It is very common, in correspondence or orally, to need to refer to other documents, be they statutes, case-law or evidence. You will very rarely write anything that does not talk about other documents.

It is well worth thinking about how you do this. Writing something like “Such and such was laid out in the company’s policy” can cause problems. Often the policy will be long, and there may even be more than one. Your reader will have to search through pages of documents to find what you are talking about. Even a short submission of a couple of pages, will probably refer to a dozen or so other documents at least, so these problems add up quickly.

It can also cause difficulties for you, since you may well be asked “Where exactly is that?”.

There are basically two ways of avoiding this problem:

References

Almost every document you will deal with in a case, will have a shorthand way of referring to it.

• Documents in the bundle can be referred to by page numbers. Some documents also have paragraph numbers you can use.
• Cases can be referred to by their case citation. You can use page numbers, paragraph numbers and marginal letters to give more precise references.
• Witness statements can be referred to by paragraph numbers.
• Statutes are referred to using the name of the statute and section numbers.

Using these references is simple. For example,

Mr White, at paragraph 6 of his statement, says that the bonus scheme was organised on a commission basis, bundle p78, para. 5.

Many people like to put references in italics. This can be useful.

Another useful technique, particularly when you will be referring often to the same source, is to indicate a default reference. For example, you might write at the beginning of a submission “Page references are to the bundle of documents, unless otherwise indicated”. This allows you to avoid writing ‘bundle’ repeatedly.

Quotation

Sometimes, it will be useful to quote from documents, rather than just providing a reference. There is no absolute rule as to when a quote is better that a reference. It is mostly a matter of common sense. Your aim should be to make things easy for the reader. If a quote will help them, put one in.

In general, the more important a document and the more you want to say about it the more likely that a quote is sensible.

Bear in mind that quotations break up what you are writing. Too many quotes will make it difficult to follow what you are saying, since you will keep stopping to insert a quote. The aim is to achieve a happy medium between giving your reader useful information and making your points concisely.

A quotation should always have a reference attached, so that the reader can follow up the quote and see it in its original context.

From time to time it is useful to send documents by recorded or special delivery.

There are normally two reasons to do this: dodgy opponents and important or urgent deliveries.

From time to time you will deal with opponents who appear to be either dishonest or simply totally disorganised. In these cases it is useful to have some independent confirmation that what you have sent has been received.

You will also deal with important or urgent deliveries. Sometimes you will have original documents that cannot be replaced, and sometimes something will need to arrive quickly. Special delivery, or even a courier, can be useful.

There is no reason, however, to send all letters in legal proceedings by recorded or special delivery. This is expensive, and normally has no real advantage. If you are need to be sure that something has arrived the cheapest and easiest solution is to give the receiver a quick call a couple of days after you send it.

Bear in mind that recorded / special delivery can actually slow post down. Items will not be delivered unless they are signed for. If the receiver is out, it can be some time before he arranges for re-delivery or collects the post. The risk of this happening will vary depending on who you are sending things to. A local authority is unlikely to be out when post arrives, but a small businessman may well be.

There are a number of possible triggers for a request for specific disclosure. When you first see the response to the claim, it may well mention documents, or events that must have given rise to documents (e.g. meetings that must have been minuted). This will be too soon to fire of a request for specific disclosure – because in due course the tribunal will give directions for both sides to disclose to each other all the relevant documents they’ve got, and for the moment you might as well wait to see what they disclose voluntarily.

At that point, though, you will want to take a careful and critical look at what they have disclosed. Go through the documents in detail to check that they are complete. Highlight any reference in one document to any other document that looks relevant, and then check that it is present. Highlight any reference to an event that sounds as if it is likely to have given rise to documents, too – e.g. if a meeting is mentioned, are there any minutes of it? If you are an adviser, get the claimant to do the same: two heads are better than one, and your client will have inside knowledge of the workplace that will sometimes make it easier for her to spot missing documents. Then write a letter asking for any specific documents you think have been left out, and apply to the tribunal for an order in due course if you need to.

At this point it can be tempting to think that you have ‘done’ disclosure, and need not think about it again. That would be a mistake: you need to stay aware of the possibility of requesting further disclosure right up to the hearing. Sometimes it is even necessary to apply for an order for further documents to be disclosed during the course of the hearing, if it becomes clear in cross-examination that something has been withheld that should not have been.

One particular occasion on which you should always revert to the question of disclosure is exchange of witness statements. Read the respondent’s statements carefully, and repeat the exercise that you did before: highlight every mention of a document, and check that you have it; and make a note every time the statement mentions any event that is likely to have created a ‘paper trail,’ and make sure that has been disclosed too.

