I think there is a definite difference in testimony between arbitration and hearing where the parties are coached on the rules by the arbitrator. While some foundation is necessary for the arbitrator's recommendation to the parties, I believe it's wise to limit that discussion to how the arbitrator foresees the outcome of a hearing and avoid discussion of how the facts are applied in a rules analysis. And I believe it's worthwhile reminding the parties, if the parties are proceeding to a hearing, that should the stories change at the hearing, there will likely be a sportsmanship if not a misconduct issue.

As for the hearing, I believe it very beneficial to have a less experienced judge observe the arbitration for training purposes, and then attend the hearing just long enough to confirm the stories remain the same. In my experience, when I indicate to the parties that the observer will attend the hearing, the stories always align. If there is only one judge available for arbitration, I think attending the hearing as an observer is worthwhile. There is no harm as the arbitrator is not going to act as a witness nor participate in deliberations. However, I do not think including the arbitrator on the panel is a good idea, if for no other reason than the optics. It is easy to accuse the arbitrator of not only having made their decision before the hearing, but swaying the rest of the panel based on their bias. While that is probably not likely, I believe it just appears more neutral to not include the arbitrator on the panel.

And as a final note, acquired through experience, do not agree to allow an interested party to observe arbitration even if they won't be a witness. It would seem harmless, but they use what they learn from the arbitration to coach their party.

The process for arbitration I have followed with success - thus far is determining validity, hearing both stories and telling the participants I will call A & B that A broke a rule, or B broke a rule or both broke a rule - and the penalty for that breach or no rule was broken. Arbitration is not subject to appeal. Once the arbitration is accepted, I will discuss the 'why" for my decision. I never mention rules before the hearing is over and the outcome is accepted.

I am working off the 2006 Judges Manual...and it states on Page 87 (Section 10.2) that"

"The arbitration judge must not serve as a member of the protest
committee impaneled to hear that same protest. There are two reasons for
this. First, the arbitration judge will always be seen by the competitors to
have already made up his mind. Second, the arbitrator will invariably have
evidence obtained during arbitration that will not be available in the protest
hearing."

At our recent Club Judge course, we were taught:

1. Unless a penalty is accepted and the paperwork signed, the arbitrator should simply state "If this goes to hearing, I believe XXX will incur a penalty."
2. When the inevitable "why?" comes up, you state that you are not at liberty to discuss it until a penalty is taken or the protest hearing concludes.
3. The arbitrator must not be a member of the protest committee.
4. The arbitrator is encouraged to sit as an observer during the hearing.

I would imagine that if the arbitrator was observing, they could offer testimony after the competitor testimonies if they could be questioned by both competitors. I also think it is only fair that the arbitrator leave after testimony and it would be a good idea to be visibly leaving with the competitors so no allegation of testimony without competitors present would be forthcoming.

Oops .. my apologies for not being clear, my quotes are from the US Sailing Judges Manual 2017-2020.. not the WS International Judges Manual 2017.

Ang

Where have you found the US Sailing Judge's Manual 2017-2020? I have looked for it to go "live" and haven't seen that.

John P. I believe it is available once you log-in to US Sailing website. Ang

I am signed in and it says "Judges Manual 2017-2020 – this document has been removed for correction and will be replaced shortly."

To add to this discussion .. and to open it up internationally, here are some references (notably different from US Sailing's JM).

From the IJM 2017 ..

• L.1 "If the arbitrator is member of the protest committee or jury, he may participate on the panel that will decide the protest if it goes to a hearing, except if a party objects. It is important to keep a strong protest committee available for hearings, for example with international juries of five judges or protest committee of at least three judges. The arbitrator's presence at the hearing as a member of the panel would help to keep the information presented in thehearing consistent with the information presented in the arbitration meeting."
• L.3 "Testimony given during arbitration remains confidential and the arbitrator must not discuss any aspect of the arbitration with the protest committee before the hearing. The judge who held the arbitration meeting shall not be called as a witness during any subsequent protest hearing as the earlier testimony obtained by the arbitrator is not first hand. The arbitrator may be called as a witness if there is a subsequent hearing under rule 69 against one of the parties for lying in the protest hearing.
• L.5 "If another judge would like to learn the arbitration process, it is acceptable to allow him or her to attend the arbitration meeting as an observer, as long as both parties agree.

