Assuming this is not your first construction arbitration hearing, you do not object. Why? Because your objection would be futile. Construction arbitrators simply do not exclude evidence on the basis that it does not appear on an exhibit list. (Evidence not produced in discovery or otherwise previously provided might be a different case.) In an informal poll of a dozen construction lawyers conducted by this author, not one reported evidence being excluded solely because it did not appear on an exhibit list. This remained true even when the applicable case management order purported to prohibit the introduction of evidence not on an exhibit list. Thus, to be used in an arbitration hearing, documents must appear on an exhibit list, unless they don’t, in which case you can use them anyway. So far, so pointless.
The scope of the average exhibit list only compounds this inanity. Exhibit lists are typically due several weeks in advance of the hearing. In an ideal world, both parties would have complete witness outlines, including exhibits, ready by this deadline. In this fantasy, both parties would then provide each other reasonably short exhibit lists that would allow for review of each exhibit on the list prior to the hearing. Both parties would then proceed to the hearing secure in the knowledge that they will not be subject to attack by the use of any document excluded from these tidy lists. This, to put it mildly, is not how things play out.
Perhaps the most organized and diligent among us know the exhibits they will use by the time the lists are due and can populate them with just those two- to three-hundred exhibits. Everyone else simply plays it safe and includes every document that could conceivably be relevant. The shortest list this author has received included at least 600 exhibits; the longest approached five figures. Of what conceivable use is an exhibit list that includes essentially every relevant document, and isn’t even binding in the unlikely event one has been omitted?
We have now established that arbitration exhibit lists are typically pointless, excessively voluminous, and largely unenforceable. They are also expensive. An enormous amount of time and money is spent creating exhibit lists. Based on the largely unfounded fear that a document left off will not be allowed into evidence, lawyers pore over the production database, adding and re-adding countless documents.
And yet, even given that (1) there is practically no consequence for failure to include a document on an exhibit list; (2) exhibit lists are almost always too lengthy to serve their intended purpose of previewing a party’s evidentiary showing; and (3) exhibit lists require a tremendous expenditure of time, effort, and money, almost everyone still insists on exhibit lists as a pre-hearing requirement, and almost no one insists that the lists be limited in any way. (There’s no real incentive to push for a strictly limited exhibit list that could come back to bite you in the event you forget to include a crucial document.) Thinking too much on this foolishness compels me to propose this obvious and remarkably simple solution: stop requiring exhibit lists!
I recognize this is a break from tradition. Arbitration, however, is remarkably easy without exhibit lists. I hope you’re sitting down for this: you can just handle the exhibits at the final hearing like you would handle the exhibits at a deposition. Let that sink in. You already know how to proceed without an exhibit list, you just didn’t know it. When an exhibit is introduced, it is assigned the next available number. It is as simple as that.
The logistics largely resolve themselves. Regardless of whether you are using hard copy or electronic documents, there are ways to make their introduction seamless. When using hard copies, you can employ the classic exhibit stickers. When using electronic documents, you can employ one of the multiple tools that exist for on-the-fly branding and sharing of exhibits. Even if your arbitrators request exhibit books, there are any number of practical options. (Consider giving them binders with tabs that are added to as you go, for example.)
Exhibit lists do nothing but incentivize waste. Wasted time, wasted effort, wasted money, and wasted paper—banker’s boxes full of wasted paper. So break the cycle, and embrace this most obvious reform: don’t include a requirement for an exhibit list in your next case management order.
Editor Jane Fox Lehman is a Senior Attorney at The Babcock & Wilcox Company.Stock photo ccourtesy of Vecteezy