Documents Without Witnesses
Can Still Come Into the Record - Here's How
What if you don’t have a witness for the documents you want to put in evidence?
Sometimes one party identifies documents that they believe are relevant to their case but don’t have a witness to identify the document for the record. There are several different approaches to handling this issues, and they depend on the type of document at issue.
The business record
Business records are records that are kept in the normal course of business. I know that sounds circular but it really is any record that would normally be kept, or might even be required to be kept, for the regular operation of the business and was not created for the sole purpose for the case in arbitration. Payroll records, training records, safety certifications, or performance data are the types of records that an arbitrator typically might accept without a witness unless the other party objects to the credibility of the documents, i.e. says that the documents are not real or that the data included in them is not true and correct.
The police report
Often a party will put a police report into the record and present it at as a business record. While a police report is normally kept in the course of the police’s business, the police officer’s statements (or witness statements) reflected in the report will not be accepted as fact. The only fact that a police report proves is that the police filed a report. Other facts might be admissible as well. For example, if there’s a license plate and car description that fits the car of the grievant, then the arbitrator will probably admit the record to show that the grievant’s car was involved in an accident on the day the report was created. The officer’s description of the accident would be hearsay, however. The description of the damage might be admissible, since it could be proven through corroborating evidence like a photograph. Medical records created by a doctor can face the same hearsay questions.
The news article
Occasionally there is a matter of public record that is best illustrated by a news article that documented it. A news article can be a very good piece of corroborating evidence to confirm that the event occurred. It can also support an assertion about the public outcry over an event. For example, a police department claims that an incident involving an officer/grievant has brought disrepute or injury to the department in the community. News articles about the incident can demonstrate that the public is aware of the issue and that it paints the department in a bad light. Another example: a union shows news articles of parents demonstrating in support of the teachers to bolster an argument that the community supports the union’s position. In either case, the arbitrator is likely to admit the news article if it’s from a verifiable third party. The weight they give to the news is a different question.
The court decision or arbitration award
Most arbitrators will accept court or arbitration decisions that might be relevant to the underlying proceeding without testimony about those cases. The assumption is that decision contains the relevant information and was issued by another third party. However, just because it’s admitted, doesn’t mean it will be controlling on the arbitrator. Arbitrators are only bound by the contract, so unless they are looking at an arbitration award on the same contract language in the same contract, they are unlikely to feel the need to follow the other decision. It may guide their reasoning, however, as they consider the case before them.
The video or photograph
Videos and photographs are similar to business records, in that they may be reliable if they are kept in the regular course of business or if they corroborate other evidence. Sometimes the parties will agree to the veracity of video and any videos produced are considered relevant and admissible. For example, a transit agency that routinely relies on videos of what occurs inside and outside of their vehicles can submit those videos without a witness to describe that system. The arbitrator will assume that those videos are true and correct. However, the videos or photos need to show what the party putting them into evidence say that they show.
The PowerPoint presentation
A PowerPoint demonstration created for the hearing will be treated as argument, not fact. That doesn’t mean you can’t use it, it just means that if the arbitrator elects to permit the presentation, they will not rely on the facts in the presentation. Other PowerPoint presentations, like a safety training the grievant took, will be treated like any other document.
Okay, but HOW?
If you’ve identified documents that you don’t have a witness for, the first step is the reach out to the other side and ask them if they will agree to have them admitted. That will usually solve the problem. If they won’t agree, then at the beginning of the hearing, let the arbitrator know when the arbitrator asks if there are any issues. Here’s some sample language:
Madam Arbitrator, the Union/Employer has some documents which we intend to put in the record but for which we don’t believe we need a witness. However, the Union/Employer won’t stipulate to their admissions. We were hoping that we could put those before you for a ruling when we get to our case OR We would like to know how we could handle this. Thanks.”
Judicial notice
Judicial Notice “is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well-known, or so authoritatively attested, that it cannot reasonably be doubted.” Similarly, arbitrators will take “arbitral notice” of this kind of fact if they are requested to do so by one of the parties. You can always ask an arbitrator to take notice of a fact that meets this standard.
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October 17, 2024 Event: Careers in Arbitration & Mediation
If you’re even slightly curious about what is involved in becoming an arbitrator or mediator, I’d like to invite you to an online panel that I am on next month, Careers in Arbitration & Mediation. It’s free and should be interesting! I hope to see you there.
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