ARBITRARY TOPICS … RANDOM THOUGHTS: THIS EDITION – ADVERSE EVIDENCE

posted in: News | 0

ARBITRARY TOPICS … RANDOM THOUGHTS: THIS EDITION – ADVERSE EVIDENCE

ARBITRARY TOPICS ... RANDOM THOUGHTS

THIS EDITION:  ADVERSE EVIDENCE  

 

Beginning with this Blog we will be addressing a topic relating to subrogation arbitration submitted by those in the industry.  This week … what to do about Adverse Evidence.  You know it’s probably out there … that one proof or maybe a couple of evidence items that may really work against you.  Now, we know one of the unique things about the process of intercompany arbitration is that the Rules do not mandate the exchange of Evidence unless the parties agree to do so.  So if you have a Police Report (i.e.) and it is detrimental to your position what should you do ?  Do you not place it before the Arbitrator at   all ?  But, what if the other party has a copy of the Report and they place it into Evidence.  You could elect not to put the Police Report before the Arbitrator but then does that convey through inference it is somehow negative to your position especially if the other party produces it.  So really three things:       1.) the evidence is favorable to your position … obviously include it in your case.  2.) the evidence works against your narrative and theory …. see if there is other Evidence you have that contradicts or diminishes it and then include that evidence along with the adverse proof. Discuss the weakness forthright but focus the Arbitrator on the ‘other’ Evidence that overcomes the weakness.  Perhaps there’s a witness statement along with scene photos that clearly cast doubt on the Officer’s narrative.  3.) lastly, do not include the Evidence but if you are the Respondent / Counter Applicant … review the list of Evidence the ‘original’ Applicant files to see if they included it.  You may decide to rebut it.  Remember in Arbitration that the Arbiter likely expects to see certain types of Evidence based on the nature of the dispute.  If it is not available at all; you may want to advise them -

Leave a Reply