John P. I downloaded mine March 2018. Revision history of my edition shows last edit 1/1/2017 - Ang

Paul Z,

Is that what you do for both US and International events? In other words, since the last US-JM didn't couch those items in terms of requirements, do you blend more toward the IJM's guidance for all of your events regardless of where they are?

Ang

It varies based on what the CJ wants to do for the event. Because the IJM allows for an arbitrator to be on the hearing panel, some CJ's, especially Europeans, will allow that. Most Americans I know don't do that because of their training and the USJM. I don't think there is a right or wrong way to do it. But I think a good negotiator does things differently than a judge, so by the time an arbitration is done, the arbitrator has a hard time switching roles, at least in the eyes of the parties.

And I don't know of nor have experienced any objection to an arbitrator sitting in as an observer in a hearing. That seems to be acceptable worldwide. Honestly it is probably driven more by the number of judges and protests at the event. Sometimes there just isn't time to sit in the hearing. Though I still admonish the parties about changing their stories...

OK .. so how does it work in practice then?

Let's say an arbitrator is either sitting in as an observer or sitting on the jury. Either way, the testimony they heard as arbitrator is confidential, right?

As an observer, they can't say anything, make funny faces, shake their head, or communicate to jury during the hearing if they hear a change of story.

As a jury member, they can't challenge testimony in the hearing based upon what was said during arbitration.

So .. functionally .. and in the timeline of hearing testimony in the post-arbitration protest hearing.. how (and when) does the arbitrator make their feelings known (in both instances) and how is that supposed to be handled?

Ang

Good point. As the arbitrator now observer is not on the hearing panel, the panel needs to be sure to treat the arbitrator as an observer. But should the testimony not match what was said in arbitration, the observer should request the hearing be stopped and consult privately with the panel. The observer is giving the panel a report, which can be handled by the panel as they see fit. But the panel cannot accept testimony from the observer without the parties present. The observer will need to give testimony in the hearing if the panel wishes to proceed under RRS 2 or as a witness at a 69 hearing.

But I've never seen this happen. Having the observer in the room seems to keep the testimony aligned with the arbitration.

... and what if the arbitrator IS on the jury? They would request a pause in the proceedings and give a report to the other members? .. or wait until the full proceedings are over, provide their report, open an RRS69 if desired ... and then after that possibly reopen the old protest with the new information if the RRS69 hearing finds that false testimony was given?

The last USJM (now pulled for revision) had a section dedicated to this discussion ..

9.5 PC Concerns on Changing Testimony
If, in the unusual case the PC becomes concerned that one of the parties has changed their testimony significantly from what was said at arbitration, the protest committee should first remind all parties that intentionally changing their testimony would be considered lying and would be taken very seriously - including possible grounds for a misconduct hearing. Normally this would be a sufficient deterrent. If necessary, the protest committee could convene a hearing under rule 69 to investigate the alleged lying, and during that hearing, they could call the arbitrator as a witness.

I guess since the USJM specifically recommends against having the arbitrator in the room or on the jury, the USJM doesn't address or describe how that interjection should occur.

I think the answer is yes. A member of the panel may give testimony (this is not true under some local prescriptions) so the arbitrator now judge should stop the hearing and request a private consult with the rest of the panel. Delay in reporting this issue just causes a longer hearing as after the report, the panel may have to back up and ask other questions of the party/witness. But if the information is going to be used against a party, that testimony has be given during a relevant hearing, thus the judge is going to need to give evidence with the parties in the room if the panel wishes to proceed on the issue. But as you can see, this can get messy if the arbitrator is now a judge giving testimony...

