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Thursday, July 5, 2012


This article is for all you litigators out there and for those who support them at arbitration hearings. My goal is to encourage all those with document-intensive cases to take the time to design an organized evidence binder before the hearing.

As a FINRA arbitrator, I am usually at the receiving end of reams of paper. Some of you probably think that if the documents are three-hole punched, placed into binders and tabbed, that is sufficient organization for the hearing. Maybe you can get away with that for a case with fewer than thirty pages of documents. But if you will be introducing a binder-full of documents, and want to develop a cohesive theory of your case, you need to spend a little more time on this process. It is counter-productive to throw together emails, memos, statements, and other items helter-skelter, with nary a thought given to those of us who have to quickly find the information while at the same time listening to the witness testify.
Friends, it is not enough to have bate-stamped the pages or to simply put the pages behind numbered tabs. The pages themselves must also be placed in a consecutive numerical order. This seems so obvious yet is so often ignored. As litigators, the last thing you want to do is spend time trying to find the right page about which to ask the witness a question, and then wait for the arbitrators until they are (literally) on the same page as you. Counting and numbering pages is not a glamorous part of the job, but it is important all the same. It is well worth it to explain to your support staff what needs to be done, and then to supervise them to ensure it is done properly.

To avoid this time-sapping problem, please take a moment before copying your exhibits to do the following:
1)    Make one complete set of all documents you plan to use during the direct and cross-examination of witnesses at the hearing.

2)    Keeping in mind your planned examination of the witnesses, organize the documents so that the testimony will flow from one page to the next. Yes, this means you have to plan out your line of questioning ahead of time.

3)    Use tabs to segregate each set of exhibits; it is fine to have more than one document per exhibit tab so long as the pages are numbered.

4)    One you’ve placed the documents into their respective tabs, NUMBER THEM (even if they are already bate-stamped) consecutively within the tab.

5)    Make sufficient copies of the numbered exhibits and place them into binders so that there is an exhibit binder for each arbitrator, a “witness” binder, and a binder for opposing counsel. Of course, make your own binder as well. For a typical three-person arbitration panel, that means you will need six binders. You may want to consider creating an extra seventh binder for those unexpected calamities (i.e. when you or someone else spills coffee or water all over your exhibits, or the pages that were supposed to be double-sided are only printed on the “odd” side).

6)    If there are documents that you are unsure about using as exhibits, keep them organized in a separate folder, and have enough copies available for everyone. This way, if you do decide to enter them into evidence, you will not have to stop the flow of the arbitration to make copies “mid-stream.” Both arbitrators and parties will appreciate this time-saving preparation.

7)    To save time, please confer with opposing counsel to stipulate to exhibits that you know will likely be used by both sides.

8)    If possible, create a joint binder of those pre-stipulated documents for the arbitrators, and label the front of the binder “Joint Exhibits”. Creating a joint binder means you will have to work together to negotiate who will be responsible for putting together the binder and getting it to the hearing (which requires a certain level of trust that it will be done properly), but you will ultimately save paper and time as well as contribute to a more smoothly-run hearing.

9)    For those exhibits not jointly stipulated to, place a label on the front cover of each binder, indicating whether the exhibit binder is that of Claimant or Respondent.

10) As a nice finishing touch, label the front of each arbitrator binder with the arbitrator’s name.

Although this requires some extra thought, planning and effort, if you take these small steps, I guarantee you’ll have a happier arbitration panel as well as a more efficient hearing.
As always, I welcome your questions or comments. For more information, you may email me at or call me at 914-584-6738.

Alpert Mediation, All Rights Reserved, Copyright  2012

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