One thing you discover quickly in efforts to provide information to advocates on presenting their most effective Damages argument in Arbitration is there not much information available on the subject. Other than Damages in International Arbitration cases (go ahead and Google it)…there is simply not much guidance offered on the topic to claim professionals. And so it is with ‘Reasonable Certainty’ for the evaluation and Awarding of Damages. Yes, we know it is an evidentiary threshold parties should strive to meet, but we also know the characteristic for what that truly means is hard to pin down. Even the Rules of the Arbitration provider may not provide much guidance.
This is partly why we discussed in the last issue the importance of advocates keeping in mind the Burden of Proof standard inherent in subrogation arbitration cases. In other words; ‘it is more likely than not’ that the Damages were appropriately incurred and ‘reasonable” based on the Evidence submitted. Conversely, a Respondent might argue ‘it is more likely than not’; that the Damages should not be Awarded or ‘it is more likely than not’ that these Damages should be reduced as the request is not ‘reasonable’.
Remember, Arbitrators do not want to speculate and conjecture, it’s not part of their DNA. The amounts parties seek or refute must be offered with sufficient Evidence to allow for an intelligent estimate by the Arbitrator. In essence, a ‘Common Sense’ Award.
Why bring this topic up if there is no definite definition? Because as advocates you need to approach your case construction with deference to knowing the Arbitrator will apply their individual traits and characteristics to some form of ‘reasonable certainty’. So do your best to give them the Evidence that instills that ‘certain’ confidence in them –