What Happens at Hearing, Part 2
A Few Witness Issues
Last week, I wrote about what happens at hearing (Part I) through the opening statements. A few weeks ago, I wrote about direct examination (Can I Get A Witness?) and cross-examination (You Are Probably Doing Cross-Examination Wrong). Today, I am going to talk about some specific issues related to witnesses.
Subpoenas
Before the hearing, the parties should come to an agreement about witnesses. Once you know the hearing date, make sure your witnesses know, too. In the best case scenario (or because the contract requires it), the parties identify their witnesses ahead of time, and work together to ensure that the witnesses are available on the hearing date. This means releasing witnesses from work to testify, determining pay arrangements, and coordinating subpoenas for witnesses who are reluctant to testify or need a subpoena to be released from work. Subpoenas are also helpful if a witness needs to be excused from jury duty or to reschedule another matter. The parties might also agree that some witnesses will appear by video or telephone, or that a witness’s written statement is sufficient.
Arbitrators prefer that parties coordinate on this process because resolving disputes about witnesses at the hearing feels needless, time-consuming, and argumentative. If one party is not willing to cooperate in arranging witnesses, the party calling that witness should request a subpoena from the arbitrator as early as possible.
Arbitrators have different practices about subpoenas. Some want the parties to prepare a subpoena and send it to the arbitrator for signature. Other arbitrators will sign blank subpoenas and let the party requesting it fill in the details. Still others have their staff to do the entire subpoena itself. Ask the arbitrator what their practice is and do so with enough advance warning that the arbitrator can prepare subpoenas before the hearing, with time to spare for serving the subpoena and for the witness to make arrangements to be available.
Here is the subpoena policy that I share with the parties when they ask:
Subpoena Policy
I will sign subpoenas and/or subpoenas duces tecum requested and prepared by either party with notice to the other side, pursuant to California state law and subject to any applicable terms of the collective bargaining agreement.
Sequestration
Sequestration is excluding the witnesses from the hearing during opening statements and other witnesses’ testimony. While it’s typical in court to sequester witness so that the arguments and testimony of others do not influence their testimony, parties in arbitration must either agree to arbitration or request sequestration from the arbitrator. The reason witnesses are usually permitted in arbitration is for transparency purposes. Members of the bargaining unit or management team might want to understand what the arbitrator is hearing, and the parties are unconcerned with spoiled testimony because witnesses have a disincentive to lie. They all gotta show up at work on Monday, so lying is a little harder. Also, the parties have already heard each other’s witnesses in the investigation or grievance procedures, so the witness can be impeached if they change their tune in the hearing. It’s up to the parties how they want to handle it. I will almost always grant a request for sequestration at the beginning at the hearing. I’ll also allow a witness who will definitely not be called again to stick around as an observer if they like. They just can’t be called again. Witnesses who are party representatives are never sequestered.
Expert Witnesses
Expert witnesses are not as common in labor arbitration as they are in other proceedings but there are certain kinds of cases that are more likely to warrant expert testimony. One or both parties might call expert witnesses to testify at the hearing in cases involving drug and alcohol use, fitness for duty, standard operating procedures, and handwriting or forgery cases.
Again, in the best case scenario, the parties identify expert witnesses ahead of time so that the other side can prepare their cross-examination and hire their own expert. If the grievance involves one of the issues I identified above, your case may warrant discussing the facts with an expert to see whether, as a layperson, you have misunderstood the other side’s rationale. You may conclude that your expert could help your case.
So, who is an expert? Expert witnesses in federal court are held to a high standard set by the Federal Rules. While the federal rules don’t apply in arbitration, they are helpful for understanding the difference between a lay witness’s opinion and an expert witness. Federal Rule of Evidence 702 states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
While a lay person may provide their opinion, it isn’t “expert.” It serves to clarify their testimony or determine a fact and isn’t based on scientific or technical expertise. On the other hand, an expert has the specialized training, knowledge, experience and expertise to provide evidence that is grounded in data and commonly held principles and methods.
For example, imagine that Local 282 member and Kraftwerk employee Morris C is heard slurring his words and speaking in a confrontational manner to his supervisor after returning from an extended lunch. The manager refers him for drug testing and Morris C goes to Employee Health. The results of a breathalyzer test show that Morris C had a blood alcohol content of .07% an hour after he got back to the factory. He is terminated for being at work under the influence. Morris C denies it. The employer calls two witnesses. The supervisor says he witnessed Morris C stumbling around, slurring words and that Morris smelled like alcohol or cleaning product. It’s his opinion that Morris was drunk, which was why he referred him for testing. The other witness is an outside physician who worked in emergency medicine for 35 years before becoming a professional expert. Based on his medical training, 35 years of experience, and the scientific consensus that it takes one hour for blood alcohol content to go down .015%, he testifies that Morris C must have been legally drunk when he came back from lunch an hour before his test.
The supervisor is a layperson; the doctor is an expert. Before a witness is identified as an expert, the arbitrator and the other party may have questions about their education, skills, knowledge, expertise, and the basis of their testimony. If you want to call someone as a witness, be prepared to establish that expertise. Once a witness has been deemed “expert,” they can testify about the facts of the case, even if they were not an eyewitness.
In some cases, a party will try to qualify a lay person as an expert witness. For example, the employer calls a corporate vice president to testify about how the company expects production standards to be met. That isn’t an expert; that’s just a lay witness explaining what the company policy is. The same can be said of the union steward who testifies about how the production standard is actually met. There’s nothing wrong with either witness; they just aren’t experts. They are testifying about the policy and practice at the plant. An expert might talk about industry standards or state and federal regulation.
If you find this publication helpful, please share it with your colleagues. And please let me know in the comments what else you’d like me to write about.