Admissibility of Evidence

The strict rules of evidence applied in a court of law are not usually used in arbitration. This does not mean that the arbitrators should accept everything presented to them. The evidence should relate to the case. For example, no party should be allowed to introduce evidence of any settlement offer that it made or received. The parties should be given an opportunity to object or comment on anything that is presented to the panel. The key consideration is fairness.

 

While the Federal Rules of Evidence do not as a general matter govern the conduct of arbitration proceedings, the rules of evidence do, however, often provide good, practical guidance on what evidence is probative. The collective experience and judgment of the bar drawn upon in the formulation of these rules is useful in making particular determinations, but generally arbitration proceedings should be more informal and should permit more liberal introduction of evidence than would be permitted in court.

 

Under the SRO arbitration rules, all parties are required to exchange documents they intend to present at the hearing and identify all witnesses who will be used in their direct case. This must occur twenty (20) calendar days prior to the first scheduled hearing session, unless extended or shortened by the arbitrator(s) or by agreement of the parties. Arbitrator(s) may bar from use documents not exchanged or witnesses not identified in accordance with this rule. In granting such a motion, arbitrators should consider whether the information was known or available by the day it was required to be exchanged. Again, the arbitrator's duty in deciding this issue is to ensure that all parties are treated fairly.

 

A common problem is the attempt by a party to present testimony by deposition or affidavit. The first question the panel should ask is, "Why isn't the witness present?" If the witness is properly served with a subpoena, the witness should be at the hearing, unless he or she has a reasonable excuse. Another question the arbitrator should ask is, "Was the opposing party afforded an opportunity to question the witness?" If not, the panel should take this into consideration when deciding whether to accept written testimony or the weight to be given to it.

 

Although most arbitration claims present questions of fact that the panel will be able to decide on the evidence, some parties may rely on a specific law or statute. Generally, the party who has raised a legal issue will offer the panel a brief setting forth the law or statute and how it applies to the facts of the case. The arbitrators may encourage such a party to cover the issues orally. If the brief is accepted, the other party should be afforded an opportunity to respond. The arbitrators may also request that the parties submit briefs on any issue when the arbitrators feel a brief will assist them in deciding the case.