International Arbitrator, Counsel, Consultant

Arbitration Blog

Topical issues.

You wrote a long pleading - did you really not have time to write a short one?

My first boss was a great fan of the saying “I wrote a long letter/memo…because I didn’t have time to write a short one” - the original quote is, I believe, ascribed to Mark Twain, amongst others.

We all know that it takes a huge amount of work, skill, dedication and commitment to distil complicated legal arguments into pithy pleadings. Editing written work is relentless and often unrewarding at the time, but the editing process of itself not only results in a better product, but makes the editor a better writer. Yet increasingly in international arbitration we are seeing pleadings get longer and longer, driven in part because of time constraints and in part from a fear of leaving something out.

This is a plea for change.

Arbitrators are human and humans don’t process lengthy documents well. Apparently, when average sentence length is 14 words, readers understand more than 90% of what they’re reading. At 43 words, comprehension drops to less than 10% and studies show that most people are only retaining about 25% of the information on a page.

I have never forgotten an occasion about twenty years ago when I was drafting a defence my boss picked me up for using “component”, he asked me “what is wrong with using part? A good old English word.” In the same spirit I would say don’t use conflagration when you could use fire. Don’t say disseminate if you could say give or send out. And please remember that mantra “saying something twice doesn’t make it twice as true”.

You might argue that arbitrators are highly educated and intelligent and therefore they can easily digest complex pleadings, however an interesting study into legal writing found that there was a statistically significant correlation between educational level and a preference for plain language in legal writing - (the The Public Speaks: An Empirical Study of Legal Communication by Christopher Trudeau). So even though people with advanced degrees might understand traditional verbose legal style, that’s not what they prefer.

In the compressed timetable of international arbitration hearings it is vital that the tribunal has read and digested the pre-hearing briefing. Making these pleading short, clear and attractive to read will dramatically increase your chance of having a well-prepared tribunal. Take the time to write a short pleading, it will save you time in the long run.

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