The hearing

Why this matters

The hearing is where the case is decided. Court review of an award is narrow, so treat the hearing as your one real chance to make your points. Preparation matters more than speeches. Short questions, clear exhibits, and steady answers do most of the work.

This chapter is preparation advice. Every arbitrator runs a hearing a little differently, so ask at the pre-hearing conference how yours will run, and follow the orders over anything here. This is general information, not legal advice.

Virtual by default

Under AAA R-23, the hearing "shall be held virtually or by other means as approved by the arbitrator unless otherwise agreed to by the parties or the arbitrator decides, upon application of a party, that the hearing shall be in person." The AAA gives at least 10 calendar days' notice. If you want an in-person hearing, you must apply, and you should do it early.

Prepare for a virtual hearing in these ways.

1. Test video, audio, and screen sharing before the first day.
2. Have a backup internet source, such as a phone hotspot.
3. Use a quiet room with a plain background.
4. Keep your exhibits both on screen and in a printed set, if allowed.
5. Practice sharing a document with a friend, so you can do it quickly.

Use the pre-hearing conference

Raise evidence disputes, witness issues, and logistics early. Ask the arbitrator how the panel wants your testimony presented, since you are both advocate and witness. Ask about time limits for each day. Early rulings save hearing time.

Exhibits

1. Follow the numbering system the order sets. If none, pick a plain one (Claimant 1, Claimant 2) and stick to it.
2. Keep a master exhibit list tied to your evidence register.
3. Mark each exhibit with the source, so you can show where it came from.
4. Prepare a short index and send it by the deadline.
5. Work through the facts the other side will not dispute and offer to agree to them in writing. It saves hearing time for what matters.

Where possible, prove facts with the other side's own production. A document a party produced from its own files can often be used without calling its author.

Witness lists and subpoenas

Get a dated witness-list term in the order. Without one, it is hard to exclude a surprise witness, and you need time to prepare for cross.

Ask for subpoenas early. AAA R-33(d) says an arbitrator "may" subpoena witnesses or documents "at the request of any party." Under the Federal Arbitration Act, 9 U.S.C. 7, the arbitrators "may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case." If a person refuses, a party can petition the federal district court where the arbitrators sit. JAMS Rule 21 gives similar power. Check every witness name against the record, since a misspelled name can cause service problems.

What counts as evidence

R-33(a) says "Following the legal rules of evidence shall not be necessary." The arbitrator decides what is relevant and material and must consider privilege. JAMS Rule 22(d) is similar, and Rule 22(f) bars prior settlement offers. So hearsay may come in. Authenticity and reliability still affect how much weight an exhibit gets, so be ready to show where each one came from.

Opening

Keep it short. Say what happened, what the claims are, and what you ask for, in plain words. Lead with the claim that best carries both liability and damages. Drop weak theories. Panel attention is limited.

Direct examination, and testifying for yourself

When you question a friendly witness, use open questions and let them tell it. When you testify as your own witness, ask the panel how it wants you to proceed (narrative, or questions you ask yourself). Practice answering in plain words. Switching between roles under pressure is hard, so rehearse it.

Stay consistent with your filings. Prior filings are the baseline for cross-examination. Keep testimony to the plain-language list you prepared for emotional harm, and avoid clinical terms (Chapter 8).

Cross-examination

1. One fact per question.
2. Use leading questions. "You sent this email on that date, correct?"
3. Tie each question to a document.
4. Quote the exact words from the raw record.
5. Stop when you have the answer. Do not ask "why."

Using documents to impeach

When a witness says something that a document contradicts, take these steps.

1. Lock in the testimony first. "You told us X."
2. Show the document. "This is Exhibit 12. Please read the second sentence."
3. Ask the witness to confirm the words.
4. Move on. Save the argument for closing.

Deposition answers work the same way, which is why short, closed deposition questions pay off here (Chapter 8).

Do not claim more than the record proves. If the data you needed is missing because of the other side, say so, and do not guess at numbers. Overclaiming is the quickest way to lose credibility.

Plan your time

Divide the hearing days among opening, each witness, cross, and closing. Running out of time is common. Decide ahead which witnesses and questions you will cut first.

Closing, and post-hearing briefs

Tie each claim to the proof you showed, and say what relief you ask for, with the basis for each item. If you do not ask for fees, interest, and costs, you may not get them. R-46(a) lets the arbitrator "grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorney's fees and costs, in accordance with applicable law." Ask the arbitrator whether post-hearing briefs are allowed and what the limits are. If they are, use them to point to exhibit and transcript pages.

The award

Under R-44, the award is due within 30 calendar days of the hearing closing, with extensions only in unusual and extreme circumstances. R-45(b) says it "shall provide the written reasons for the decision unless the parties all agree otherwise." Check the rule on reasoned awards, and ask for one in advance if needed. JAMS Rule 24 also sets a 30-day award period.

Review of an award is narrow. Under 9 U.S.C. 10(a), a court may vacate on four grounds, such as corruption, fraud, evident partiality, or the arbitrators exceeding their powers. A motion to vacate must be served within three months after the award is filed or delivered (9 U.S.C. 12). Legal error alone is not listed as a ground in the statute, so do not plan on an appeal.

Checklist

• Setup tested, with a backup internet source.
• Exhibits numbered, indexed, and sourced.
• Stipulation of uncontested facts offered.
• Witness list and subpoena requests in on time, names checked.
• Opening, outlines, and closing drafted, with time per witness.
• Your own testimony practiced out loud.
• Relief list ready, including fees, interest, and costs where allowed.

Check your state

• State arbitration statutes may set their own deadlines and grounds for challenging an award. Check yours.
• Subpoena service and the court that enforces a subpoena can vary by state and by where the arbitrators sit.
• Rules on fee and interest awards depend on the claim and the law that applies.
• Rules on whether the hearing may be recorded or transcribed depend on your order.

Before the hearing, list each defense the employer kept and the evidence it has for it. Chapter 18 explains who carries the burden on each.

Next: Chapter 15, Taking care of yourself.

Sources

• AAA Employment Arbitration Rules (R-23, R-33, R-44 to R-46)
• JAMS Employment Arbitration Rules (Rules 21, 22, 24)
• 9 U.S.C. 7 (witnesses before arbitrators)
• 9 U.S.C. 10 (vacatur)
• 9 U.S.C. 12 (notice of a motion to vacate)