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I don’t object!

Courtroom dramas are filled with beautiful people who, at the slightest provocation, leap to their feet to shout “I object!”

Of course, real life in the employment tribunals is not like this. But a lot of litigation is similar. One side will want to do something, or do it in a particular way, while the other side tries to stop them.

A lot of these arguments are important. Many are not. But people (and lawyers are some of the worse) often fall into the trap of objecting to everything the other side tries to do.

This is foolish for several reasons. It makes litigation far more emotionally stressful than it needs to be – and it is already quite stressful enough. It is also tactically unwise. If every single possible point becomes an epic battle two things will happen. Firstly, the case will take longer than it needs to. There will be more hearings, more correspondence, more phone calls and more work. This is bad for everyone.

Even more damagingly, taking bad points will obscure your good points and damage your credibility.

Imagine that you are in a case management discussion where a tribunal has to deal with four issues. Three of these are unimportant. The final point is vital to your case.

Then imagine the following approach:

Opposing Counsel: Sir, on the first point we suggest this…

You: I object to that, because..

Later…

Opposing Counsel: On the second point, I submit that…

You: That’s completely wrong. I say….

Later…

Opposing Counsel: Well, I hope we can agree on the third point.

You: Certainly not. I submit…

Much later…

Opposing Counsel: Finally, Sir, we need to deal with disclosure. It really is disproportionate to ask my client to disclose the documents the Claimant asks for. The request is far too wide…

You: Some of those documents are vital to my case. They are directly relevant, because they deal with how other employees in the same circumstances were treated…

You might win the last point, but, you may well be starting from behind. If the issues were unimportant, or worse, ones where you had no real grounds to object, you will have turned the tribunal against you.

This is not unreasonable. Tribunals will judge you on what points you take and how you take them. They will do their best to take each point on its merits. But if they conclude that you will object to everything and will rarely have good reasons, they will stop taking you seriously.

Then consider the alternative approach:

Opposing Counsel: On the first point…

You: That’s fine.

Opposing Counsel: On the second point…

You: I have no objection to that.

Opposing Counsel: On the third point…

You: I can agree to that as well.

Opposing Counsel: Finally, on the fourth point…

You: I’m afraid I can’t agree here. Those documents are important and relevant. My case is based on disparity of treatment. Evidence of how other people in the same position were treated is vital to my case…

Now, far from being handicapped, you will be starting with an advantage. The initial reaction from the tribunal will almost certainly be “He didn’t object before. He wouldn’t be arguing here unless there was a good point to make”. They will listen to you with more sympathy and with greater attention. You are more likely to win the point.

This is not a magic wand. Letting three points go past doesn’t entitle you to win the fourth one. But if the first three points don’t matter, you are not giving anything up by conceding them. And the advantage on the final issue might be decisive.

This approach can, of course, be taken to far. Sometimes the respondent will be unreasonable and you will have to fight everything to prevent them running over you. Occasionally, even if both sides act well, the case is just one where there can’t be much common ground. In those cases there is nothing to do but fight.

The point is to fight the issues that matter. That is, to fight the ones that will determine who wins the case.

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