Be prepared to explain, when you write to the tribunal for an order for specific disclosure, why the additional documents were not requested previously. If you have only realised that they exist (or probably exist) because of what is in the witness statement, say so.

Sometimes it is important to find out whether there are any differences – and if so what – between two very similar documents. A useful quick way of doing that is to read down the last word on each line for each page or paragraph of the two documents you are comparing. This gives you random sequences of words that don’t make sense – if they are the same in each case, you can be fairly confident that the two documents are identical. If they diverge at any point, you need to look more closely and see what the differences are.

Here’s a demonstration. There follow two very similar paragraphs.

The notice of appeal characterises this as a failure to find that ‘it was within the range of reasonable responses for Mr Allan to invite Ms Peacock… to assist him with writing his decision.’ That is not a fair account of the tribunal’s criticism. It was of course legitimate for Ms Peacock to assist Mr Allan in writing his decision, and the tribunal did not find otherwise. What the tribunal rightly considered unsatisfactory was the fact that Ms Peacock had written Mr Allan’s decision for him in almost exactly the form in which he delivered it at a time when he claimed not yet to have reached it. This, it is submitted, is a procedural flaw capable alone of removing the process from the ‘band of reasonable responses.’

The notice of appeal characterises this as a failure to find that ‘it was within the range of reasonable responses for Mr Allan to invite Ms Peacock… to assist him with writing his decision.’ That is not a fair account of the tribunal’s criticism. It was of course legitimate for Ms Peacock to assist Mr Allan in writing his decision, and the tribunal did not find otherwise. What the tribunal rightly considered unsatisfactory was the fact that Ms Peacock had written Mr Allan’s decision for him almost exactly as he delivered it at a time when he claimed not yet to have reached it. This, it is submitted, is a procedural flaw capable alone of removing the process from the ‘band of reasonable responses.’

Reading down the right hand side of the first of the pair gives you “reasonable a Allan considered exactly is reasonable responses.” Reading down the right hand side of the second gives you “reasonable a Allan considered as a responses.” That signposts a divergence between the two versions at the 5th line of text.

It’s not a completely accurate method, because it depends on the assumption that any alteration within any given line will change the total length of the line, but for most purposes it provides a good rough and ready check. (It doesn’t work at all, of course, if font size or margins are different in the two versions.)

Tribunals will often ask you whether you agree with a particular formulation of a point, as a way of checking they understand the issue.

For example, a Judge may ask:

Mr Reed, as I understand this you accept that there was no breach of the statutory dismissal procedures, but say that the hearing was procedurally unfair. Is that right?

This is often a good thing. It allows the tribunal to check that they understand you and you know that they have understood. Also, particularly if you are not a lawyer, the tribunal may well be able to provide a legal formulation for your point better than you can.

The risk, however, is that you will get pressured into agreeing to something that you don’t actually mean. Sometimes this happens because a frustrated judge will put the question rather testily, flustering you. But often the pressurised nature of tribunal procedings will lead you into something that chess players call an unforced error. The Judge asks something that sounds sort of right and you say ‘yes’ without fully understanding what you’re doing.

There are two things you should do to avoid this. Firstly, know your case as well as you can. The better grip you have on the facts and law, the less likely you are to make this sort of mistake.

Secondly, when you are asked a question think about the answer. Take a deep breath and one second to reflect. Then answer. If you don’t understand, say so and ask the Judge to clarify the question.

In the course of employment litigation you will often have to turn gross salary figures into net.

One way of doing this is to sit down with the tax legislation and work things out. This is boring, time-consuming and difficult.

A much easier solution is to use one of the ready reckoners available online. A good one is listentotaxman.com.

An important part of case preparation is drawing up a schedule of loss. This is a list of the money that you are claiming from your employer.

A schedule should be complete and optimistic, without being silly. It should include everything that, if things go very well indeed, the tribunal might award.

This means that most schedules ask for an amount much higher than you are actually likely to get.

It is important to keep this in mind. Firstly, because otherwise you are likely to be disappointed by what is actually a stunning victory. Secondly, because when negotiating you need to take account of the likely outcome much more than the schedule of loss.

A convenient mental short hand is hard and soft numbers. Hard numbers are those that are unlikely to change very much. Soft numbers are those that are likely to change a great deal. A hard schedule of loss is one where, if you win, you are likely to recover something close to the amount claimed. A soft schedule is one where, if you win you are likely to recover much less.

A hard schedule is not necessarily better than a soft one. A claim with a near certainty of getting £300 is not nearly so good as a soft claim for £50k. After all, even if you only recover 5% of the latter you will end up with £2,500.