OK .. so this is where I'm getting confused.

I'm under the impression the question of whether there was a significant change of testimony that reaches to the level of RRS2 or RRS69 cannot be addressed in the post-arbitration Part 2 protest hearing. The arbitrator is not a witness to the original incident which spawned the arbitration and hearing. The question of the changing testimony and RRS69 is a new separate incident .. and thus wouldn't that require a separate hearing?

So, in practice, aren't we talking about the following process? ....

1. arbitrator (observer or jury member) hears a significant change in the story benefiting the teller
2. arbitrator asks for a pause in the protest hearing and provides a report to the panel
3. panel privately decides whether the change is significant enough to pursue RRS69
   1. If "yes", panel suspends current protest hearing and opens a separate RRS69 hearing (Question: can/should it be the same jurors?)
   2. If "no", the panel keeps the arbitrator's report confidential? .. and resumes the protest hearing in process?
4. assuming that a RRS69 hearing is held, that panel decides that RRS69 was NOT violated ..
   1. that jury reports back to the protest hearing jury (if different)?
   2. the original protest hearing is continued and is RRS69 defendant is now free to continue using the alledged changed story?
5. assuming that RRS69 hearing is held, that panel decides that RRS69 WAS violated ..
   1. that jury reports back to the protest hearing, reporting to the protest jury the story which was consistent with the arbitration story?
   2. the original protest hearing is continued and is RRS69 defendant is now bound to use the arbitration story?

Would it be preferable to leave this to the parties to the hearing? If one of the parties alleges that testimony has significantly changed, the hearing could be paused while that is explored. I think it would go something like this:

1. Arbitration happens, protest moves to a hearing.
2. During testimony of one party, the other party claims the testimony has changed.
3. Protest committee asks the party who is accused whether or not their testimony is the same as the testimony they gave during arbitration.
4. If they claim the testimony is the same, the hearing is put on hold while the arbitrator is called in to recap the testimony before the protest committee. This is fundamentally exploring whether this report of misconduct is founded.
5. The protest committee decides if this should move to a rule 69 after that testimony and questions by the parties.
6. If the claim is that the testimony changed....lying to the arbitrator, you consider 69 action.
7. If the claim is that they told the truth then and revise the protest testimony, the hearing is paused while 69 is considered.
8. The original hearing moves forward after the issues are resolved.

This allows the arbitrator to be an unbiased witness, and is probably cleaner because there can be no allegation of bias or appropriate roles of the protest committee if the arbitrator didn't make the allegation. As a competitor, I would want to know that is how it works. Maybe the right thing is a reminder at the beginning of either the arbitration or hearing that if one of the competitors alleges a material change in testimony, that claim will be investigated as potential misconduct.

I'm not sure lying during a hearing is a separate incident. It follows because of and is connected to the primary incident. "But for" the incident, there would not be an issue. The question is whether the panel wants to consider the behavior unsportsmanlike under RRS 2 rather than misconduct under RRS 69.

As for handling the testimony from the hearing, the panel always weighs the creditability of witnesses and their testimony. Each judge must 'balance the probabilities" of the evidence and make a decision. The panel could choose to wait until after a misconduct hearing if that is scheduled, but more than likely they don't need to. They can make a decision based on the evidence. And if the panel decides to conduct a misconduct hearing, that is a separate matter to be undertaken under the specific procedures and guidelines for such hearings. I believe it good practice to give the party 24 hours notice when possible before holding a hearing, and would not want to rush it because it is holding up a protest hearing.

My apologies for coming late to this discussion.

My first observation is that the WS Judges Manual changed the policy about arbitrators sitting on protest committees in the 2013 edition.

