Evidence Law Considerations

Transcription

1 Chapter INTRODUCTION TO EVIDENCE LAW IN ARBITRATION 4-1:1 The Arbitrator s Mindset Concerning Evidence Law The arbitrator s understanding of the basic tenets of evidence law, including the appropriate relaxation or inapplicability of the rules of evidence, is a basic working tool of an arbitrator. In arbitration, even with its relaxed evidence constraints, 1 the arbitrator s response to objections, much the same as a judge s role in litigation, must become second nature. Not being required to conform to the evidence rules is different from disregarding them. Evidence rules have a purpose, which should be understood by counsel and arbitrators, as are the underlying principles of fairness that they represent. Difficulties in presentation, expenses of production of witnesses or documents, time constraints, or the like may cause acceptance of evidence that would be excluded in a court of law. These decisions, however, must be made with an understanding of what is being given up insofar as this inadmissible proof gives weight to other evidence or impeaches its credibility or probative value. 1. See, e.g., AAA Commercial Arbitration Rules, R-34(a) ( Conformity to legal rules of evidence shall not be necessary. ). The Third Circuit in a precedential decision has said that relaxed rules of evidence are a part of arbitration and not unconscionable. Century Indemnity Co. v. Certain Underwriters at Lloyds, London, 584 F.3d 513, 557 (3d Cir. 2009) (arbitration need not follow all of the niceties of federal court); see Ivery-Little v. Little, No. A T3, 2016 WL , at *3 (N.J. Super. Ct. App. Div. Mar. 15, 2016) (citing N.J.S.A. 2A:23B-15(a)). NEW JERSEY ARBITRATION HANDBOOK NJ_Arbitration_Handbook_Ch04.indd 121

2 Chapter 4 Having no rules would create anarchy; but strict rules can cause the parties to wonder why they chose the simplicity of arbitration. The arbitration process must find a workable balance, and an arbitrator should be ready to herd the cats by fair, consistent, and reasonable rulings to admit relevant, material and non-cumulative evidence. 2 Arbitration is not a freewheeling process under which an arbitrator admits everything that is presented under the rubric of I ll hear it for what it is worth, or I ll decide later whether to rely on this, but I ll hear it now. Such statements are usually a substitute for real considerations of reliability and for conscious decisions to relax evidence rules in the interest of justice. 3 Repetition of phrases such as those above will do little for an arbitrator s reputation. An arbitrator must employ different skills from those he or she used as an attorney. Arbitrators cannot avoid making rulings, must pass on objections as attorneys make them, must refrain from prematurely presenting their own views of the case, and must respond to the objections actually made by the attorneys (not the ones the arbitrator would have made). He or she must remember that what an attorney has done may be a trial tactic. At the time of the objection, the arbitrator controls the admission of evidence; only later, after fully hearing both sides, will it be given weight. 4-1:2 Preliminary Findings Although evidence rules are to be relaxed for cogent reasons, if a rule is to be applied it often requires specific preliminary findings by the arbitrator. Most of the usually-applied evidence rules are discussed in Chapter 5, but others are discussed in the text to illustrate particular principles. The words if, when, in the event, and unless, when found in the New Jersey or federal evidence rules, are often the keys indicating the need to make a finding on the record, showing an awareness of 2. See AAA Commercial Arbitration Rules, R-34(b) ( The arbitrator shall determine the admissibility, relevance, and materiality of the evidence offered and may exclude evidence deemed by the arbitrator to be cumulative or irrelevant. ). 3. See, e.g., AAA Commercial Arbitration Rules, R-34(a); N.J.S.A. 2A:23B-23(a)(3). See also AAA Commercial Arbitration Rules, R-32(c) (the parties may produce evidence that the arbitrator deems material and relevant. ); AAA Commercial Arbitration Rules, R-34(a) (same, but adding that the evidence is such that the arbitrator deems it necessary to understanding and determination of the dispute. ). 122 NEW JERSEY ARBITRATION HANDBOOK 2017 NJ_Arbitration_Handbook_Ch04.indd 122

