LEGAL UPDATE
Featuring Comments On Important Legal Developments
Must Parties Appear at Court Mandated Arbitration?
In response to an ever growing caseload, the court mandated arbitration program, established by General Statutes § 52-549u, was designed to clear congestion in Connecticut civil jury dockets and further the important goal of judicial economy. Pursuant to this statute, “the judges of the Superior Court may make such rules as they deem necessary to provide a procedure in accordance with which the court, in its discretion, may refer to an arbitrator... any civil action in which in the discretion of the court, the reasonable expectation of a judgment is less than fifty thousand dollars exclusive of legal interest and costs and in which a claim for a trial by jury and a certificate of closed pleadings have been filed.” Decisions by an arbitrator are usually non binding, as under General Statutes § 52-549z(a), an arbitrator's decision may be appealed through a claim for a trial de novo, “provided the appeal is taken by a party who did not fail to appear at the hearing.” (Emphasis added.) General Statutes § 52-549z(c).
It has long been established that a party or its counsel can forfeit the right to a trial de novo following an adverse arbiter's decision if they had failed to attend the arbitration. In Shelby Mutual Ins. Co. v. Bishop, Kirk and Saunders, Inc., 13 Conn.App. 189, 535 A.2d 387 (1988), neither the defendants nor their counsel appeared for arbitration. Following an adverse decision by the arbitrator, the defendants were denied a trial de novo by the Court. Upholding the lower court on appeal, the Connecticut Appellate Court explained that, “[u]nder the provisions of 52-549z(c) and [23-66(c)], only a party who has appeared at the hearing may claim a trial de novo. This is a reasonable requirement and does not operate to abolish the right to a trial by jury. It is not unreasonable to require that a party attend the hearing when a case has been assigned by the court.”
What remained unclear following the Shelby decision was what it meant to “appear” for an arbitration under General Statutes § 52-549z(c), e.g. – must the arbitration be attended by the parties, their counsel, or both?
Courts later determined that a defendant need not personally appear at arbitration. In Black v. Hamann, Superior Court, judicial district of New Haven at New Haven, Docket No. 0412165 (February 17, 1999) (Silbert, J.) (24 C onn. L. R ptr. 80), the defendants' counsel, but not the defendant, attended at the arbitration hearing. After the arbitrator rendered a decision in favor of the plaintiff, the defendants made a claim for a trial de novo. In its decision granting defendant's motion the Court opined that: “no purpose would be served by a general requirement that the defendant appear personally… especially since many arbitration cases are ones which are effectively hearings in damages, proceedings in which liability is not seriously contested, if at all, and the only issue in dispute is fair, just and reasonable damages. On this issue, the defendant himself, herself or itself would have nothing to offer, but the defendant's attorney would be able to cross examine, put on other evidence, and make a closing argument. Just as it is clear that part of the purpose of the statute is to prevent a sham arbitration, so it is also clear that the legislature would not have required a token appearance by the defendant in a proceeding in which such participation would be irrelevant.”
The reasoning in Black v. Hamann was followed by the court in Tartaris v. Laffin, Superior Court, judicial district of New Haven at New Haven, Docket No. 041327, 26 C onn. L. R ptr. 436 ( February 2, 2000 ) (Alander, J.), where the plaintiff, his attorney, and the defendant's attorney were present, but the defendant was not. Appealing from an arbiter's decision for the plaintiff, the defendant claimed a trial de novo, “because his attorney appeared on his behalf at the arbitration hearing.” The Tartaris court held that the defendant could appear through his counsel and observed that, “[t]he purpose underlying the statute establishing the arbitration process is to reduce the backlog of civil cases awaiting jury trials by diverting cases of lesser value to arbitration in the hope that some of the cases will settle as a result. This purpose is fulfilled by an arbitration proceeding attended by the defendant through his counsel. Such a scenario affords both parties the opportunity to see what an impartial decision maker would do when presented with the claims of each party and to settle the case in accordance with the decision of the arbitrator. The presence of the defendant's attorney at the arbitration hearing means that he will be aware of the basis of the arbitrator's award, if any, and in a position to advise the defendant on whether the award should be accepted. Since the defendant is under no obligation to present any evidence at the arbitration hearing, more is not required.” The defendant in Tartaris was allowed to seek a trial de novo.
The case of Caputo v. Blackie, Superior Court, judicial district of New Haven at New Haven, Docket No. 0402197 (September 14, 2000) (Silbert, J.) presented a fact pattern different from those previously considered by our courts. Here, the plaintiff was personally absent and failed to offer his own testimony in support of his case. Moreover, his attorney, who physically attended the arbitration, failed to present any witnesses or evidence of any kind at the hearing. Further, no continuance or leave to present the case informally was requested. The Court noted that, unlike the defendant in Tartaris, the present plaintiff and his counsel did have an obligation to present evidence at the arbitration hearing as it is the plaintiff who bears the burden of proof. The Court felt that if plaintiff or his counsel desired a continuance or leave to present their case informally, they could and should have sought to do so. The court ruled that by not doing so, plaintiff made a mockery of the arbitration proceeding, and denied plaintiff's request for trial de novo accordingly.
While it appears clear, based upon the above superior court cases, that a plaintiff must attend an arbitration and put forth evidence while a defendant need not personally do so, the essence of the law concerning denial of a trial de novo following an arbitration proceeding was put fourth by the Caoputo Court; “ A party and an attorney who make a sham out of an arbitration mandated by our statutes and rules must bear the consequences.” It is unclear how other superior court Judges will rule and / or if our Appellate Court will follow the holdings discussed here. As such, in situations where the individual defendant will not be appearing, it may be prudent to obtain plaintiff's counsel's agreement that the appearance is not necessary. Further, as the rationale in Black v. Hamann was predicated upon the notion that in most arbitration the only real issue is damages, such an agreement appears very prudent in a case where you may ultimately want to contest liability at a trial de novo.
Christopher Russo, Esq.
crusso@gmflaw.com
March 26, 2007
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