A very significant further change occurred with the publication of the Appendix T to the 2017 RRS, which now makes it clear that an Arbitrator does not 'decide' anything: the Arbotrator expresses an opinion (based on the limited descriptions of the incident given only by the boats' representatives) about what a protest committee is likely to decide. This very significantly distances an Arbitrator from allegations of bias or prejudice, which consists of demonstrating that the person's mind is made up and is unlikely to change: it is obvious that an Arbitrator will be willing to change their opinion in the light of further evidence in a hearing.

The current WS Judges Manual explains some of the advantages of the arbitrator being a member of the protest committee.

I would add a fuither consideration, very applicable at club and regional level: if you keep the arbitrator off the protest committee, you are keeping one of your best judges (at club level, maybe your only qualified judge) off the protest committee. At club level, you can't afford to waste judges like this. The Arbitrator had better be one of your best judges. A poor judge acting as Arbitrator is going to be a poor Arbitrator and possibly do more harm than good.

I have interlined some comments on recent posts below.

Paul Zupan
said

It varies based on what the CJ wants to do for the event. Because the IJM allows for an arbitrator to be on the hearing panel, some CJ's, especially Europeans, will allow that. Most Americans I know don't do that because of their training and the USJM. I don't think there is a right or wrong way to do it. But I think a good negotiator does things differently than a judge, so by the time an arbitration is done, the arbitrator has a hard time switching roles, at least in the eyes of the parties.

I don't agree that an arbitrator has anything to do with 'negotiation'. The WS JM Section L1 explains the difference between Arbitration and Mediation, and the key difference is that in Arbitration, there is no notion of negotiation ro compromise.

All an arbitrator does is listen to the descriptions, make mental findings of facts found, and apply the rules to reach a conclusion: this is exactly the role of a judge in a protest hearing.

And I don't know of nor have experienced any objection to an arbitrator sitting in as an observer in a hearing.

I suggest that this is a somewhat artificial work-around to comply with the now-withdrawn US Judges Manual.

Anyone can sit in a protest hearing as an observer, as long as they obey the rules for observers, in WS JM Section K7 Created: Today 14:22
Angelo Guarino
said

OK .. so how does it work in practice then?

Let's say an arbitrator is either sitting in as an observer or sitting on the jury. Either way, the testimony they heard as arbitrator is confidential, right?

Right. WS JM Section L3, last paragraph

As an observer, they can't say anything, make funny faces, shake their head, or communicate to jury during the hearing if they hear a change of story.

As a jury member, they can't challenge testimony in the hearing based upon what was said during arbitration.

So .. functionally .. and in the timeline of hearing testimony in the post-arbitration protest hearing.. how (and when) does the arbitrator make their feelings known (in both instances) and how is that supposed to be handled?

When the Arbitrator makes a rule 69 report to the protest committee chair, or, the protest committee otherwise decides that there should be a rule 69 investigation

Good point. As the arbitrator now observer is not on the hearing panel, the panel needs to be sure to treat the arbitrator as an observer. But should the testimony not match what was said in arbitration, the observer should request the hearing be stopped and consult privately with the panel.

The observer is giving the panel a report, which can be handled by the panel as they see fit.

But the panel cannot accept testimony from the observer without the parties present.

he observer will need to give testimony in the hearing

if the panel wishes to proceed under RRS 2

or as a witness at a 69 hearing.

... and what if the arbitrator IS on the jury? They would request a pause in the proceedings and give a report to the other members? .. or wait until the full proceedings are over, provide their report, open an RRS69 if desired ... and then after that possibly reopen the old protest with the new information if the RRS69 hearing finds that false testimony was given?

I think the answer is yes. A member of the panel may give testimony

so the arbitrator now judge should stop the hearing and request a private consult with the rest of the panel.

I think this is likely to cause big problems.

• the arbitrator/judge must not give testimony
• a judge must not give any evidence unless it is in open hearing

If the arbitrator/judge starts wriggling and the protest committee adjourns for discussion, the party is going to pretty easily put two and two together and can immediately see apellable error in the protest committee's procedures.

