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Arbitrators Receiving Evidence Before the First Oral Hearing

Tuesday, May 19, 2026 9:25 AM | Anonymous

Expert Evidence in Civil Litigation ...

Should arbitrators receive evidence, such as expert reports, before the first oral hearing on the merits?

What are your thoughts? 

Comments

  • Tuesday, May 19, 2026 11:02 AM | David Wilson
    Yes. In international arbitrations, where written witness statements count as direct testimony, the parties' submission of evidence before the merits hearings is routine. Even in domestic arbitrations without witness statements, expert witness reports and hearing exhibits are usually submitted before the oral hearings. Different arbitrators have different approaches regarding whether the expert reports count as direct testimony.
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  • Tuesday, May 19, 2026 11:07 AM | Kinard Lang
    In the unusual event that pre-hearing briefs have been filed in a Labor Arbitration, the data suggested in the question are acceptable as appendages to the pre-hearing briefs.
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  • Tuesday, May 19, 2026 11:29 AM | Steven Skulnik
    Yes. All written evidence from fact witnesses and experts are submitted before the merits hearing. It's unthinkable that arbitrators would arrive at the merits hearing without having studied the case.
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  • Tuesday, May 19, 2026 11:48 AM | David E. Robbins
    If the Preliminary Hearing Order provides for the submission of such evidence a s long as it is first given to opposing counsel to not object or object, I see no problem as long as opposing counsel does not object. If there is an objection, the Preliminary Hearing Order should state that the proposed evidence will not be submitted to the Panel and will have to be introduced at the hearing. If there's no provision for such pre-hearing evidence introduction, then the answer is easy: No.
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    • Tuesday, May 19, 2026 12:27 PM | Lisa Renee Pomerantz
      The arbitrator can also request, even after the preliminary hearing, that the parties advise as to the admissibility of any exhibits and resolve any objections in advance of the hearing. It is often helpful for the arbitrator to review the expert reports in advance of the hearing to identify questions she would like addressed.
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  • Tuesday, May 19, 2026 12:00 PM | Stephen Sorensen
    In Labor Arbitration and in FINRA arbitrations it almost always that the arbitrator is receiving documents or expert witness testimony
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  • Tuesday, May 19, 2026 12:46 PM | Lou Russo
    It depends on the forum. In AAA consumer desk arbitrations for example, there’s no hearing, so everything comes in up front. In others, pre-hearing submissions are better used to frame contested legal issues rather than a post-hearing brief in disguise. You may also see limited evidence early on with dispositive motions. But the line matters: you want enough to focus the dispute, not so much that you’re deciding credibility on paper instead of letting advocates do their job at the hearing.
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  • Tuesday, May 19, 2026 12:54 PM | John Shope
    Yes, even in domestic cases, I ask the parties to consider pre-filing the direct testimony of some or all witnesses in written form. An expert's written report can serve as his or her direct testimony (not admissible, of course, unless the expert or other witness appears for cross-examination, unless cross-examination is waived).
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  • Tuesday, May 19, 2026 1:30 PM | Thomas Levak
    Sure, if it’s what the parties mutually agree to do.
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  • Tuesday, May 19, 2026 1:35 PM | Mark Bunim
    I always read the expert reports before the hearing. They should certainly be produced well in advance of the hearing, so that the panel memebers have the opportunity to study them .
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  • Tuesday, May 19, 2026 1:39 PM | Gary Javore
    Yes. It helps to frame the issues and identify common ground and differences between the parties’ experts
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