Sedley being The Rt. Hon. Lord Justice Sedley of the Court of Appeal.

Interestingly, Google tracked them down on the website of the New South Wales Supreme Court. It is comforting to find that some things are universal.

First Law: Documents may be assembled in any order, provided it is not chronological, numerical or alphabetical.

Second Law: Documents shall in no circumstances be paginated continuously.

Third Law: No two copies of any bundle shall have the same pagination.

Fourth Law: Every document shall carry at least three numbers in different places.

Fifth Law: Any important documents shall be omitted.

Sixth Law: At least 10 percent of the documents shall appear more than once in the bundle.

Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped.

Eighth Law:

1. At least 80 percent of the documents shall be irrelevant.
2. Counsel shall refer in court to no more than 10 percent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate.

Ninth Law: Only one side of any double-sided document shall be reproduced.

Tenth Law: Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original.

Eleventh Law: Documents shall be held together, in the absolute discretion of the solicitor assembling them, by:

1. a steel pin sharp enough to injure the reader,
2. a staple too short to penetrate the full thickness of the bundle.
3. tape binding so stitched that the bundle cannot be fully opened, or,
4. a ring or arch-binder, so damaged that the two arcs do not meet.

Putting page numbers in a bundle is a dull job – and guess what? Nobody has to do it.

Surprisingly few of those who put bundles together seem to know that modern photocopiers will add page numbers automatically. Instead, they scrawl semi-legible numbers in by hand; or, worse, they use a mechanical paginating contraption. This is a menace: it is horrible to use, because it gets ink all over your fingers, and is liable to arbitrary jams and repeats – so although it is a very dull task, you have to stay wide awake and attentive while you’re doing it, or it will go horribly wrong. And it is almost certainly running out of ink, so you have to bring it down on the page with savage force or it won’t print at all.

Reading the photocopier manual is dull, but at least you’ll only have to do it once – and ever after your bundles will be beautifully and legibly paginated. Anyway until the machine stops.

Chronological order – that is to say, date order – is the only way to arrange the papers in a hearing bundle. Anything else will be confusing at best, enraging at worst.

Admittedly part of the reason why this is the best way to arrange the papers is that it is the most common way. That’s not an argument that always works: the most common way to sing is out of tune, after all, and the most common way to paint a sash window is so that the top half is jammed permanently shut. But when it comes to bundles (like deciding on which side of the road to drive), tedious conformity to usual practice is by far the best thing. The parties’ representatives will have to navigate the bundle at speed in the course of the hearing, and it is much easier to navigate at speed if you know your way around.

The one exception to strict chronological order is the formal tribunal documents – the ET1, ET3, together with any questionnaires and responses, requests for additional information and responses to such requests. It is conventional to put these in a separate section right at the front of the bundle. Some people also put any grievances that are required to found the claim in this section, too, and that’s not a bad idea.

But after that, resist any temptation to subdivide by theme (‘investigation,’ ‘disciplinary proceedings,’ ‘grievance about photocopier incident,’ ‘disciplinary appeal’ etc). Just arrange all the documents in the order in which they were written.

Witness statement should not be put in the bundle of documents.

There is a theoretical justification for this, but the main reason is convenience.¹

Witnesses will often be referred to documents in the bundle and when making submissions about witness evidence you will often move from the statement to the documents it talks about.

If the documents and statements are in the same bundle this involves a lot of flipping back and forth. Much easier to be able to keep the statement open in front of you while thumbing through the documents.

1. The theoretical justification is that witness statements are a form of examination in chief, not documentary evidence.

There may be good uses for four-ring ring-binders, but hearing bundles in four-ring binders are a pain. It’s not that there’s anything inherently wrong with the two extra holes – it’s just that it so happens that there are far more 2-hole hole punches knocking around employment tribunals and lawyers’ offices than 4-hole hole punches. If you have a 4-hole bundle to which extra pages need to be added during the hearing, either they have to be forced onto the rings so that they don’t fit properly and won’t turn smoothly, or else someone has to scrabble around hunting for the elusive 4-hole hole punch.

So just use a standard 2-hole binder like everyone else, ok?

It is becoming more and more common for parties and representatives in the employment tribunals to use laptops in the course of the hearing, and most employment judges will now permit you to do this without any show of surprise.

In a short hearing you may do better with an old-fashioned notebook, but in a case running over several days or more, notes of the evidence taken on a laptop (if your or your note-taker’s typing speed is up to it) can be very helpful. There are two main benefits: legibility and searchability. Trying to make sense of someone else’s handwritten notes of evidence is tiring at the best of times – and late at night between days n and n+1 of a hearing is not the best of times. Having completely legible typed notes that you can search for a particular word in an instant (ctrl+F is a much under-used keyboard shortcut) is extremely time-saving and convenient. If you are taking the notes yourself, you can highlight or bookmark key sections as you go along; and you can paste extracts from your notes of evidence into your written submissions.

If you have a voluminous hearing bundle, save an electronic copy of the index on your laptop if you can: then, if you are hunting for a document in the bundle under pressure of time, you may be able to find it faster by searching for a keyword or a date in the index.

You will of course be much better equipped to take advantage of these benefits if you can touch-type fluently.

Every claimant’s adviser will be familiar with the feeling of despair that can set in when your client arrives with several carrier bags – or worse, a suitcase – full of grubby and dog-eared papers, in no particular order, many of them in their original envelopes, some of them in a number of different copies, and not all of them dated.