Delay in reporting this issue just causes a longer hearing as after the report, the panel may have to back up and ask other questions of the party/witness.

I think you just have to rely on the arbitrator/judge to ask those necessary questions, bearing in mind that all you are trying to do, in this hearing is to find facts relevant to the protest, and the how, when, and why of any deception are irrelevant.

But if the information is going to be used against a party, that testimony has be given during a relevant hearing, thus the judge is going to need to give evidence with the parties in the room if the panel wishes to proceed on the issue. But as you can see, this can get messy if the arbitrator is now a judge giving testimony...

Becomes much simpler if you do the boat vs boat protest first then go on to the rule 69 report and consideration after.

OK .. so this is where I'm getting confused.

I'm under the impression the question of whether there was a significant change of testimony that reaches to the level of RRS2 or RRS69 cannot be addressed in the post-arbitration Part 2 protest hearing.

The arbitrator is not a witness to the original incident which spawned the arbitration and hearing. The question of the changing testimony and RRS69 is a new separate incident .. and thus wouldn't that require a separate hearing?

So, in practice, aren't we talking about the following process? ....

1. arbitrator (observer or jury member) hears a significant change in the story benefiting the teller
2. arbitrator asks for a pause in the protest hearing and provides a report to the panel
   If an observer, not permitted to do this: not permitted to speak during the hearing
   If a judge, should not do this: see discussion above
3. panel privately decides whether the change is significant enough to pursue RRS69
   1. If "yes", panel suspends current protest hearing and opens a separate RRS69 hearing (Question: can/should it be the same jurors?)
   2. If "no", the panel keeps the arbitrator's report confidential? .. and resumes the protest hearing in process?
      Whether there is a rule 69 issue in the wind or not should not make any difference to the hearing of the boat vs boat protest.
4. assuming that a RRS69 hearing is held, that panel decides that RRS69 was NOT violated ..
   1. that jury reports back to the protest hearing jury (if different)?
   2. the original protest hearing is continued and is RRS69 defendant is now free to continue using the alledged changed story?
      A decision of a rule 69 hearing should not make any difference to the hearing of a boat vs boat protest, except possibly disqualification or exclusion, which can be applied retrospectively if necessary.
5. assuming that RRS69 hearing is held, that panel decides that RRS69 WAS violated ..
   1. that jury reports back to the protest hearing, reporting to the protest jury the story which was consistent with the arbitration story?
   2. the original protest hearing is continued and is RRS69 defendant is now bound to use the arbitration story?
      See discussion above: interrupting the original protest hearing is likely to raise apprehension of impropriety, and is unnecessary.
      
      Just hear and decide the boat vs boat protest, THEN do whatever you have to do about rule 69.

John A .. thanks for jumping in.

The 2017 IJM has,

"The arbitrator may be called as a witness if there is a subsequent hearing under rule 69 against one of the parties for lying in the protest hearing."

The 2017 USJM has been pulled for revision so we don't know if this section will be the same

9.5 PC Concerns on Changing Testimony
If, in the unusual case the PC becomes concerned that one of the parties has changed their testimony significantly from what was said at arbitration, the protest committee should first remind all parties that intentionally changing their testimony would be considered lying and would be taken very seriously - including possible grounds for a misconduct hearing. Normally this would be a sufficient deterrent. If necessary, the protest committee could convene a hearing under rule 69 to investigate the alleged lying, and during that hearing, they could call the arbitrator as a witness.

So, there is a consistency there. The only place the arbitrator can chime-in as a witness is in a separate hearing. It seems the arbitrator can not ask for a pause in the hearing, either as an observer or a member of the jury. Also, as a member of the jury, they cannot accuse the testifier that they are changing their story during that hearing.

I've been trying to explore and understand process. Let me take another whack at it below, taking what everyone's offered and pulling it together into process template (as an exercise for my own understanding).

