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Attorney Arbitrators Should Research Law: Permission of the Parties to Do so Is Not Required - Chapter 20 - AAA Handbook on Arbitration Practice - Second Edition

Author(s): 
M. Ross Shulmister
Page Count: 
14 pages
Media Description: 
1 PDF Download
Published: 
December, 2015
Author Detail: 

M. Ross Shulmister is a retired USAF officer, who has been a Florida attorney for more than 40 years, also serving as an AAA arbitrator for more than 30 years. He serves on AAA's Commercial, Construction, and Consumer panels. He is also certified as a state court arbitrator by the Fla. Supreme Court, serving in the 17th Circuit (Ft. Lauderdale area).

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Originally from:

AAA Handbook on Arbitration Practice - Second Edition

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CHAPTER 20

ATTORNEY ARBITRATORS SHOULD RESEARCH
LAW: PERMISSION OF THE PARTIES TO DO SO IS
NOT REQUIRED
M. Ross Shulmister
 
I. Introduction
 
An article recently published in the New York State Bar Association
Journal (NYSBAJ), May 2013, is titled, “Can an Arbitrator Conduct
Independent Legal Research? If Not, Why Not?” The author says “no”
and explains why he believes he is correct.
 
The NYSBAJ article may not have been vetted, because the grounds
for the article’s conclusions are not supported by the authorities quoted.
Indeed, in most cases, arbitrators (at least those who are attorneys) are
not only permitted to conduct independent research of the law, but are
actually under at least a moral obligation to do so, even if the parties
argue their positions on what the law is.
 
As a preliminary caveat, it is clear in both judicial and non-judicial
fora that the decision maker is not permitted to independently research
facts. As discussed below, that prohibition generally extends to
specialized knowledge that might have been provided by an expert
witness.
 
II. Understanding Opinions in Appellate Cases
 
This discussion will analyze appellate case opinions, so it may be
helpful to non-attorney arbitrators to understand how case decisions are
properly cited, analyzed, and interpreted by lawyers and judges.