The advice on this overlaps with an earlier post on difficult cases. First, sort the papers you have into chronological order. If any document doesn’t have a date on it, either put it in its approximate chronological place in the story, or, if it doesn’t seem to fit into the story or you can’t yet tell where it it fits in, make a separate pile of undated documents.

In the course of sorting the documents into chronological order, you should be able to identify any duplicates. If they are true duplicates – i.e. one is a photocopy of the other, or they are both unannotated photocopies of the same original – weed out the spare copy or copies. Make a separate pile of duplicates, either to throw away or to return to the claimant.

You should end up with a chronological pile of documents, and a (much smaller, you hope) pile of undated documents. Photocopy both piles, single-sided (but making sure you copy both sides of any double-sided pages), and return the originals to the client for safe-keeping.

Now punch holes in your nice clean piles of paper, and put them both in a lever-arch file or ring binder, the undated separated from the dated by a divider card.

See? You are feeling better about the case already. You have probably started to pick up a certain amount about the story just from identifying the documents and putting them in chronological order. The next thing is to write a chronology.

Badly compiled bundles are a source of unnecessary stress and delay in the course of the hearing. There is a surprisingly large number of ways to get a bundle wrong: the book lists 11 separate errors at paragraph 8.16. Here are three more:

1. Photocopy double-sided, with parts of different documents appearing on opposite sides of the same page.
2. Include the same document twice or more.
3. Punch holes through the pages in a slightly different place each time.

The second can be made even more confusing if in each case there are a few pages missing from the document – but not the same few pages. Occasionally it will be genuinely necessary to include two copies of the same document: for example, where two copies of a typed document have then been separately annotated by two different people in the course of the events that form the subject-matter of the claim. But there is no need to put a document in the bundle a second time just because – for example – it was enclosed in a letter some time after it was originally written. Just put it in in its own chronological place. If the fact that it was enclosed in a later letter matters enough to be discussed at the hearing, everyone can add cross-references to their bundles when it arises.

The third means that if you remove papers from their file or binder to sort them in a different order, you can’t put whole sections of the bundle back onto the rings of the binder: each page has to be individually teased into place. The paper guide on your hole punch is there for a reason.

Yellow highlighters have a great advantage over any other colour: the marks they make are invisible to the photocopier.

One of the many ways to get a bundle wrong is to include pages where the key parts of documents have been obscured (once photocopied) by the use of a highlighter, or annotations made after the event. This is easily done. Your file of papers builds up as the case goes along, and as additional papers arrive – the ET3, for example, or material disclosed by the respondent – you read them highlight what you regard as the important bits. Quite likely you also annotate them.

Then a couple of weeks before the hearing, when the time comes to prepare the bundle, you realise that the only copy you have of several key documents is heavily annotated and highlighted. Unless you can get a clean copies from the other side, you may have to spend tedious time with a bottle of correction fluid, removing your extraneous marks from the documents before copying. Most highlighter marks will be impossible to remove anyway without also obscuring the text.

This can be avoided in one of two ways. If you have ready access to a photocopier, the simplest thing is just to copy every document as it arrives and keep one clean copy in a separate folder called ‘draft bundle’ from the outset. Make your own marks on a second copy.

If photocopying means a trip to the print shop or public library, do not bother to make spare copies of all the documents as you get them. Instead, confine yourself to a yellow highlighter when marking the documents for your own purposes. This isn’t a bad rule even when it comes to marking your own copy of the bundle, because sometimes – and you can’t tell in advance when this will be the case – the hearing bundle will need to be cannibalised for a subsequent appeal or re-hearing.

Some solicitors add tabbed dividers to bundles. A small number of dividers – used to show, for example, where the pleadings end and the contemporary documents begin, and then where the contemporary documents end and and the correspondence between the parties begins – can be quite helpful in navigating a bundle during the hearing. The more expensive solicitors tend to put in a divider for each document. This is not only pointless: it is a significant obstacle to the smooth conduct of the hearing. The bundle gets fatter, which means everyone has to carry more paper around. The bundle is harder to flag clearly with multi-coloured sticky notes, because the tabs from the dividers get in the way. And worst of all, it gives representatives, witnesses and the tribunal two numbers to choose from. The resulting dialogue goes something like this:

Counsel: Please turn to page 76. This is an email from James Baxter to Fiona Marks of 25 October 2006.
Witness: Yes.
Wing member: 76 isn’t an email in my bundle, it’s a long service award.
Counsel: Er….
Chairman: My page 76 is an email. [Looks over his colleague’s shoulder.] Oh I see, you’ve got tab 76, you want page 76. Perhaps Miss Campbell it would be easier if you referred us to tab numbers not page numbers?
Counsel: of course. [Curses inwardly: she has cross-referenced her bundle to page numbers, so she will have to pause and find each page before she knows which tab to announce.]
….
[The following day, having added tab numbers to her cross-examination notes]
Counsel: Please turn to tab 45. These are your own hand-written notes of the meeting?
Witness [baffled]: er… no.
Counsel: Who do you say wrote them then?
Witness: Er… It says at the top ‘Emma Wilkes.’
Counsel [now also baffled]: Where does it say that? Ah, we may be at cross purposes. What page have you got?
Witness: 45
Counsel: Can you find tab 45 in the second volume. Page 367.

This game can be played with each witness in turn, but it does not get any more entertaining.