Originally From:
Securities Arbitration: Practice and Forms - Looseleaf
Securities Arbitration: Practice and Forms - Electronic
CHAPTER 8 - Preview Page
The Conduct of the Hearing
§ 8.01 Background
The basic function of an arbitration hearing is to give the parties an opportunity to present evidence and arguments, and to challenge the evidence and arguments presented by their adversaries. These functions are carried out in an environment radically different from the courtroom setting.
The salient feature of arbitration hearings is their informality. The setting is typically a conference room. The arbitrators,1 parties, and counsel are seated relatively close to one another. There is no jury, and no elevated bench. The arbitrators typically wear business suits or the equivalent, not judicial robes.
As will be described in greater detail below, this informality is joined by a relaxed attitude towards rules of evidence. Preferred evidence is generally accepted by the arbitrators for “what it is worth,” and little attention is paid to such technicalities as the hearsay rule or the best evidence rule.
Chapter 8 - The Conduct of the Hearing
§ 8.01 Background
§ 8.02 When Hearings Are Not Required
§ 8.03 Failure of a Party To Appear
§ 8.04 Who May Attend the Hearing
[1] The Parties
[2] Counsel
[3] Non-Party Witnesses
[4] SRO Staff
[5] Others
§ 8.05 The Creation of a Record
§ 8.06 Burden of Proof
§ 8.07 Order of Proceedings
[1] Preliminary Proceedings
[2] Opening Statements by the Parties
[3] Order of Presentation of the Parties’ Cases
[a] In General
[b] The Claimant’s Case
[c] Motion at Close of Claimant’s Case
[d] The Respondent’s Case
[e] Claimant’s Rebuttal Case
[f] Closing Statements
[4] Conclusion of the Hearing
[5] Post-Hearing Briefs
§ 8.08 Reopening Hearings
§ 8.09 Motion for Reconsideration
§ 8.10 Rules of Evidence
[1] In General
[2] “Arbitral” Notice
[3] Evidentiary Privileges
[4] Objections
§ 8.11 Testimony
[1] Procuring the Attendance of Witnesses
[2] Testimony In General
[3] Direct Examination
[4] Cross-Examination
[5] Redirect and Recross
[6] Use of Prior Testimony
[7] Use of Affidavits
[8] Expert Testimony
§ 8.12 Documentary Evidence
§ 8.13 Adjournments
§ 8.14 The Arbitrators as Judges
W. Reece Bader is a Partner in the Frankfurt office of Orrick and is a member of the Securities Litigation/Regulatory Group. Prior to moving to the Frankfurt office in 2008, Mr. Bader was located in the firm's Paris, Washington, D.C, Silicon Valley, New York and San Francisco offices. He has concentrated his practice in the area of securities and futures litigation since 1970. He has extensive experience, including substantial jury and non-jury trial work in broker-dealer litigation including securities, commodities and public finance. He also handles appellate matters and has represented the Securities Industry Association as amicus curiae in broker-dealer litigation. He has acted as lead defense counsel in complex class actions involving initial public offerings and derivative suits, both on behalf of underwriters, companies and officers and directors. He also regularly represents broker-dealers and individuals in both SEC and SRO enforcement actions. Mr. Bader has argued cases before the D.C., Second, Third, Ninth and Federal Circuits. He serves as an arbitrator for FINRA, NYSE and NFA, and the Center for Public Resources (Distinguished Neutrals Panel). He is a former member of the National Arbitration and Mediation Committee of the NASDR, past Co-Chair of the Securities Litigation Committee, and past Co-Chair of the Alternative Dispute Resolution Committee of the ABA’s Litigation Section. Mr. Bader is a frequent lecturer and panelist for such organizations as the Practising Law Institute, ALI/ABA, FINRA and the Securities Industry and Financial Markets Association.
