To Brief or Not to Brief

Presenting Your Closing Argument

Over the past couple of weeks, I’ve written about what happens at a hearing, including opening statements and witness issues. Today, I want to talk about a component of an arbitration case that usually occurs after the hearing is complete but doesn’t need to: the closing argument.

The closing argument is exactly what it sounds like. It’s a summary of facts that were heard during the hearing, along with an explanation for why those facts support your position. In my experience, employer-side advocates are much more likely to want to submit their closing argument in a written brief, while some union-side advocates request to make their closing argument orally at the hearing. When I was an advocate, I usually requested a oral argument in discipline cases for a few reasons.

1. Because we charged a flat fee for our cases, the client wasn’t going to pay extra for a written brief.

2. The facts of the case were fresh in my mind, and the doctrine of just cause is so well-established that I didn’t need to refer to any legal sources to argue about it.

3. Once the argument was complete, the case was submitted, and I could move on to my next case (which was often just a day or two later).

When I did a written closing argument, it was usually because:

1. The facts were more complicated, or the case rested on a legal basis I wanted to brief.

2. It was a multi-day case, and facts from previous days needed to be summarized to refresh the arbitrator’s memory when it came time to write the decision.

3. It was almost dinner time and I just didn’t have the stamina to make an oral argument.

4. The client wanted a closing brief for some reason.

5. The other party wanted to submit written briefs and the arbitrator signalled that they wanted a brief from me as well.

As an arbitrator, I really like closing oral arguments, and wish more parties would do them. I can start writing a decision right away before I forget the facts of the case, and the parties get resolution much more quickly. As I noted above, the doctrine of just cause is so well-established that a practitioner with even limited experience should be able to explain why the facts we’ve all just heard support their position.

Sometimes I wonder if people are too nervous to do a closing argument, but since they’ve just done an opening argument, it shouldn’t be that much more difficult. Closing arguments do not have to be extemporaneous; they should mirror the opening argument as closely as possible. In your opening, you tell them the story of what they are about to learn. In the evidence, you show the facts that demonstrate that your story was true, and in your closing, you are reminding the arbitrator of the same story, this time with reference to the record. If you are familiar with your case, your closing argument should be the easiest part to do.

If you always do a closing written brief, ask yourself why, and whether it’s absolutely necessary. Talk to the opposing advocate ahead of time to get agreement about closing arguments. Prepare an opening statement that will easily adapt to the facts and serve as a closing, too. Take a few moments at the lunch and breaks to jot notes for a closing, and then take a few minutes to prepare remarks before the end. If you have colleagues who do the same work, set up a workshop to practice with one another so you all become more comfortable with the practice.

In the interest of efficiency and the quick disposition of grievances, I believe that closing oral arguments should have a bigger place in labor arbitration.

Good luck out there and let me know what you want to learn about arbitration!