As the parties realize that the arbitrators will use a relaxed standard for the admission of evidence, they will often, before the hearing, exchange hundreds of potential exhibits and usually not object to the other party’s designations. During the course of the hearing often only a small percentage of the documents are used by the attorneys in their presentations or during witness testimony. This can leave the arbitrator with the dilemma of what to do with these other orphan documents. These documents can lengthen the time and expense of the arbitrator’s review of the record and might cause confusion or suggest issues not even raised by the parties. Many arbitrators will not review or analyze them without guidance from the attorneys. I usually, at the end of the hearing and before final briefing has commenced, request of the attorneys if they intend to rely on any of the documents not referred to in briefs or during the hearing, to identify them and explain why and how I should consider them. This prevents parties from complaining that the opposition “surprised them” by arguing a document in post-hearing briefing that was never used before, even though designated, and requesting further briefing or a reopening of the hearing. If the arbitrator does not insist, you should, at the close of evidence, agree with your opponent or inquire with the panel as to the parameters of the record, including written documents, prehearing depositions, expert materials and any demonstrative aids that might have been used.
Demeanor
