Do Not Lose the Arbitrator's Attention

We noticed that the authors of the examined documents aimed not only to gain but also to maintain the attention of the arbitrator. Upon consideration, this makes perfect sense. Microsoft conducted research indicating that a person can concentrate on a text for about... 8 seconds. Thereafter, their focus quickly diminishes.

The authors of the analysed documents were evidently aware of this. The documents were relatively simple and clear. Long sentences were interspersed with short ones. Importantly, key matters were discussed when the arbitrator's mind was focused. This was achieved through a rather straightforward tactic. After several more complex issues, the attention of the arbitrator was simply 'reset' with easy, general phrases. The arbitrator's mind would then catch a breath. After a two-second rest, it returned to the core with new energy.

We found such gems, for example:

• "Addressing the second counterclaim does not require as much space and attention."

• "It must be immediately noted that this very circumstance was the main point of dispute between the parties."

• "It is worthwhile pausing a moment over the meaning of these words."

• "In legal doctrine, there has been a split into two opposing camps."

• "That's all in response to the claim."

Use Specialist Services

Many lawyers use online services that assess the complexity of language, such as www.jasnopis.pl. The service advises which parts of the text are too complicated. It also points out overly long expressions and assesses the level of complexity of the material.

This allows for "creatively" simplifying the text.

It is undeniable that such tools were used when writing the examined documents. When we input their excerpts into the service, they mostly received a score of 4, sometimes 5. This means: "Text slightly more difficult, understandable for persons with secondary education or with significant life experience."

Let the Arbitrator Watch and Listen

In Ultima Ratio, evidence can be taken from audio and video recordings, photos, and other such materials. The authors of the examined documents undoubtedly tried to take advantage of this. It brought significant procedural benefits. People have different so-called "sensory modalities." Therefore, arguments that the arbitrator can see or hear have a completely different impact on their awareness than "ordinary" text. Are these matters significant? We determined they are. Although our research lacked scale, we established that representatives who presented audio or video materials generally won. "Traditional" evidence measures were also discarded at such times. Multimedia materials were preferred over written witness statements.

Find a Symbol for Your Case

The fourth feature of the examined documents was the least obvious. One of the arbitrators pointed to a complaint where one of the first pieces of evidence was a video showing... an unsecured hole in the ceiling. It was explained that anyone - including children playing nearby - could fall in and suffer serious injuries.

We do not know whether this evidence had any significance in the case. However, the vision of children falling into the hole in the ceiling certainly stayed with the arbitrator for a long time.

This example, and others we later found, helped establish another feature of "successful" documents. It is presenting a clear symbol of the argumentation being raised. This mainly involves a picture, a document excerpt, or a video paired with a striking statement that perfectly captures the essence of the stance in the matter. The symbol was usually at the beginning of the argument. We also noted the emotional context in which it was usually embedded.

What does showing such a symbol achieve?

Psychologists believe it can evoke a phenomenon called "confirmation effect." It means that people tend to seek information consistent with their previous experiences.

Be Helpful, Leave the Wisdom to the Arbitrators

In Ancient Rome, they used to say: Iura novit curia ("The court knows the law").

We noticed that in the examined documents, they quite strictly adhered to this principle. You will find no lengthy legal discussions. No long tirades about the Supreme Court's rulings. Their authors usually limited themselves to highlighting these issues. They understood that the arbitrator must verify the case law and legal matters on their own.

Instead, we were struck by the profound knowledge of the facts. They masterfully selected the right arguments regarding the circumstances significant for resolving the case. Importantly, we noticed considerable attention to the "hygiene" of individual pieces of evidence. No unnecessary content. No unnecessary attachments. All evidence numbered and described in detail. Emails only those from which evidence was to be drawn (not the entire history of email discussion).

Disclaimer

The features described above were found in documents positively correlated with winning the case. However, we must point out that we have not studied whether, and to what extent, they had any actual impact on the successes achieved. These matters remain the secret of arbitrators and the parties. We only studied selected contentious cases. Our research worked on anonymised materials. Certainly, there were many other factors that influenced the outcome of the cases studied. Although there is a statistical association between the practices described here and the results, please treat this text as a set of suggestions and observations for improving the readability of procedural documents and sensitising arbitrators to important facts and evidence.

Robert Szczepanek

Ultima Ratio Team