Evidence and Argument - Arbitration and Dispute Resolution - Lecture Slides, Slides of Law

Download Evidence and Argument - Arbitration and Dispute Resolution - Lecture Slides and more Slides Law in PDF only on Docsity! Evidence and Argument • Evidence – The asserted facts that the arbitrator will consider in making a decision – Information – What is presented at the hearing – Can be testimony, documents, video, photographs, etc. • Argument – The analysis of the facts and information from the point of view of the advocate Docsity.com The Hearing – Attendance and Roles • Attendance – Advocates – the case presenter • Generally one per side – The grievant • Unless it is a group grievance or an allegation of a general contract violation • Various aides, helpers, onlookers, etc. • Roles – Union • Represents the grievant Docsity.com Other Issues • Reopening of Hearing • Admissability vs. weight Docsity.com Evidence • The information – that the advocate will use to persuade the arbitrator – the arbitrator will use to make the decision • The Record – All evidence (testimony, documents, video, test results, etc.) that has been admitted by the arbitrator – Evidence (facts, etc.) is admitted only at the hearing Docsity.com Disclosure • Generally, all evidence to be used at an arbitration hearing should be disclosed to the other side prior to the hearing – Should be developed in the grievance procedure – Time to prepare – “No surprises” • “New” Evidence – If relevant, reliable, competent, may be admitted if a good reason for previous nondisclosure – Other party may receive time to prepare Docsity.com Theories of Admissability in Labor Arbitration (cont.) • Liberal Theory of Admissability – Let the parties make their case – “Therapeutic” function of arbitration – Arbitrator skilled and experienced and can evaluate evidence – Can consider weight or reliability in opinion – “Would rather have it and not need it than need it and not have it” • Not always sure of the direction a case will take • Concerns – how much weight will the arbitrator give it? – Will the other side be required to rebut it? • Most arbitrators will require a foundation for witness competence before witness can testify Docsity.com Objections • Party must object if party believes offered evidence should not be admitted – State a reason • Unreliable • Irrelevant • Incompetent • “Asked and answered” Docsity.com Pre-Hearing Matters • Each party should know – The witnesses the other party will call – The documents the other party will offer – Rationale • Time prepare • No surprises Docsity.com Issues in Examining Witnesses • Leading Questions – “Yes or No” Answer – Unacceptable for important matters on direct examination – Acceptable on Cross-Examination • Hearsay – A statement of alleged fact based on what another person heard and not subject to examination during the hearing – Is it reliable? • Weight with respect to the rationale for a management decision • Less weight for the actual underlying event asserted Docsity.com Issues in Examining Witnesses (cont.) • Opinion – Must demonstrate that the opinion offered is based on the knowledge of the witness • A manager – can give an opinion on the physical condition of the worker – that she smelled of alcohol – cannot give an opinion technical aspects of impairment or alcohol dissipation • Union president – Can give an opinion of a the meaning of a contract provision • Expert Opinion Docsity.com Issues in Examining Witnesses (cont.) • Impeachment – Evidence that a witness should be believed (reliability) • “credibility” Docsity.com Other Types of “Documentary”Evidence • Electronic Media – DVD’s – CD’s – Audiotape • Photographs • Site Tour Docsity.com Other Evidentiary Issues • Offers of settlement usually inadmissable or disregarded • Parol Evidence (contract interpretation cases) – Evidence on the intent of the does not outweigh the language of the contract – May not be admitted by arbitrator • Evidence related to criminal matters – Evidence not admissable in a court may be admissable in an arbitration hearing • Courts, City of Evansville, 116 LA 1184 – Collective agreement may limit evidence that may be admitted • Copple, Friedrich Air Conditioning, 94 LA 249 (1990) Docsity.com Evidentiary Standards • Beyond a reasonable doubt (criminal trial standard) • Clear and convincing evidence – Discharge cases • Preponderance of the evidence (>50%) – Discharge cases • Substantial evidence on the record as whole • Substantial evidence • Some evidence Docsity.com