What appellate attorneys should know about JAMS
When attorneys first confront JAMS arbitration, they typically assume that their appellate instincts and experience will carry over. However, there are some key structural and procedural differences, which can catch you by surprise. Understanding the important differences up front can make your arbitration advocacy sharper, help you calibrate expectations, and avoid missteps. This article walks through some key ways that JAMS arbitration rules—particularly JAMS Streamlined Arbitration Rules & Procedures—differ from the Appellate Rules within the California Rules of Court.
1. Different starting point: consent vs. statutory mandate
In the courts of appeal, your appellate jurisdiction is built on statute and constitutional authority. Once an appeal is properly filed, the appellate court’s rules bind you. By contrast, in JAMS arbitration, the procedural framework is contractual. The parties must agree to use JAMS (and potentially the Streamlined Rules) or else meet the financial thresholds under Rule 1 of the JAMS Streamlined Rules (i.e., no claim or counterclaim exceeding $250,000, unless the parties provide otherwise).
Therefore, in arbitration, your procedural regime is partly a creature of party consent. While you can’t disregard JAMS rules, you often can negotiate process modifications (within reason) at the outset—something not possible with appellate court rules.
2. Scope of discovery and fact development
One of the hallmark differences: appellate courts generally do not permit new fact development —your job is to persuade the reviewing court based on the existing trial record (clerk’s transcript, reporter’s transcript, exhibits). You don’t get to call new witnesses, take depositions, or introduce new evidence on appeal (though you may seek to augment the record to include materials filed or lodged in the superior court that were omitted; augmentation is not a vehicle for new evidence). The California Rules of Court (e.g., rule 8.155 [civil], rule 8.340 [criminal]) carefully govern how the record may be corrected or augmented.
By contrast, under the JAMS Streamlined Rules, you have more flexibility (though still limited) to present evidence directly to the arbitrator. The rules require parties to exchange a list of witnesses (including experts) and designate exhibits before the hearing. There is no formal “clerk’s transcript” regime. In fact, many streamlined arbitrations downplay or restrict extensive discovery to maintain efficiency. (In some JAMS processes, document exchange is voluntary or limited by agreement.)
So, as counsel in arbitration, you must be more proactive about gathering the evidence before the hearing. You cannot rely on the arbitrator to dig through a voluminous record like an appellate panel might.
3. Motion practice and interim relief
Appellate rules anticipate certain motion practice. For example, in California, you may file motions (e.g., to augment the record or correct the record) under Cal. Rules of Court, rule 8.54 (motions) and rule 8.50 (applications); augmentation/correction in civil is under rule 8.155. The court has processes for handling those motions, and sometimes special extensions or stays.
In JAMS arbitration—particularly under the Streamlined Rules—the arbitrator generally controls much of the motion regime, and certain types of motions (e.g., summary judgment or dispositive motions) may be restricted or truncated to preserve speed and cost goals. Some procedural objections must be presented early, others may be waived.
Arbitrators often structure a schedule that limits or even precludes lengthy motion rounds, subject to fairness and agreement. So appellate counsel should be prepared to shed some of the expectation of expansive motion practice—in arbitration, argument must often proceed in a more compressed, focused fashion.
4. Timing, deadlines, and extensions
In appellate practice, deadlines are strict and largely nonnegotiable. For example, rule 8.104 demands that a Notice of Appeal be filed within 60 days (unless an applicable provision extends it) and in most cases, courts may not grant discretionary extensions.
In JAMS arbitration you’ll frequently see agreements or stipulated modifications of scheduling. While arbitrators enforce deadlines (and may refuse late filings as a sanction), there is more latitude, especially if parties jointly agree or show cause. The Streamlined Rules are structured to force pace, but not at the cost of manifest unfairness.
A tip: in arbitration, raise any scheduling concerns early, negotiate calendar adjustments if needed, and don’t assume you can “fix it later,” as in appellate practice.
5. Record, transmission, and clarification
In the appeals world, the record is carefully assembled: a clerk’s transcript, reporter’s transcript, designations, modifications, and possible augmentations. The California rules prescribe how the record is transmitted to the Court of Appeal and how parties may seek corrections.
Arbitration has no parallel “official record” at a court clerk’s office. Instead, the arbitrator defines what evidence, exhibits, or submissions become part of the record. There is no court clerk or reporter controlling the record construction for appeal. If parties want clarity, they should ask the arbitrator to issue a “bona fide record” or post-hearing order summarizing what was accepted.
6. Briefing, argument, and advocacy style
In appellate practice under California Rules of Court, rule 8.204, briefs must meet precise format and content requirements (statements, arguments, authorities, table of authorities, etc.). Each brief is often subject to page limits, and the appellate court expects a tight and polished legal argument. Some districts also have supplemental guidelines or local rules governing formatting, e-filing, and brief style.
In arbitration, briefing is generally more tailored to the arbitrator’s preferences or the scheduling order, and the expectation is less rigid. The arbitrator may allow or require submissions of witness statements, expert reports, or multiple rounds of post-hearing briefs. Oral hearings in arbitration more closely resemble mini-trials, with direct and cross examination, while appellate oral argument is focused entirely on legal issues, not fact development.
The CA rules can provide a good starting framework, but as counsel, you should ask for the arbitrator’s preferred format and page limits up front, and expect more flexibility than in appellate court.
7. Decision, publication, and precedential weight
Here’s where you’ll find one of the most striking differences. In appellate courts, an opinion may be published (if certified under rule 8.1105) and then have binding or persuasive effect under California’s doctrine of precedent. Published decisions of the Court of Appeal bind California superior courts, at least on that point of law.
In contrast, an arbitrator issues an award. That award is private (unless parties choose otherwise or a court compels its disclosure) and does not carry precedential or stare decisis weight. Every arbitration is, in effect, its own case. Parties should not assume the next arbitrator will follow prior awards, even in similar fact patterns.
Additionally, while appellate decisions undergo thorough internal and external review (rehearing, certification, possible Supreme Court review), arbitration awards are subject to very limited judicial review (e.g., vacatur or modification under state or federal arbitration law). The arbitrator’s decision is meant to be final and binding.
8. Focus on costs, fees, and efficiency
Streamlined arbitration is designed to reduce costs and procedural bloat. JAMS emphasizes that the streamlined rules are intended to deliver speed, lower cost, and efficiency. As part of that design, discovery is curtailed, motion practice is limited, and schedules are compressed.
Attorneys uncomfortable with tight pacing may find it constraining. Appellate practice is less about efficiency (from a cost perspective) and more about safeguarding procedural fairness, complete briefing, and full development of legal argument.
A tip: JAMS attorneys note that the best arbitration strategy works with, not against, the streamlined model. Be aggressive early in shaping the record, avoid sprawling motions, and focus your advocacy tightly on core issues.
JAMS arbitration is a different beast
We often hear about appellate-trained counsel stumbling in arbitration by overrelying on formalism or expecting “more time later.” That nearly always backfires in a process built for speed and flexibility.
Three final practical tips to remember:
- Ask your arbitrator up-front for their preferences on format, exhibits, witness handling, and briefing schedule.
- Front-load your evidence: You won’t get many “second chances” to build the record.
- Think lean and targeted: Avoid sprawling motions or tangential arguments; be the advocate an arbitrator wants to read.
Recognizing that arbitration is its own procedural universe will help you adjust expectations, tailor your strategy appropriately, and perform more confidently when crossing over into arbitration.
