I’ve been working my way through a number of decisions this week, several of which I started after the hearing and am now returning to after receipt of closing briefs. I noticed that I haven’t developed a consistent practice around citing to the record. In some cases, I made extensive references to the transcript with citations to the page and line. In others, I skipped the citation, although I may have quoted directly from the transcript. In all cases, I cite the exhibits.
Do the readers of an arbitration award care about citations? In most cases, the award is for the private use of the parties and the grievant. They participated in the hearing and have access to the same record that I have. I’m not sure they need citations. Future readers, such as subsequent party representatives or other arbitrators, are not going to have the record at hand to fact-check the arbitration award, so they don’t need it either. The same reasoning goes for published awards. Published decisions of the courts do cite the record but those records are usually public, so the reader can go check the docket and retrieve the information themselves to understand the context of the court’s opinion.
I’ll be honest: I do not love doing the transcript citations. Quite often, the facts I’m stating are not in dispute. Adding citations is time-consuming, which results in higher costs for the parties. I am committed to keeping costs low because I believe the purpose of arbitration is to provide an expeditious and cost-effective form of dispute resolution. But I don’t know what the parties want.
Going forward, I think I will try to follow these guidelines:
- Always provide the exhibit number if the information comes from an exhibit.
- Always cite the transcript page and line or exhibit page when using a direct quotation from the record.
- Undisputed and background facts do not require citations.
- Disputed issues where I am making a finding of fact should be supported by citations (and evidence, obviously).
As an advocate, I do not recall ever needing a citation in an award. That was many years ago, however, and I am curious what other people prefer.