There are really 3 scenarios I think in which the PC can "become concerned" that there is a significant change in testimony.
The concern is presented by:

1. a Party to the arbitration and protest hearing
2. The Arbitrator sitting as an observer
3. The Arbitrator as a member of the jury

.. let me try flushing-out each of those.

1) A Party to the arbitration makes a claim that the other Party significantly changed their testimony during the Protest hearing while the hearing is open

1. Party claims during protest-hearing that the story of the other Party has significantly changed
2. Borrowing from USJM, the PC, "remind all parties that intentionally changing their testimony would be considered lying and would be taken very seriously - including possible grounds for a misconduct hearing."
3. PC continues hearing uninterrupted (they do not pause and call Arbitrator for private huddle)
4. PC decides case weighing evidence and testimony given and closes that hearing
5. The PC considers privately whether or not the claim of changing testimony is significant enough to investigate further
6. If "yes", a member of that PC asks the Arbitrator to summarize what was said during arbitration (PC should not share protest-hearing testimony w/Arbitrator)
7. If the PC-member feels there is an issue, the PC asks the Arbitrator to provide a formal report of arbitration testimony
8. If the PC feels the report justifies it, they may open a separate RRS 69 hearing and call the Arbitrator as a witness
9. If the RRS69 hearing concludes the testimony was intentionally significantly changed (lied)
   1. they may impose a penalty on the accused
   2. they report back to the PC that heard the protest that the testimony on which they decided the case was changed and that PC can decide if reopening the case is necessary to evaluate the potential effect of the changed testimony

2) The Arbitrator as Observer believes a significant change in testimony occurred during the Protest hearing

1. The Arbitrator-Observer (AO) during protest-hearing believes the story of one the Parties has significantly changed
2. The AO should sit quietly and not attempt any interaction with the jury to indicate their concern during the protest hearing
3. PC continues hearing uninterrupted (PC is unaware of Arbitrator's concern and other Party says nothing being unaware how change impacts outcome)
4. PC decides case weighing evidence and testimony given and closes that hearing.
5. The Arbitrator approaches the PC after the hearing concludes making them aware of his./her concern (Is this appropriate? .. see Q at bottom)
6. The PC dismisses the Arbitrator and considers privately whether or not the claim of changing testimony is significant enough to investigate further
7. If "yes", the PC asks the Arbitrator to provide a formal report of arbitration testimony
8. If the PC feels the report justifies it, they may open a separate RRS 69 hearing and call the Arbitrator as a witness
9. If the RRS69 hearing concludes the testimony was intentionally significantly changed (lied)
   1. they may impose a penalty on the accused
   2. they report back to the PC that heard the protest that the testimony on which they decided the case was changed and that PC can decide if reopening the case is necessary to evaluate the potential effect of the changed testimony

3) The Arbitrator as Juror believes a significant change in testimony occurred during the Protest hearing

1. The Arbitrator-Juror (AJ) during protest-hearing believes the story of one the Parties has significantly changed
2. The AJ should not indicate to the other jurors or the Parties their concern during the protest hearing
   1. directly by pausing the hearing and discussing the issue with other jurors,
   2. directly by accusing the Party of changing their story, or
   3. indirectly by reminding the Parties that changing their testimony can lead to an RRS69 charge
3. PC continues hearing uninterrupted, but the AJ can ask pointed questions regarding the current testimony
4. PC decides case weighing evidence and testimony given and closes that hearing.
5. The Arbitrator-Juror tells the other jurors after the hearing concludes of their concern
6. The PC considers privately whether or not the claim of changing testimony is significant enough to investigate further
7. If "yes", the PC asks the Arbitrator-Juror to provide a formal report of arbitration testimony
8. If the PC feels the report justifies it, they may open a separate RRS 69 hearing and call the Arbitrator-Juror as a witness (the AJ should not sit on RRS69 jury)
9. If the RRS69 hearing concludes the testimony was intentionally significantly changed (lied)
   1. they may impose a penalty on the accused
   2. they report back to the PC that heard the protest that the testimony on which they decided the case was changed and that PC can decide if reopening the case is necessary to evaluate the potential effect of the changed testimony

How's that? .. and ...

