1. Pursuant to the arbitrator's authority under AAA Commercial Rule R‑35(a), all "direct" witness testimony is to be presented by written witness statement, except for the following.
COMMENT: Written testimony is expressly provided for by AAA Commercial Rule R‑35(a) and is clearly contemplated by AAA Employment Rule 8(o) (testimony by affidavit), as well as in other providers' arbitration rules, and are a staple of international arbitration and of federal-court bench trials.
(a) A witness may orally "recap" key points of the witness's written testimony.
COMMENT: It can be helpful to the arbitrator's understanding of a witness's written testimony for the witness to "guide" the arbitrator through the written statement. The witness's doing so can also help to get the witness comfortable "on the stand" in preparation for cross-examination.
(b) No written statement is required of any witness, not employed by or otherwise under the control of the party presenting the witness's testimony, who states on the record that he or she refused to provide such a written witness statement.
(c) A witness may testify "live" on direct examination for other good reason with the arbitrator's approval.
2. Each version of a witness statement provided to another party is to be numbered as a separate exhibit.
COMMENT: MCL 12.51 calls for written witness statements to be marked as exhibits. Giving separate exhibit numbers to different drafts of a witness statement can help keep the drafts straight if differences between the drafts become relevant.
3. Each witness statement is to include the following, in short, separate, paragraphs; each paragraph is to be numbered except those containing spaces for signatures and notarization:
(1) the full name and address of the witness;
(2) a summary of the witness's education;
(3) a summary of the witness's work history for at least the preceding ten years; and
(4) if the witness's testimony expresses any opinion as an expert, the witness's C.V. or other evidence supporting the witness's qualifications;
(5) a detailed statement of all the facts to which the witness would testify "on direct" if testifying orally at the hearing, including facts sufficient for foundation;
(6) an oath (or an affirmation, or a declaration under penalty of perjury) of the truth of the matters stated in the witness statement;
(7) spaces for the witness's signature and the date and place of signature and
(8) if required by this Hearing Plan or by the law of the place where the witness signs the statement, a space for a notary certificate.
COMMENT: Some of the provisions above are modeled on Article 4.5 of the International Bar Association Rules on the Taking of Evidence in International Arbitration (2010) (IBA Rules).
4. Only the final draft of a witness statement need be signed.
5. Each witness statement is to be served on the arbitrator and all other parties as provided in this Hearing Plan.
6. Each party is to serve the other with a copy, marked as an exhibit, of any document or other evidence that (1) is referenced in any version of a witness statement, and (2) was neither (A) previously provided to the other party nor (B) provided by the other party.
7. If a party calling a witness to testify does not timely provide a written witness statement for that witness, then the witness will not be allowed to testify except (1) by agreement; (2) for impeachment or rebuttal purposes; or (3) as provided in [paragraph 1].
8. Per AAA Commercial Rule R‑35(a), if a party submits a written witness statement for a witness, any party may designate the witness as being required to appear at the hearing. The designating party is to notify the arbitrator and all other parties of its designation no later than ten business days before the start of the hearing, otherwise, the party will be deemed to have waived its right to make the designation as to that witness.
9. A party's failure to designate a witness as being required to appear at the hearing is not a stipulation to the truth or admissibility of any part of the witness's written statement.
COMMENT: This provision is modeled on Article 4.8 of the IBA Rules.
10. Per AAA Commercial Rule R‑35(a), if a witness does not appear at the hearing after being notified to do so, then the arbitrator may disregard the written witness statement or make such other order as the arbitrator may consider to be just and reasonable.
11. The arbitrator will give little or no weight to conclusory assertions or legal arguments in written witness statements.
12. If a witness provides a written witness statement and does appear for examination at the hearing, then he or she can expect the following.
COMMENT: The procedure of this section largely tracks that of MCL 12.51.
(a) The witness is to be sworn and to orally adopt his or her written statement; otherwise, the written statement will be disregarded.
(b) Counsel for the calling party may (but need not) conduct a brief direct examination in which the witness summarizes key points of his or her written statement.
(c) The direct examination must be substantially limited to the matters stated in the witness's written statement (this will not preclude the calling party's questioning the witness for purposes of rebuttal or impeachment of another witness).
(d) After the oral direct examination, the witness will be subject to oral cross-examination, redirect examination, and questioning by the arbitrator.
13. The written statement of a witness who is not designated as being required to appear at the hearing must be sworn by the witness in the same manner as required by law for an affidavit (or, if permitted by applicable law, signed under penalty of perjury), otherwise the arbitrator will not consider the statement.