued.

Micalyn S. Harris:

Asking parties to submit joint findings of fact and a joint statement of issues can be helpful. Even if the parties can't agree on a joint statement of issues to be decided, if each party submits a statement of issues to be decided, it can be helpful to the Panel in making sure the parties concerns are treated in and resolved by the award.

Steve Hochman :

I agree with “Anonymous“ posted above Al Appel because that was me. However, I do not think one should impose page limits. I prefer to permit even verbose lawyers to fully present their case.

Greg Martin:

It should be common practice for arbitrators to consider placing strict limitations on briefs. There should not be hard, fast rule which does not allow for consideration of the issues before the arbitrator. However, too often the attorneys control the process to the detriment of the clients (higher fees) when the issues do not warrant the time and expense. The arbitrator should be an active participant in determining what is the crux of the issue to be decided.

Kenneth Fargnoli:

I think it depends on the size of the dispute and the type of award requested. I primarily do construction cases which can notoriously have many issues. Parties can't possible brief every issue on a complex construction case so having them focus on key issues can be very helpful. If a reasoned opinion, findings of facts or conclusions of law are requested it can be very helpful to have the parties give you proposed findings as part of their briefing.

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