Draft 2015-06-15 An Arbitration Scheduling Order Drawing on the Manual for Complex Litigation for Faster, Less-Expensive Awards
The arbitrator may offer observations and questions
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The arbitrator may offer observations and questionsFrom time to time the arbitrator may, in the arbitrator’s discretion, provide all parties with one or more (written and/or oral) observations and/or questions about the Chronology and the materials cited in it. COMMENT: As a neutral with certain expertise, the arbitrator can be helpful in guiding the parties’ hearing-preparation efforts. This section draws on principles reflected in AAA Commercial Rule P‑2(a)(iii), (vi), and (xii) and in MCL 11.11 and 11.33. The MCL opines that: Probably the judge’s most important function in the early stages of litigation management is to press the parties to identify, define, and narrow the issues. … Plaintiffs may assert that substantial discovery must precede issue definition, and defendants may contend that plaintiffs must first refine their claims. Nonetheless, the judge must start the process of defining and structuring the issues, albeit tentatively …. MCL 11.31 (emphasis added). The MCL stresses that: … Questions should probe into the parties’ claims and defenses and seek specific information. Rather than accept a statement that defendant “was negligent” or “breached the contract,” the judge should require the attorneys to describe the material facts they intend to prove and how they intend to prove them. MCL 11.33 (emphasis modified). Moreover, many counsel likely would welcome the opportunity: (1) to discern, as early as possible, how the arbitrator is tentatively viewing the case; and (2) to try to correct any perceived errors in the arbitrator’s understanding, again as early as possible, and in any case before the arbitrator issues a final award that would be essentially unreviewable on its merits. The purpose of any such questions or observations will be to help the parties to identify disputed- and undisputed points; the arbitrator intends to keep firmly in mind the need to remain neutral and not to finally decide any matter until each party has had a fair opportunity to be heard concerning the matter. Any questions or observations are strictly provisional and are subject to reconsideration by the arbitrator in light of evidence and argument duly presented, for example at the hearing or in motion practice. COMMENT: Some lawyers might be concerned that questions by the arbitrator could unfairly “coach” opposing counsel. This modest, hypothetical downside risk must be weighed against the advantages of (1) providing counsel with helpful insight into the arbitrator’s then-current thinking about the case, and (2) helping counsel to focus their subsequent work on areas of weakness identified by the arbitrator and on possible areas of misunderstanding or lack of comprehension by the arbitrator. (Moreover, the concerned lawyers might themselves be beneficiaries of such “coaching.”) Unless the parties expressly agree otherwise in writing, the arbitrator will provide any such questions or observations to all parties, not just to the party that served the relevant draft of the Chronology. Written witness statements, excerpted from the Chronology, are required (delete if so agreed by the parties)COMMENT: Much of the text of this section is adapted from AAA Commercial Rule R‑35 and MCL 12.51; AAA Employment Rule 8(o) also contemplates testimony by affidavit. Pursuant to the arbitrator’s authority under AAA Commercial Rule R‑35(a), all “direct” witness testimony is to be presented by written witness statement excerpted from the Chronology, except for the following: COMMENT: Written testimony is expressly provided for by AAA Commercial Rule R‑35(a) and is clearly contemplated by AAA Employment Rule 8(o) (testimony by affidavit), as well as in other providers’ arbitration rules, and are a staple of international arbitration and of federal-court bench trials. at the option of the party calling the witness, a brief “live” oral recap, by the witness, of key points of the written testimony; COMMENT: It can be helpful to the arbitrator for a witness to “guide” the arbitrator through the witness’s written testimony. The witness’s doing so can also help to get the witness comfortable “on the stand” in preparation for cross-examination. the testimony of any witness, not employed by or otherwise under the control of the party presenting the witness’s testimony, who states on the record that he or she refused to provide such a written witness statement; or other testimony offered “live” for other good reason with the arbitrator’s approval.
Each version of a witness statement provided to another party is to be numbered as a separate exhibit. COMMENT: MCL 12.51 calls for written witness statements to be marked as exhibits. Giving separate exhibit numbers to different drafts of a witness statement can help keep the drafts straight if differences between the drafts become relevant. Each witness statement is to include the following, in short, separate, paragraphs; each paragraph is to be numbered except those containing spaces for signatures and notarization: the full name and address of the witness; a summary of the witness’s education; a summary of the witness’s work history for at least the preceding ten years; and if the witness’s testimony expresses any opinion as an expert, the witness’s C.V. or other evidence supporting the witness’s qualifications; all facts and opinions in the Chronology as to which the witness has been identified as expected to testify; an oath (or an affirmation, or a declaration under penalty of perjury) of the truth of the matters stated in the witness statement; spaces for the witness’s signature and the date and place of signature and if required by this Scheduling Order or by the law of the place where the witness signs the statement, a space for a notary certificate. COMMENT: Some of the provisions above are modeled on Article 4.5 of the International Bar Association Rules on the Taking of Evidence in International Arbitration (2010) (“IBA Rules”). Only the final draft of a witness statement need be signed. Each witness statement is to be served on the arbitrator and all other parties as provided in this Scheduling Order. Each party is to serve the other with a copy, marked as an exhibit, of any document or other evidence that (1) is referenced in any version of a witness statement, and (2) was neither (A) previously provided to the other party nor (B) provided by the other party. If a party calling a witness to testify does not timely provide a written witness statement for that witness, then the witness will not be allowed to testify except (1) by agreement; (2) for impeachment or rebuttal purposes; or (3) as provided in § 4.4.1. Per AAA Commercial Rule R‑35(a), if a party submits a written witness statement for a witness, any party may designate the witness as being required to appear at the hearing. The designating party is to notify the arbitrator and all other parties of its designation no later than ten business days before the start of the hearing, otherwise, the party will be deemed to have waived its right to make the designation as to that witness. A party’s failure to designate a witness as being required to appear at the hearing is not a stipulation to the truth or admissibility of any part of the witness’s written statement. COMMENT: This provision is modeled on Article 4.8 of the IBA Rules. Per AAA Commercial Rule R‑35(a), if a witness does not appear at the hearing after being notified to do so, then the arbitrator may disregard the written witness statement or make such other order as the arbitrator may consider to be just and reasonable. The arbitrator will give little or no weight to conclusory assertions or legal arguments in written witness statements. COMMENT: This is suggested in Wolf and Preteroti, supra. If a witness provides a written witness statement and does appear for examination at the hearing, then: COMMENT: The procedure of this section largely tracks that of MCL 12.51. The witness is to be sworn and to orally adopt his or her written statement; otherwise, the written statement will be disregarded. Counsel for the calling party may (but need not) conduct a brief direct examination in which the witness summarizes key points of his or her written statement. The direct examination must be substantially limited to the matters stated in the witness’s written statement (this will not preclude the calling party’s questioning the witness for purposes of rebuttal or impeachment of another witness). After the oral direct examination, the witness will be subject to oral cross-examination, redirect examination, and questioning by the arbitrator. The written statement of a witness who is not designated as being required to appear at the hearing must be sworn by the witness in the same manner as required by law for an affidavit (or, if permitted by applicable law, signed under penalty of perjury), otherwise the arbitrator will not consider the statement. Directory: docs docs -> Application for acem docs -> Observational Assessment of Teaching Practices Teaching Assessment Initiative Proposal Submitted to The Teachers for a New Era project docs -> Traditional British values docs -> From Warfighters to Crimefighters: The Origins of Domestic Police Militarization docs -> Borzoi Club of America Register of Merit Program I. 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