Question: Is #2 appropriate at all? ... or are only #1 and #3 appropriate?

Paul Zupan
said

As for handling the testimony from the hearing, the panel always weighs the creditability of witnesses and their testimony. Each judge must 'balance the probabilities" of the evidence and make a decision. The panel could choose to wait until after a misconduct hearing if that is scheduled, but more than likely they don't need to. They can make a decision based on the evidence. And if the panel decides to conduct a misconduct hearing, that is a separate matter to be undertaken under the specific procedures and guidelines for such hearings. I believe it good practice to give the party 24 hours notice when possible before holding a hearing, and would not want to rush it because it is holding up a protest hearing.

Thank you Paul, good points.

Paul Zupan
said

I'm not sure lying during a hearing is a separate incident. It follows because of and is connected to the primary incident. "But for" the incident, there would not be an issue. The question is whether the panel wants to consider the behavior unsportsmanlike under RRS 2 rather than misconduct under RRS 69.

I don't think that's right.

The 'but for' test is usually taken to be a test of causation. The issue here is not whether the alleged lying was caused by the on-water, protested incident, but whether the lying is the same incident, that is, was the lying the incident that was the subject of the protest being heard. I don't think we can say that by any stretch.

US Appeal 65 seems relevant here:The US test is not causation, but 'inevitable consequence'.

In response to Angelo's latest post.

Firstly, we seem agreed that it is not [usually] necessary to interrupt the hearing of a protest to consider allegations of lying: these matters can be considered by the protest committee after concluding the original protest.

Secondly, if an Arbitrator is not a member of the protest committee hearing a particular protest and by observing that protest hearing or any other means, such as seeing the protest decision, forms a view that a competitor may have lied in a protest (or arbitration) hearing, and thus broken rule 69, it is perfectly proper for the Arbitrator to make a report, in any form to the protest committee. That would be, in terms of rule 69.2( b ), information from any source, or if the Arbitrator was a member of a jury who had not been empanelled for the original protest, from the jury's own observations.

I think it's worth discussing the possible effects of a protest committee concluding that a competitor had lied in a protest hearing.

The starting point, I think, has to be some observation by the protest committee that there is 'inconsistent' testimony. Inconsistencies in a witnesses testimony do not necessarily amount to lying. The chapeau to Appendix M discusses ways in which testimony may quite legitimately vary. I suggest that it is always best for a protest committee to start with the presumption that witnesses are telling the truth to the best of their abilities, rather than the assumption that they are likely to be lying.

It is always permissible for a witness to correct their evidence, and this should be encouraged, not discouraged by immediate accusations of lying. The protest committee may, however ask the witness to explain the inconsistency.

It is also worth noting that a protest committee hearing a protest following an inconclusive arbitration, will not know anything about the description of the incident given by the parties in the arbitration, and thus will not know anything about any 'inconsistency' between any description given in the arbitration and testimony given in the hearing. The protest committee, thus, is not even in a position where it is required to resolve conflicts between two different stories presented by the same party.

What, then, is the possible effect of a conclusion that a party lied, either in the arbitration, or in the protest hearing?

If a protest committee, possibly acting under rule 69 concluded that a person has lied, that would go to that person's credibility as a witness, which might have retrospective effect on some previous protest hearing.

There is, however, a wide range of degree in question here, from a single isolated, possibly hasty, self-exculpatory lie, through to a a connected framework of untruth, on towards 'habitual liar'. There is a corresponding range of diminution of credibility.

A rule 69 hearing is well equipped, and in view of the range of penalties available under rule 69, is obliged to consider these degrees of culpability.

