PLAINTIFF’S COUNSEL: “We offer these 5 affidavits of witnesses whose testimony
contained therein support all of the allegations in our complaint.”
ARBITRATOR: “Any response from Defendants?”
DEFENDANT’S COUNSEL: “We object, the affidavits are hearsay.”
ARBITRATOR: “What is Plaintiff’s response to the objection?”
PLAINTIFF’S COUNSEL: “This is an arbitration proceeding.”
ARBITRATOR: “Objection overruled. The affidavits are admitted for all purposes.”
Chapter 151 of the Texas Civil Practices and Remedies Code, (CPRC Sec. 151.001 et seq.), entitled “Trial By Special Judge”, was passed in 1987 and provided a protocol for private trials of civil or family matters pending in a district court, statutory probate court, or statutory county court. It consists of merely 13 sections but is profound in its selection of issues addressed (all of which will be examined in subsequent writings). Perhaps the most important appears in Section 151.013:
And in our system of jurisprudence, rules matter especially evidence.
Tools of Truth
Many arbitration agreements adopt the rules and procedures of the American Arbitration Association and, while there are other organizations that administer arbitration proceedings, the AAA is by far the most favored. The AAA has reduced the rules of evidence to one, Rule 34, which reads in part:
- (a)“The parties may offer such evidence as is relevant and material to the dispute and shall produce such evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. Conformity to legal rules of evidence shall not be necessary”…(emphasis added)
- (b)The arbitrator shall determine the admissibility, relevance and materiality of the evidence offered and may exclude evidence deemed by the arbitrator to be cumulative or irrelevant”
Not a word about hearsay, character, or expert evidence. And these topics do not just affect the finding of liability but can be particularly relevant to proof of damages, (more on that later in the series).
Arbitration Horror Story No. 283
 CPRC Sec. 151.013
 CPRC Sec. 151.005
 Commercial Arbitration Rules and Mediation Procedure, American Arbitration Association. Effective
October 1, 2013.
 A few ancient examples: In Coles Trial, 1692, a widow was not permitted to give testimony of what her deceased husband told her, even though it was about a plot to murder. The court denied the widow’s statements into “evidence in law”, because there was no way to confirm or contradict it. Similarly in 1696 the Fenwick’s Trial the court considered whether statements made outside of court should be excluded because such admission would offend the defendant’s right to cross-examination. Ultimately, the outside statements about the defendant’s character as a drunk and were admitted and the defendant was later sentenced to death.