Rule 5 HEARING
Notice of Hearing. The panel shall set the date, time and place for the hearing. The panel shall send notice of the hearing to the parties not less than [thirty] but no more than [sixty] days in advance of the hearing date, unless otherwise agreed by the parties.
Representation by Counsel. Any party may be represented by counsel.
Recording of Proceedings. A party to the proceedings may make arrangements to have the hearing reported at the party's own expense, provided notice is given to the other parties and the panel at least [five] days prior to the scheduled hearing. If a party orders a transcript, that party shall provide a copy of the transcript to the panel free of charge. Any other party is entitled at his or her own expense to acquire a copy of the transcript by making arrangements directly with the reporter. A panel, in its discretion, may make arrangements to have a hearing recorded and the parties may obtain a copy at their own expense.
Continuances. For good cause shown, a panel may continue a hearing upon the request of a party or upon the panel's own motion.
Oaths and Affirmations. The testimony of witnesses shall be by oath or affirmation.
Panel Quorums. All three arbitrators shall be required for a quorum where the panel consists of three members. A panel of three arbitrators shall act with the concurrence of at least two arbitrators.
Appearance; Failure of a Party to Appear. Appearance by a party at a scheduled hearing shall constitute waiver by said party of any deficiency with respect to the giving of notice of hearing. The panel may proceed in the absence of any party or representative who, after due notice, fails either to be present or to obtain a continuance. A decision shall not be made solely on the default of a party. The panel shall require parties who are present to submit such evidence as the panel may require to issue a decision.
Waiver of Personal Appearance. Any party may waive personal appearance and submit testimony and exhibits by written declaration under oath to the panel. Such declarations shall be filed with the panel at least [ten] days prior to the hearing. If all parties, in writing, waive appearances at a hearing, the matter may be decided on the basis of written submissions. If the panel concludes that oral presentations are necessary, the panel may schedule a hearing.
Telephonic Hearings. In its discretion, a panel may permit a party to appear or present witness testimony at the hearing by telephonic conference call. The costs of the telephone call shall be paid by the party.
Stipulations. Agreements between the parties as to issues not in dispute and the voluntary exchange of documents prior to the hearing are encouraged.
Evidence. The panel shall accept such evidence as is relevant and material to the dispute and request additional evidence as necessary to understand and resolve the dispute. The rules of evidence [of the jurisdiction] need not be strictly followed. The parties shall be entitled to be heard, to present evidence and to cross-examine parties and witnesses. The panel shall judge the relevance and materiality of the evidence.
Subpoenas. Upon request of a party and for good cause shown, or on its own initiative, the panel may issue subpoenas for witnesses or documents necessary to a resolution of the dispute. The requesting party shall be responsible for service of the subpoenas.
Reopening of Hearing. For good cause shown, the panel may reopen the hearing at any time before a decision is issued.
Death or Incompetency of a Party. In the event of death or incompetency of a party, the personal representative of the deceased party or the guardian or conservator of the incompetent may be substituted.
Burden of Proof. The burden of proof shall be on the lawyer to prove the reasonableness of the fee by a preponderance of the evidence.
The goal of these rules is to provide a setting for hearings that is informal yet fair. To that end, the panel has discretion to grant postponements but need not permit the process to be subverted by unexcused absences. The panel will receive the evidence and testimony offered and judge its relevance and materiality. While the hearing may be conducted informally, witnesses should be required to testify under oath.
There is no provision for formal discovery; however, the panel has the power of subpoena, subject to rules of relevancy and materiality.
The burden of proof in fee arbitration is on the lawyer to prove the reasonableness of the fee by a preponderance of the evidence. This is consistent with the ABA Model Rules of Professional Conduct Rule 1.5 or its equivalent, which provides that a lawyer's fee shall be reasonable.
The panel may consider evidence relating to claims of malpractice and professional misconduct, but only to the extent that those claims bear upon the fees, costs, or both to which the lawyer is entitled. The panel may not award affirmative relief in the form of damages for injuries underlying any such claim.
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