One of the reasons that adjudication is so popular is the speed in which a temporarily binding decision can be obtained. However, as a result the parties can be under immense pressure to produce submissions within very limited timescales. In particular, the responding party may only have seven days to prepare a response. When you take into account the other commitments of its employees and party representatives, this might be a tall order. Similar problems can arise with the reply, particularly when new defences are raised in the response.
However, one of the consequences of these compressed timescales is that submissions tend to be longer than necessary. Consequently, an alternative title to this post might be “Why say it in ten words when 100 will do?”.
Pascal and Churchill put it rather well
Compressed timescales leading to submissions that are longer than necessary is a well-known phenomenon, as the French mathematician and philosopher, Blaise Pascal, identified in the seventeenth century:
“I have made this [letter] longer than usual because I have not had time to make it shorter.”
I should make it clear that I am not criticising parties for making long submissions. Parties often do not have the time to properly analyse and refine their cases and, unless they have previous experience of the adjudicator, they might feel the need to respond to every point raised by the other party, regardless of its merits. That is not an unreasonable approach. However, my concern is that the key points of a party’s case can start to get lost in long submissions, and you do not want your adjudicator to tire and adopt Winston Churchill’s attitude:
“This report, by its very length, defends itself against the risk of being read.”
I have found that another reason for lengthy submissions is that some parties feel the need to labour the same points over and over again. Don’t get me wrong, I fully accept the sense in following Aristotle’s advice of:
- Tell them what you’re going to tell them.
- Tell them.
- Tell them what you told them.
However, there is no need to repeat the same point on numerous further occasions throughout the submissions.
I am certainly not trying to tell parties how to structure their submissions, that is a matter for them. However, taking account of the above points might result in more readable submissions that have the potential to make more of an impact on your adjudicator. I admit that I am not always known for my brevity, but I try and remember the advice of one of my colleagues, David Mason, who early in my career said:
“Don’t adopt the attitude of, ‘why say it in ten words when 100 will do’.”