3 INTRODUCTION TO EVIDENCE LAW IN ARBITRATION 4-1 the requirement of a particular finding and that the arbitrator acted accordingly. When there is discretion, the arbitrator should indicate knowledge of this leeway and that he or she did not think the action taken was mandatory. There is a vast difference between the two. 4-1:3 Decision-Making The arbitrator is to exercise judgment and should not be afraid to do so. That is why he or she was retained or appointed. Delayed rulings on objections and fumbling give the wrong impression. There are techniques for prompt rulings. As the matter is being heard, it is best to keep handy the most-often-cited evidence and arbitration rules that are being applied in the case. If the arbitrator is unsure and the point is a major one, there is nothing wrong with taking a break and doing a little research or, if needed, asking the attorneys for a short memorandum or brief if the point is central to the case. However, the case should not be overloaded with time and expenses by requiring in-depth authority for all objections. A simple explanation for rulings, such as leading, calls for hearsay and not within an exception, or the like, should suffice. Such an explanation is appropriate in a courtroom, but an arbitrator should add that the evidence is not otherwise material. The arbitrator must be sufficiently conversant with evidence law to meet these and other objections. Arbitrators may relax the rules, but, again, a brief explanation why removes doubt that the rulings are arbitrary. Remember that double or triple hearsay, if admitted, might fill a gap in the proofs, but its probative value may be virtually nonexistent, and the arbitrator can still choose to exclude it, applying hearsay rules. If the arbitrator finds that he or she has made a wrong decision as to the admission of significant evidence, the arbitrator should correct the situation. A witness can be recalled, or evidence can be belatedly admitted or excluded, but with an explanation to the parties and counsel of what is being done and why. An arbitrator should not be afraid to admit a mistake, even if it requires calling back the attorneys on the arbitrator s own motion This can be done only before rendering a final decision. Remember the loss of jurisdiction after rendering the final award, except for arithmetical or like mistakes. See Chapter 8, 8-2:1. NEW JERSEY ARBITRATION HANDBOOK NJ_Arbitration_Handbook_Ch04.indd 123

4 Chapter THE NEW JERSEY OR FEDERAL ANNOTATED RULES OF EVIDENCE The annotated New Jersey Rules of Evidence 5 is the best in the country. Be sure that you are using the current annual updated version. It contains all revisions and comments from the Committee on the Rules of Evidence, often stating why they differ, in minor ways, from the Federal Rules of Evidence. The numbering system between the New Jersey rules and the federal rules is virtually the same, and the last major revision of the New Jersey Rules of Evidence was made to have our rules conform to the Federal Rules of Evidence, except where there were good reasons, usually clearly stated, to depart from them. 6 If the case is under the Federal Arbitration Act, have a copy of the Federal Rules of Evidence at hand. They are statutory, have detailed official comments, and have been subject to extensive interpretation by the courts nationwide. These rules of evidence are the starting point for counsel and arbitrators. In arbitration, these rules are advisory rather than binding. 4-3 SOURCES OF EVIDENCE LAW Evidence principles abound throughout the substantive and procedural law of New Jersey: (1) New Jersey Rules of Evidence, (2) New Jersey Court Rules of Procedure, (3) common law, (4) statutes, (5) the U.S. Constitution, and (6) the New Jersey Constitution. Some may be applicable to arbitration. Some examples include constitutional rules as to due process (notice and an opportunity to be heard), which are equally applicable to litigation and arbitration; common law rules as to acceptance of parol evidence; statutory rules, such as the Statute of Frauds, may be viewed as substantive law as well as controlling the admission of evidence; and court rules as to privileges regarding discovery materials, common law and statutory presumptions, and similar issues apply to litigation and arbitration. Many are referred to 5. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence (Gann). 6. One of the authors was a member of the New Jersey Supreme Court s Evidence Law Committee from its inception until The other presented to the committee considering adopting the numbering system of the Federal Rules of Evidence. 124 NEW JERSEY ARBITRATION HANDBOOK 2017 NJ_Arbitration_Handbook_Ch04.indd 124

5 WHAT IS EVIDENCE? 4-4 somewhere in the annotated evidence or procedural rules, but some are not there or are only briefly noted. 4-4 WHAT IS EVIDENCE? 4-4:1 Traditional Evidence The evidence upon which an arbitrator should decide a case is the testimony, exhibits, interrogatories and depositions placed into the record, stipulations of the parties, expert reports, affidavits or certifications admitted in lieu of testimony, and the like. The arbitrator s function is to try to limit the production and consideration of evidence to this traditional evidence ; but remember that the aim of the hearing is a search for the truth. 4-4:2 Other Evidence Everything that goes on in the hearing room is potentially evidence, even if it should not be. This includes what is heard, seen, or smelled, such as an attorney who rolls his eyes to the ceiling whenever a witness says something he does not like or a whispered that s a lie by an observer. Therefore, the arbitrator must develop a new ability how to negate improper influences. Chapter 5 contains a compendium of selected New Jersey Rules of Evidence, leaving out those rules treated in more detail elsewhere in this book or rules that have little effect in an arbitration proceeding, such as rules related solely to criminal proceedings. NEW JERSEY ARBITRATION HANDBOOK NJ_Arbitration_Handbook_Ch04.indd 125 3/30/2017 3:09:28 PM