Clarifying "Missed Evidence" as a Clerical Error (Rule 4-2)

Image of an error button with a X on itOn rare occasion, the situation arises when an arbitrator expressly states that a specific evidence item "would have been helpful" or "was not submitted" when, in fact, it was properly listed as evidence and submitted by a party. In essence, the arbitrator "missed" the submitted evidence when reviewing the case.

If, at AF's discretion, the arbitrator confirms that the referenced evidence was, in fact, missed or not viewed when the case was originally heard, the arbitrator will be permitted to consider that evidence and amend the decision, if needed. This will be considered a correctable clerical error on the part of the arbitrator in accordance with Rule 4-2 (see definition below).

It is not a correctable clerical error when an arbitrator makes no reference at all to an evidence item and a party perceives it was not reviewed. Arbitrators are trained to comment only on the evidence that influenced their decision, not each evidence item.  See below for examples of what does and does not qualify as missed evidence.

Missed Evidence
  • Arbitrator states there was no police report when in fact, there was
  • Arbitrator states estimate did not include the supplement when the estimate does include the supplemental damages
Not Missed Evidence
  • Arbitrator does not mention the police report, which was submitted
  • Arbitrator does not address a specific argument raised in the contentions
  • Arbitrator “misinterprets” a piece of evidence (in the parties’ opinion)

Article published in: September 2018 E-Bulletin