Unless there is a rule 69 conclusion about lying, then a protest committee would probably be unwise to reopen a previous protest on the basis of some allegation of lying.

If a protest committee becomes aware that a rule 69 hearing has concluded that a witness lied in a protest hearing that it had conducted, it might form a view that it may have made a significant error in evaluating the testimony of a witness, and reopen the hearing in accordance with rule 66. If the rule 69 hearing had disqualified a party from the race in the original protest this may be a waste of time, but it may be that a different decision in the original protest is required to do justice to the other party. The key issue, however, for the protest committee would be, if the credibility of a witness is diminished by a rule 69 finding, does taking account of that diminished credibility destroy evidence given in the original protest, or was it good strong evidence, corroborated and confirmed, and thus not necessarily diminished by a changed view of the witnesses credibility.

On another note, it's also useful to consider what might happen if a party accuses the other of lying, or perhaps more politely says 'that's inconsistent with what he said in Arbitration which was ....'

That is hearsay, but there's nothing wrong with hearsay in a protest hearing, we are not bound by the rules of evidence, we can accept hearsay, but of course we should give it only it's appropriate weight.

The protest committee should probably probe the allegation.

The protest committee could say 'XXX says that you said AAA in the arbitration hearing, which is different the testimony you have just given here. :Have you anything to say about that? Have you any explanation for the inconsistency.

The inconsistency and the explanation, and other relevant evidence will primarily lead towards resolution of the inconsistency and relevant facts found. It may, or may not also lead the protest committee to some ideas about rule 69.

John .. based upon your last post, sounds like you agree with how I laid-out the 3 scenarios with the exception that in Scenario #1 (Party claims other Party changed story), that we could add a line in there that it'd be fine to pursue that question within the confines of the PC hearing and the Parties at the Arbitration .. short of calling in the Arbitrator.

Also in regards to reporting back the RRS69 result to reopen previous hearing ... agree that only makes sense if a different boat other than the RRS69 accused was penalized.

Agree? .. or do you have any other edits/suggestions for my templates?

Ang

I think that the detailed process descriptions, while probably useful for clarifying people's thinking, go into excessive detail for what the old US JM described as an unusual case.

Too much detail in procedures can lead to being bound hand and foot when some uncontemplated situation arises.

It seems to me that much difficulty has been caused by the artificial prohibition on an arbitrator sitting on a protest committee which has now been resolved by the WS JM.

As long as a protest committee, when an issue of inconsistency in testimony arises, focuses on resolving the inconsistency by the usual evaluating and balancing processes, and doesn't get distracted from it's primary task of resolving the dispute placed before it by the parties in the protest, and keeps moral and rule 69 considerations for later, I think they should do all right.

John, I think I might have caused a misinterpretation of the my purpose in detailing the scenarios by calling them "templates". A template implies it's something that should be followed .. and that was not my intention .. it was really me playing it out given what rules and expectations apply for my benefit .. so sorry for adding that confusion.

I certainly wasn't intending to suggest what I wrote should be "adopted" in any way by anyone .. informally or formally ... as I said .. "pulling it together into process template (as an exercise for my own understanding)".

So if you would please replace "template" with "recounted scenario" in your mind and look at them with the eye of .. if someone said this is the process they followed .. would that be describing a proper process (assuming the facts and circumstances supported each step) .. not to say that there couldn't be other ways of going about it that could be proper as well.

It's just how my mind works and how I learn .. I need to play it out and map-out the potential potholes.

Ang

In SoCal, the SI's often provide that the Arbitrator may be called upon to testify about what the parties said during the Arbitration hearing. IMO, that is good work-around for this issue.

Another innovative way to address this is issue is for the same judges to sit on the protest hearing as were present during the Arbitration, and the hearing is transformed (and arbitration penalties are no longer available) when the first non-party witness begins to testify. This can also save a considerable amount of time, since the parties only need to explain what happened once. The downside is that two (or more) judges are required for the entire hearing.