Don't Be Afraid of the Rules of Evidence

What Happens in the Hearing After Opening Statements

One reason that non-lawyer advocates are leery of doing their own arbitrations is because they worry that they are not familiar enough with the rules of evidence to be effective in a hearing. They may believe that law school imparts some advantage. It’s true that every law student is required to take Evidence and that it’s tested on the bar exam of every state. What many advocates do not realize, however, is that the formal rules of evidence are not required in arbitration.

Remember, the purpose of arbitration is to be a fast, fair, and economical method of resolving workplace disputes. The parties shouldn’t be bogged down in discovery and evidentiary motions about what will be considered by the arbitrator.

The rules of evidence do play some role in the arbitration hearing. Some might argue that the formal rules of evidence migrated into the arbitration process because lawyers got involved and wanted to be seen as having an advantage in that process because of their formal education. A less cynical view is that the rules of evidence also help the arbitrator determine the value of the information being presented.

In other words, the Rules of Evidence are present in an arbitration, but they do not govern the process. What comes into the record may differ from what the arbitrator ultimately considers when making a decision. For example, a trial judge might prohibit hearsay, while an arbitrator may permit it, but still won’t consider it as the truth. It’s a fine line that advocates understand better as they gain experience.

Ultimately, arbitrators are looking for evidence that is material, relevant, and competent. Information that meets those three criteria often form the basis of the factual understanding that the arbitrator has about the case.

Material evidence is reasonably related to an issue in the case being heard. If a witness testifies about the weather, it may be the reason for the grievant’s absence. Otherwise, it wouldn’t be material. If evidence is not permitted by the CBA or the law, it is immaterial to the case. Some CBAs prohibit discipline records that predate a certain period. Some states have laws prohibiting the admission of unemployment claim information in any hearing. In those cases, the old discipline records and the unemployment claim information would not be material, and an arbitrator would not admit it into the record.

Relevant evidence is information that tends to prove the issue to which it is directed. The distinction between material and relevant is narrow but real. A material fact may or may not prove something, while a relevant fact tends to prove that thing. Let’s take this weather example. Grievant Neil Purt claims that he missed work on February 3 because his car skidded off the road in a driving rain and he had to wait for a tow truck and the insurance adjuster before he could get to work. Kraftwerk’s attorney enters evidence that the weather forecast that day was sunny and dry, so Neil must be lying. That is material evidence that relates to an issue in the case.

Local 282’s attorney produced photographs from the accident site which were taken by the adjuster and provided to Neil. The adjuster testified that he took the pictures and kept them with the file but does not remember this particular case. The photos show that the car is wet and that there is a large puddle on the road. The photograph is date- and time- stamped on the day that Neil says he had his accident, which is also the day he was absent. This is material evidence (relates to an issue) and relevant evidence (tends to prove that Neil was telling the truth).

Finally, the evidence must be competent. “Competent” refers to the nature of the information source, and usually refers to a witness. Witnesses that are considered to be “incompetent” are young children, people whose mental impairment prevents them from recalling information or from understanding an oath to tell the truth or someone who has been ruled “incompetent” by a court. Certain legal privileges that prevent testifying may also render someone “incompetent” to testify even if they are perfectly competent people. For example, clergy privilege or spousal privilege may prevent a pastor or wife from testifying.

Sometimes unions will argue that there is a union representative privilege that is akin to the attorney-client privilege which protects communications between the union rep and their member. Arbitrators differ to a certain degree about this privilege, but there are quite a few who agree that a union representative’s discussions about legal or bargaining strategy with a grievant or group of members should be given the same level of privilege as a lawyer in the same or similar situation.

Trial courts distinguish between direct evidence and circumstantial evidence. If you were to rely solely on TV court dramas to understand the distinction, you would believe that direct evidence is “better than” circumstantial evidence. This isn’t true; either can be used to prove a fact. 

Direct evidence is proof which, if believed, proves a factual claim regardless of other evidence. If there were a killer who admitted his crime, and witnesses who testified that they saw him kill the victim, that’s direct evidence, even if some other person claimed to have done it, assuming you believe the killer and the witnesses. Direct evidence must be persuasive; the finder of fact (here, the arbitrator) must be persuaded that it is true.

Circumstantial evidence is a combination of persuasive facts which, when taken together, leave only one reasonable factual conclusion. With circumstantial evidence, you must prove every step of the chain of events. Circumstantial evidence of the killer’s actions might include drops of the victim’s blood on his car, no alibi for the time of the murder, a recent gun purchase. The standard in a criminal case is “beyond a reasonable doubt,” so in that case, the jury would need to find that the combination of those facts, taken together, leave only the reasonable, factual conclusion that our man was the killer.

Once you’ve established the circumstantial evidence, and the evidence survives attack, the arbitrator is as apt to rely on circumstantial evidence as they are to rely on direct evidence. In a less dramatic arbitration example, the company charges Bonnie Jonjovi with time theft when they discover that she is walking into the building thirty minutes after the start of her shift, but she’s already been clocked in for the entire time. Bonnie claims that she clocked in and went back out to her car, but the supervisor is certain she didn’t see Bonnie that morning. The day before, Bonnie was overheard saying she loved to party all the time, and, “if I roll in late, you got me, sis?” to her friend. The employer argues that this combination of facts prove that Bonnie had her friend clock in for her. The union argues that the employer hasn’t met their burden of proof.

It’s not clear whether this combination of facts, if proven, leads to only one reasonable factual conclusion. Both direct evidence and circumstantial evidence can be attacked in the following ways:

•   Question the reliability of the source

•   Present contradictory evidence

•   Challenge the validity of one or more underlying facts

•   Prove additional facts

•   Use the evidence to prove an exculpatory explanation.

With these tools, both parties have a lot of opportunity to attack the evidence presented by the other side. Either Bonnie or the supervisor might be discredited. Another witness, like Bonnie’s friend or another co-worker, may have a different recollection. There might be security footage somewhere. Bonnie’s watch may have stopped. Who knows. A thorough investigation will turn up both good evidence and bad, and it’s the advocate’s responsibility to use that evidence to tell a true story that persuades the arbitrator that their side is the most reasonable, factual, and credible way to understand the issue.

What issues are vexing you these days? Share in the comments!