Academic journal article The Review of Litigation

The Importance of the Federal Rules of Evidence in Arbitration

Academic journal article The Review of Litigation

The Importance of the Federal Rules of Evidence in Arbitration

Article excerpt


I. The Theory of Evidence Rules.471

A. Relevance.476

B. Hearsay.481

C. Definitions, Exemptions, Exclusions, and Exceptions .. 483

D. Opinions and Experts.490

E. Authenticity & Personal Knowledge.492

II. Evidence Rules in Arbitration.493

A. The Federal Arbitration Act, and Arbitration Generally 494

B. The American Arbitration Association ("AAA").497

C. JAMS.....499

D. Financial Industry Regulatory Authority ("FINRA") Arbitrations.501

E. CPR Arbitrations.

III. Presenting Evidence in Arbitration.

A. The Federal Rules versus Arbitration Rules.

B. Dangers of Admission or Exclusion.

C. Evidence Has a Role, Regardless of Admissibility ...



The cliché about introducing evidence in arbitration is that there are no rules of evidence that apply, but arbitrators may take submitted evidence for what it is worth.1 This notion of how evidentiary rules operates in arbitration is linked to principles-that the discovery phase of arbitration is intended to be efficient, proportional to the size of the dispute and complexity of issues presented and, ultimately, limited in scope.2 Under many arbitration rule regimes, discovery is written to be fairly limited; yet after the discovery phase is concluded, there are few if any procedural safeguards against the subsequent admissibility of material discovered. Many arbitrators admit almost anything proffered as evidence, and these decisions are largely beyond review.3

Broadly speaking, however, this is a reversal of how discoverability and evidentiary admissibility work in civil litigation. In civil litigation, the discovery phase is intended to be broad, while the admission of evidence at trial is highly regulated, requiring evidence to be not only relevant,4 but also reliable and not unfairly prejudicial.5 Furthermore, many other rules of evidence-such as the hearsay doctrine, the rules surrounding experts and opinions, and requirements such as authentication and personal knowledge-serve to promote other important purposes simply not considered by the rules governing discovery. Evidence law serves as a procedural safeguard to limit the ultimate admissibility of material discovered.6 It does this by balancing the discovery regime's initial desire to provide parties with the best opportunity to uncover information with a later set of hurdles, which ultimately promotes the resolution of cases on the most reliable information available.7

This article will examine the dichotomy between discovery and evidentiary admissibility in civil litigation and arbitration. It will suggest that, contrary to the idea that principles of evidence have no role to play in arbitration, those principles may in fact be important both for counsel to argue and for arbitrators to consider, regardless of whether or not evidence proffered will ultimately be admitted. This is because evidence law was created for the purpose of weighing the reliability of evidence and articulating how a certain piece of evidence may or may not be used. The attorney prepared to make evidentiary arguments on issues raised by a proffered piece of evidence-despite the fact that in arbitration, the evidence will likely be admitted-is in the better position to control how much weight the arbitrator gives that evidence.8 Thus, if inadmissible evidence may be admitted by an arbitrator "for what it's worth," it can be helpful if attorneys representing clients in arbitration are able to explain why that evidence would be otherwise inadmissible under the rules of evidence at trial. This explanation can be given in the form of an objection to the offered evidence or strategically placed within that attorney's closing argument.

Part I of this paper will outline the theory of the Federal Rules of Evidence, focusing on the idea that proffered evidence must satisfy certain qualifications to be admitted or be excluded as unreliable for one of several reasons. …

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