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Reopen the Record After Receiving Briefs

Thursday, August 07, 2025 10:28 AM | Anonymous

a Lawsuit Be Reopened After Settlement ...

Is it ever appropriate to reopen the record after briefing is complete?

What are your thoughts?

 

Comments

  • Thursday, August 07, 2025 10:47 AM | David E. Robbins
    No, Post-hearing briefs are supposed to add back-up to closing statements, which are supposed to summarize the parties' positions and proofs. Nothing new should arise from post-hearing briefs. As the saying used to go, "The opera is over after the [heavy set] lady sings."
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    • Thursday, August 07, 2025 10:56 AM | John Kimball
      I had a case in which, having read the briefs, the 3 arbitrators concluded there were gaps in the record which required the submission of additional evidence in order to achieve a fair and just resolution of the case. We were very reluctant to do so, but, in the end, were glad we did so.
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  • Thursday, August 07, 2025 10:53 AM | Robert L. Arrington
    Generally, Mr. Rollins is quite correct. But never say never. There can be extraordinary circumstances that justify reopening. That said, I have never done it.
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    • Thursday, August 07, 2025 10:58 AM | Kevin Amadio
      Before deciding whether it is appropriate, you should first consider whether reopening the record is permissible under the applicable arbitration rules and arbitration agreement.
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  • Thursday, August 07, 2025 11:07 AM | Barry Peek
    If there is a factual disagreement crucial to the outcome and i as the arbitrator believe more testimony is needed i think it is appropriate.
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  • Thursday, August 07, 2025 11:11 AM | Frank Carroll
    In 40 years of arbitrating I have never had a request to reopen the record nor have I done so on my own motion. However, I would consider doing so if the circumstances warranted it.
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  • Thursday, August 07, 2025 11:13 AM | Hal Bruno
    It seems to me the better practice is to keep the record open until post-hearing briefs are received and reviewed. Then the arbitrator(s) should close the hearing to further submissions if they deem nothing further is needed. Otherwise, you are opening up a can of worms that is contrary to the finality objective of arbitration.
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    • Thursday, August 07, 2025 11:50 AM | Kevin Sido
      I agree with Mr. Bruno's comments. I think he sums up the situation correctly.
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      • Thursday, August 07, 2025 3:54 PM | jim kobak
        mr. Bruno's suggestion is my practice also. record closes after any post-hearing submissions
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        • Friday, August 08, 2025 5:53 PM | Mel Simburg
          There is a very practical reason for not closing the hearing until all briefs have been filed. In addition to the question presented for this discussion, many administered arbitrations have rules that require an award within a specified time from closure of the hearing. So, two good reasons not to close a hearing until final briefs have been received.
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    • Thursday, August 07, 2025 1:38 PM | Stephen F. Ruffino
      I agree. I do not close the hearing until I have had time to read the briefs.
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      • Friday, August 08, 2025 11:30 AM | Henry Parr
        same here
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  • Thursday, August 07, 2025 12:53 PM | Mark C. Zauderer
    I am a definite "maybe" on this. It would depend on several factors, including the economics of this dispute; whether it appears that the briefing reveals an outcome determinative issue on which the parties did not join issue; or I felt it would be unfair to render a decision without giving the parties an opportunity to make their best case. I might not feel comfortable relying mechanically on a facile rule such as failure to meet a burden of proof. A primary objective in arbitration to have a fair result with due respect for the importance of having rules that provide guidance that gives notice to the parties.
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  • Thursday, August 07, 2025 10:14 PM | J W Cartagena
    Assuming post-hearing briefs are agreed to after the end of the testimony phase, the hearings should be declared closed on receipt of the briefs. I fail to see the need to keep the hearings open indefinitely.
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  • Friday, August 08, 2025 7:03 AM | Geoffrey M. Beresford Hartwell
    Practically, there must be an end. It is up to the Arbitrator to make it clear when the record is to close.
    That said, never say never. Arbitration remains in existence until the ink is dry on the Arbitrator's signature. (But audi alteram partem if anything arises.)
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  • Friday, August 08, 2025 8:46 AM | Diane O'Connell
    I agree with not closing the hearing until th debriefs are read. But once this is completed and the record closed, I can't think of a good reason why the record should be reopened.
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  • Friday, August 08, 2025 9:57 AM | Thomas Levak
    Of the 4,000 cases I have decided, I have never done that.
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  • Friday, August 08, 2025 10:01 AM | Joe Catania
    It's not our job to be advocates for any side and allowing a reopening of testimony inadvertently does just that (absent mutual agreement of the parties after one or more of the parties brought it up). If there is insufficient testimony and data upon which to decide an issue highlighted by the closing briefs, that circumstance, by definition, means that whoever had the burden of proof on that issue failed to meet it. Too bad. Just because its arbitration fundamental concepts such as burden of proof, sufficiency of evidence and closing of evidence, finality, etc. don't go out the window. Our job is not to make the world right with a perfect order but to conclude a dispute in a fair and just manner based upon the evidence presented. Therefore, unless there is consent, I do not subscribe to either arbitrator or party-initiated reopening of testimony after both parties have rested regardless of whether the closing briefs highlight an issue that wasn't adequately addressed based on the evidence presented. To reopen the testimony has potential to prejudice one or more of the parties. Parties have trial strategies. They make decisions contemporaneously about what evidence to present, what questions to ask on direct and cross and what issues and arguments to make in their closing briefs in part based on the content and flow of the evidence introduced. And then, giving the benefit of the opposing parties brief to another party constitutes an advantage to the party seeking to reopen testimony. To allow parties, post hearing briefs, to put in additional evidence may inadvertently turn a party's strategy on its head. I do consider -while the hearing is still open- asking the parties to brief an issue or to offer additional proof on an issue but only with considerable reluctance because of those same considerations. I believe it fair to insist, on the record, that each party rest its case. I have no problem in entertaining a request of a party who may have concluded their proof, belatedly realizing certain evidence needed to be introduced and would accommodate that request if it did not materially prejudice a party. For example, if an opposing expert has already testified such a request would be problematic.
    Self-represented non lawyer parties are another matter, but that rabbit hole is for a different time.
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  • Thursday, August 14, 2025 12:16 AM | Chris Helmer
    I hate to think either counsel or we arbitrators miss something important, but if after the merits hearing and any post-hearing briefs you as an arbitrator realize that a significant issue has not been addressed (like you want to decide the matter on the basis of something that has not been briefed) or there is a piece or area of evidence that has not been submitted, I think you have an obligation to reopen the hearing. It should not happen frequently, as we don't try the parties' cases for them, but it does happen.
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  • Thursday, August 14, 2025 2:33 PM | Mark Bosler
    I prefer to get pre-hearing briefs rather than post hearing briefs, but would allow both if the parties are so inclined, with some limitations to promote efficiency. With pre-hearing briefs, the legal issues are highlighted for being flushed out during the hearing and the problem of new issues arising in post hearing briefs is minimized or avoided.
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  • Friday, August 15, 2025 12:01 AM | Edwin H. Stern
    I would follow Rule 41 in a commercial case and Rule 38 in a consumer case, and (subject to Rules concerning time limits and waiver thereof), would require supplemental briefing if the briefs had already been filed or at least argument based on the impact of the additional material presented on the reopening.
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