Provisions for an Arbitration Scheduling Order to Get to a Hearing in 12 Weeks, Adapted from the Manual for Complex Litigation, [draft]
Statements of fact and evidence are due: Tuesday of Week 6
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- describe the material facts they intend to prove and how they intend to prove them
- detailed statement
- narrow factual disputes and expedite the trial
- the arbitrator will not consider
- Updates to disclosures, etc., are due
Statements of fact and evidence are due: Tuesday of Week 6[Consider deleting this section if it’s not warranted by the case] Each party is to serve on all other parties, and on the arbitrator, for each claim and each defense that the party asserts, a complete, detailed, written statement of each material fact that the party intends to prove. Each fact is to be individually annotated with citations to supporting evidence. The statement of fact and evidence is to be informative and complete, and free of argument and conclusions. COMMENT: This requirement borrows much, including language, from: • MCL 11.11, which suggests that at the initial pre-trial conference, judges should consider “requiring counsel in advance to discuss claims and defenses” and “directing counsel to submit a tentative statement, joint if possible, identifying disputed issues as specifically as possible”; • MCL 11.33, which:
urges that “[r]ather 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” (at 44, emphasis added); suggests that judges consider “requiring counsel to list the essential elements of the cause of action ….” (at 45, emphasis added); suggests that judges consider “requiring, with respect to one or more issues, that the parties present a detailed statement of their contentions, with supporting facts and evidence” (at 46, emphasis added). • MCL 11.641, which states: One method used by judges to ensure adequate preparation, streamline the evidence, and prevent unfair surprise is to have each party prepare and submit a statement listing the facts it intends to establish at trial and the supporting evidence. The statement should be informative and complete, but free of argument and conclusions. … Exchanging such statements may help narrow factual disputes and expedite the trial ….” (Emphasis added.) It’s true that MCL 11.641 cautions that such detailed, annotated statements “should not be required routinely … because the substantial amount of work required for their preparation may outweigh the benefits.” But counsel will eventually do that work in any case, and for a fast-track arbitration it makes more sense for them to do it sooner. In fact, for years Professor McElhaney has urged litigators, in every case, to create just such an annotated statement of facts, which he calls a “proof checklist”: “The heart of the trial notebook is the proof checklist,” said Angus, “and there are three steps. “First, analyze your cause of action. Write down every element you have to prove to keep the judge from granting the other side’s motion for a directed verdict. “Second, under each element, list the evidence that proves that point. … James W. McElhaney, Putting the Case Together, ABA Journal, June 2007, at 24, http://goo.gl/3D5EU8 (ABAJournal.com); see also James W. McElhaney, The Trial Notebook 128-29 (ABA 2005), excerpt available at http://goo.gl/LHwX6U (books.google.com). Each party’s statement of facts and evidence is due as stated in the heading of this section 4.7 or as otherwise directed by the arbitrator. Each version of statement of facts and evidence provided to another party is to be numbered as a separate exhibit. The arbitrator may direct that each party mark those parts of the other party’s statement of fact and evidence that the marking party disputes. COMMENT: This is suggested in MCL 11.33 at 46: “… the statements may be exchanged, with each party marking those parts it disputes ….” Except for good cause clearly shown, the arbitrator will not consider, in support of a party’s claims or defenses, any evidence that is not included in that party’s statement of fact and evidence. COMMENT: This provision is based on MCL 11.33, which suggests that when the parties submit detailed statements of fact and evidence, “the order directing this procedure should provide that other issues or contentions are then precluded and no additional evidence may be offered absent good cause” (at 46). See also MCL 11.641, which repeats that “evidence not included in the statement should not be permitted at trial.” Updates to disclosures, etc., are due: Thursday of Week 8This section applies to any disclosure or response that this Order requires a party (the “serving party”) to serve on other parties—for example, exhibits; documents produced; witness statements; and, if applicable, statements of fact and evidence. The serving party must supplement or correct its disclosure or response if the serving party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. COMMENT: See, e.g., Fed. R. Civ. P. 26(a)(3), setting out requirements for “final” disclosures before trial, as well as Fed. R. Civ. P. 26(e)(1), stating requirements for supplementation and correction. Any such supplementation is due (1) in a timely manner, and (2) in any event at or before the deadline stated in the heading of this section 4.8. All revisions are to be “redlined” or otherwise clearly marked to show changes from the previously-served version. In assessing the weight of the evidence of record, the arbitrator may take into account the apparent circumstances of such revisions—for example, if it appears that a witness is changing his‑ or her story without good reason or that a party is trying to engage in gamesmanship. (In any such situation, the arbitrator will give both parties appropriate notice and opportunity to be heard concerning the matter in question.) 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