How To Construct A Closing Argument
What the Arbitrator Wants to Hear
Two weeks ago, I wrote To Brief or Not To Brief about whether you should do an oral closing argument or write a closing brief.
As I discussed, closing arguments can be made orally at the end of the hearing or in writing as a legal brief or letter. Closing arguments should closely resemble the opening statement with one critical difference. Instead of describing the party’s view of the events that led to the grievance, the closing argument should refer to the actual evidence that came in at hearing. How do the testimony and documents that are in the record support your party’s position?
The closing argument is also an opportunity to describe to the arbitrator why some evidence is stronger than other evidence. Stronger evidence is material, relevant, and competent. Remember, you are trying to convince the arbitrator that the evidence in the case leads the factual conclusion that you are seeking.
At the same time, do not ignore evidence that is unfavorable to your case. Arbitrators are aware of the weaknesses in your case and are interested to know how you would explain them. Perhaps a witness for your case could not recall a crucial detail and you know the opposing side will argue that the witness is lying or that the detail did not occur. There are several ways to address this.
“Tom Lee testified that he was Bill Joel’s supervisor at the time of the incident. Although he did not recall at the hearing that he witnessed Mr. Joel sleeping in the break room, he confirmed that his signature was on his witness statement. Employer’s Exhibit 7. More than a year has elapsed since the events; it’s not surprising that Mr. Lee doesn’t remember every detail.”
It’s important to remember that the burden of proof is preponderance of the evidence. Are the facts on your side more persuasive than the facts on the other side? If the case were cut and dried, it probably wouldn’t have gone to arbitration. Review the arguments that the other side made at the hearing and during the grievance procedure and address them in your closing argument.
Don’t shy away from the good arguments that the other side makes. It’s more persuasive to concede their point and offer your solution or answer to the issue they’ve raised. An employer may need to explain why an employee who with many years of service with the employer has been discharged without prior warning. Acknowledge the years of service and note the actions were serious enough to overcome that seniority. On the other side, the union should acknowledge the severity of the problem but point to the employee’s contrite testimony as evidence the problem won’t re-occur.
The closing argument is also the last chance to tell the arbitrator what remedy you want and what remedy you could live with. It is often at the very end of the argument that one party concedes that a long-term suspension would be acceptable, or that a back pay remedy could be limited to thirty days. Slipping in alternate remedy proposals helps the arbitrator think more expansively than a straight win-lose decision. On the other hand, if a certain remedy is totally unacceptable, you can make that known as well. You may not win but at least the arbitrator knows the stakes of their decision.