Driver Trett Digest Issue 25 - Flipbook - Page 21
DIGEST | ISSUE 25
No matter how
hard working your
Tribunal or Judge,
they are busy, and
don’t have weeks
and weeks of
reading time.
We also talked about finding time to
plan and structure the answer and write
a short introduction and conclusion.
Hopefully the statement “I think I did ok
in that exam – I managed to write loads
anyway” will never be used again!
I realised that in my work, which is
predominantly large and complex
construction disputes, it is common
to see the same challenges arise,
especially with experts.
Clients often applaud lawyers and
experts for producing huge volumes
– the thinking being that it will simply
intimidate the other side into settling.
Judges and Arbitrators on the other
hand are rarely so appreciative, in my
experience. I learned this early in my
career, back in the 90s, when I was a
junior lawyer involved in an international
arbitration where there was a huge
claim and even larger counterclaim.
The Tribunal clearly lost patience with
both sides, and particularly the experts
because the evidence and submissions
were too voluminous and complex to
be properly understood in the time
available. The pleadings were lengthy
and chronological and there was no
clearly defined list of issues for the
Tribunal to refer the pleadings and
evidence back to.
After two weeks of hearing and
countless pages of submissions and
evidence, the Tribunal decided that
both the claim and the counterclaim
should fail because they were “not
proven” and each side should bear
their own costs. Although this result
actually suited my side rather well, I
couldn’t help feeling what a total waste
of time it all was.
Tribunals often despair at the huge
volume of documents and evidence
they have to grapple with. Hundreds
of thousands of pages are not
uncommon. But unlike criminal fraud
trials, or public enquiries where there
might be a year-long hearing, big
construction cases often have hearings
no longer than three or four weeks,
and sometimes much less than that
- especially in civil law and middle
eastern jurisdictions. No matter how
hard-working your Tribunal or Judge,
they are busy, and don’t have weeks
and weeks of reading time. With the
best will in the world, they simply
cannot read everything, especially if
they are reading in a second language.
So, my point is that everyone, and
I include myself in this, should
find time to distil down the written
documents they are producing, so
that they only deal with the issues in
hand, and nothing else.
When dealing with the issues, don’t
write ten pages on a subject when one
will suffice. As Mark Twain once said,
“sorry I’ve written a long letter, I didn’t
have time to write a short one”.
Just because an analysis has been
done, that doesn’t mean that it should
be deployed. We all go down cul-desacs in our preparation, but the best
lawyers and experts always seem to
have the confidence to focus on the key
issues and only the key issues. They
seem to avoid the temptation to feel
the need to justify their fee by also
including analysis they have done that
relates to matters that are no longer
key issues in the case. They make sure
that everything they ask the Tribunal
or Judge to read is relevant to one of
the key issues and they explain why it
is relevant. This is no different to exam
technique.
THE DREADED CHRONOLOGY
Whilst very detailed day by day
document chronologies are a useful
tool in preparation for a case, in my
experience they can also be dangerous
if you are a slave to them. I say
this because chronologies are not
organised by issues and nearly always
contain irrelevant information. The
approach people sometimes take when
preparing the chronology is typically “if
in doubt put it in”.
What sometimes then happens is that
this chronology is then used as a road
map for the pleadings, expert reports
and witness statements. They start at
the beginning in terms of time and tell
the story to the end.
In my view, the better approach is to
try and tell the story of the case by
reference to the key issues you have
isolated and then use mini chronologies
within each issue. As with the best
Netflix box set, an engaged audience
will be able to follow the story even
though it jumps about in time provided
they are engaged with the story line
- or ‘issue’ in dispute parlance. The
audience may not be as well engaged
if you rigidly follow the chronology and
then jump about between story lines.
MY CONCLUSION
In my experience, the best practitioners
adopt at least some of the following
principles
when
dealing
with
construction disputes :1.
2.
3.
4.
5.
6.
They Identify the key issues at the
earliest possible opportunity;
They focus only on those issues;
They keep it as short and simple as
possible;
They
include
introductions,
executive
summaries
and
conclusions wherever possible;
They do not repeat themselves;
and
They are not a slave to the
Chronology – they tell the story by
reference to the issues.
So, my message is: if you adopt good
exam technique when dealing with
construction disputes, you won’t go
far wrong.
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