What Happens At a Hearing, Part 1
Before You Call Witnesses
Last week, I wrote about how to endure your first hearing and spoke at a level of generality that might not be helpful if you’ve never been to an arbitrator before. So I thought I would dig a little deeper and give you some details. Imagine that it’s the day of the hearing and it’s time to get started.
What comes first? Surprisingly, it’s not the opening statement. Before the arbitrator starts the hearing, she usually asks several questions off-the-record. She’ll ask the same questions on the record in a few moments but it’s useful to have some preliminary information. Here are the questions I commonly ask at the beginning of a hearing:
1. Have all the steps of the grievance procedure been met or waived?
2. Is the matter properly before me, and will my decision be final and binding?
3. Do you want me to retain jurisdiction over the remedy if that becomes necessary?
4. Is there a statement of the issue?
5. Are there any stipulated facts or joint exhibits?
Once I know the answers to these questions, I start the hearing. If there is a court reporter, I say, “Let’s go on the record.” If the parties’ answers to my questions were short and sweet, I might summarize their views and ask for their agreement. If they have some argument they want to make about the procedural issues, I invite them to answer the question on the record so that their position is preserved.
We mark exhibits, if necessary, and identify any arbitrability issues that we will be addressing during the hearing. I confirm who has the burden of proof and invite them to make an opening statement.
Burden of proof is the concept that the party who initiated the action bears the responsibility for demonstrating that the evidence warrants finding in their favor. In a discipline case, the employer has the burden of proof. In a contract interpretation case, the union has the burden of proof.
How much evidence is needed depends on the forum. For example, in a criminal case, the prosecutor must demonstrate that the defendant committed the criminal act “beyond a reasonable doubt.” However, in labor arbitration, the burden of proof is “preponderance of the evidence.”
A preponderance of the evidence means that the facts show that it is more likely than not that the accused behavior occurred. You might say it’s fifty percent plus one if you were placing the evidence on an actual scale.
The party who has the burden of proof gets to make the first opening statement because it’s their case to make. The opposing party may make an opening statement after the first party has made theirs or may reserve until after the moving party has put on their evidence. Arbitrators are split about whether they require an opening statement from the opposing party. Some require it because they want to know both sides of the case before they hear evidence. I have no preference and am aware that some parties use it tactically, reserving their opening statement in order to address the actual facts that arise rather than the arguments that the moving party made. In some cases, that tactic works. In others, it makes the opposing party seem unprepared, as though they weren’t certain what arguments to make at the outset, so they waited until they’d learned the case. As an opposing party, consider how your choice might affect the arbitrator’s view of your arguments.
The opening statement should be basic. The advocate should answer the issue, state the standard, and say what evidence they will introduce to support that conclusion. State all your best arguments and identify what evidence you believe will come into the record to support those arguments. The advocate should also say what remedy the arbitrator should order if she agrees with their position.
Here’s a Mad Libs style opening statement on a discharge case:
“Good morning. We believe that the evidence will demonstrate that the employer had just cause to discharge Joseph Ramone from his position as a forklift operator at our Rockaway Beach facility. On [DATE], Mr. Ramone [VERB] in violation of [POLICY, RULE OR PROCEDURE]. The supervisor will testify that [FACTS] and [NUMBER] eyewitnesses will testify that [FACTS]. This isn’t the first time Mr. Ramone has been subject to discipline. He had a [DISCIPLINE] in [YEAR] and [DISCIPLINE] in [YEAR]. Therefore there was progressive discipline that was not effective at correcting Mr. Ramone’s behavior. The Union will argue [LIST ARGUMENTS YOU ANTICIPATE AND OFFER REBUTTAL]. For these reasons, we ask that you deny the grievance and uphold the discharge.”
Obviously many cases will require more information, such as the nature of the work or the kinds of policies in effect. Unless the other side is willing to stipulate to every fact in your opening statement, it isn’t necessary to identify every piece of information you will be relying on to build the case. That’s the point of the hearing.
The reasons “short and sweet” is better than “long and rambling” should be obvious but let me spell them out anyway. You do not want to bore or confuse the arbitrator right off the bat. You also don’t want to promise something you can’t deliver. For example, if you promise there’s an eyewitness to the grievant’s misdeeds, and that person doesn’t show up, or doesn’t testify exactly as you’ve promised, it undermines the persuasiveness of your case. One advocate explained it to me this way: “You need to tell the arbitrator what your case is about (opening statement), then show the arbitrator what the case is about (evidence), and then tell them again one last time (closing statement).”
The opposing party should make a similarly brief and thoughtful opening statement, laying out all the reasons why the moving party’s evidence isn’t as strong as it sounds, and sharing facts that might be mitigating or persuasive. Finally, it’s important to state the opposing parties sought-after remedy, so the arbitrator knows exactly what you want.
My personal preference is to identify (“mark”) exhibits before the testimony begins so I can flush out whether there’s agreement about any of the documents. My personal practice is to deem admitted all the documents unless there’s an objection based on foundation. The parties are always free to argue about relevance and hearsay and so forth. If a document is what the parties say it is, it come in. I do this because I want to limit testimony laying the groundwork to get a document into evidence. Let’s get on with it!
I also welcome stipulated facts and wish more parties used them. It really helps get the agreed upon information out of the way so that the hearing focuses on the facts that are in dispute. The more work the parties do, the easier it is for me!
That gets us through the hearing up to the first witness. I will talk about witness testimony next week. Don’t forget to ask questions in the comments, and share this with your colleagues if you think they might find it useful!