Strange — continued from Previous Page
Code of Civil Procedure section 1282.2(a)(2)(A) permits either party to demand in writing that the other party pro- vide a list of witnesses it intends to call des- ignating which witnesses will be called as experts and a list of documents it intends to introduce at the hearing. The demand shall be served within 15 days of receipt of the notice of hearing. If an insured plans to utilize this process, he should take it upon himself to serve the notice of hearing on behalf of the arbitrator. The obligation is bilateral and the
responses shall be served either in person or by certified mail within 15 days after the demand. This means that the actual arbitra- tion witnesses and evidence potentially must be in place as early as 30 days after the arbitration date is initially set. The list- ed documents shall also be made reason- ably available for inspection prior to the
hearing. It is most expedient to attach the documents to the response. Section 1282.2 (a)(2)(E) of the Code of Civil Procedure allows the arbitrator to hear witnesses or receive evidence not listed in the response if he so chooses. Best practice is to carefully list the witnesses and evidence you actually intend to use at the arbitration to eliminate the risk that witnesses and evidence could be excluded. Also, it demonstrates a level of preparation and confidence, and will make the arbitrator’s job that much easier. Whether or not Code of Civil
Procedure section 1282.2 is utilized, California Rules of Court, rule 3.823, con- cerning rules of evidence at the arbitration hearing, is a must. Rule 3.823 (b)(1) allows introduction of written reports and other documents without foundation. In most cases, this will allow the parties to “make their case” without a significant expense.
With some limited conditions, an arbitrator must receive these documents into evi- dence, including expert reports, medical records and bills, documentary loss of income, property damage repair bills and estimates, police reports and similar docu- ments. The proponent must deliver these documents to the opposing party at least 20 days before the hearing. The opposing party has the right to subpoena the author or custodian of the document and conduct a cross-examination. The arbitrator is not to consider the opinion as to the ultimate fault expressed in the police report. Rule 3.823 (b)(2) allows a party to
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introduce witness statements at the arbitra- tion in lieu of a live appearance if they are made under penalty of perjury and have been delivered to the opposing party within 20 days before the hearing. Because of the “penalty of perjury” requirement, counsel should work with the witnesses early on and not rely on a mere letter or handwritten statement that may or may not be signed under penalty of perjury. The permitted witness statements are
an excellent way to provide the testimony of supporting liability witnesses and other peripheral witnesses who may not be able to attend an arbitration hearing in the mid- dle of the day. A friend or co-worker may be more inclined to provide a statement, rather than appear, to help explain how the injury has affected the insured’s life and ability to participate in various activi- ties of daily living. Similarly, third-party automobile accident witnesses may also be more inclined to provide a witness state- ment rather than be inconvenienced by attendance at an arbitration hearing. Although the opposing party may
demand within 10 days that the witness appear in person, such a demand could actually “backfire” because the witness may be more motivated seeing that the oppos- ing party will not accept his or her state- ment. In addition, the arbitrator may not appreciate the opposing party’s insistence on inconveniencing witnesses and wasting valuable arbitration time for supporting testimony that is essentially undisputed. Finally, rule 3.823 (b)(3) allows the
use of a deposition transcript without the need to show that the deponent is “unavail- able as a witness,” as long as the proponent provides 20 days notice of his intention to
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