But it will be very difficult to properly negotiate the claim for £50k, unless you recognise that the most likely outcome is about £10k.

Most schedules have some hard elements and some soft ones. It is normally worth going through point by point to assess how much the claim is likely to be worth.

Of course, the other important assessment is how likely you are to win in the first place. A hard schedule of £1,000 in a very weak case is very different to one in a very strong case.

If you are advising a claimant it is important to make sure that your client understands what the schedule of loss means in real terms. Otherwise, you are setting them up for disappointment and hindering their ability to make sensible decisions in settlement.

If you want to say in a witness statement that someone said something, just say that they said it.

Those who draft witness statements often get hung up on this – possibly because they have been taught that it is bad style to keep using the same word in a piece of writing. There is something in that rule, but you have to use your judgment (and your ear) about when to follow it. In particular, it simply doesn’t apply to ‘said.’ The reader won’t notice ‘said’ any more than ‘the’, ‘or’, ‘and’, ‘has’ etc – it doesn’t hook the attention, but just imperceptibly feeds the reader some information about who was speaking. On the other hand, if you keep repeating ‘confirmed’ or ‘indicated’ in your statement, it will sound very wooden.

So avoid the following expressions, and similar:

‘Expressed that,’ which is clumsy, and grammatically dubious – you normally express something: admiration, disapproval, a wish, an objection etc.

‘Indicated,’ which provides less clarity than ‘said’ in an extra 3 syllables. ‘Mary Jane indicated that she did not like rice pudding’ does not tell us whether whether she said politely, ‘I won’t thanks, I’ve never liked rice pudding,’ or pulled a face, or took a spoonful and then spat it out – or lay on the floor kicking and screaming.

‘Verbally indicated,’ which uses the 4 syllables of ‘indicated’ to introduce unnecessary uncertainty about how it was indicated; and then takes another 3 syllables (‘verbally’) to clear up that uncertainty.

‘Confirmed,’ which is fine if what you mean is that the speaker made definite something that had previously appeared uncertain; but otherwise ‘said’ is more accurate.

‘Shared,’ because it won’t help your case to make the tribunal feel queasy.

Some litigants and lawyers act and write as if they’re just a little over caffeinated.

When they object to something they do so ‘firmly’ or ‘vigorously’. When they make submissions they do so ‘passionately’ or ‘strenuously’. They have made ‘heroic’ or ‘valiant’ efforts to comply with the tribunal’s orders.

A little calm goes a long way and is normally more convincing. Quite possibly the only bit of legal advice you should take from Tom Cruise’s character in A Few Good Men is his line on strenuous objections.

“I strenuously object?” Is that how it works? Hm? “Objection.” “Overruled.” “Oh, no, no, no. No, I STRENUOUSLY object.” “Oh. Well, if you strenuously object then I should take some time to reconsider.”

If you do need to emphasise the seriousness of something it is better to explain why it is serious than tell the tribunal it is.

For example, say that the respondent has been uncooperative in producing witness statements. To make clear that you have done everything you could you might say:

On the 1st May I rang Ms Jones to discuss exchange of witness statements. I was not able to reach her and left a message. On the 2nd May I rang again. I spoke to her secretary and was told that Ms Jones would ring me back that afternoon. She did not.

The following Tuesday, the 6th, I rang again. This time I reached Ms Jones. She told me that she could not speak to me at the moment. I said that I would send her an email. I sent one later that day. I reminded her that there had been an order to exchange statements on the 7th. I asked her to confirm that they were in a position to do. I suggested that we do so either by fax or email. I included my details and asked her to suggest a convenient time.

I did not get a reply and could not reach her, or her secretary, by phone on the 7th.

I then wrote a letter, pointing out that the deadline for exchange had passed and asking her to contact me urgently. I sent this by recorded delivery, which confirmed it was received on the 8th. I also sent it by email. I did not get a reply.

I made more phone calls on the 8th, 9th, 13th and 15th. Each time I left a message, but these were not returned.

This is far more convincing that any number of ‘strenuously’s.

Schedules of loss normally divide the compensatory award for unfair dismissal into past loss (loss up to the hearing) and future loss (loss that will happen after the hearing). A very similar approach is also taken to equivalent loss in other types of cases

This is a sensible system, because the tribunal will have to think about these things differently. Past loss is about what has actually happened. The tribunal will focus on making findings of fact about the claimant’s earnings post-dismissal and his efforts to mitigate. Future loss, however, is about predicting what will happen next.

There is no rule, however, that these are the only two categories that you can use. Often more subcategories are extremely useful.

Events

Sometimes a claimant’s loss remains constant. For example, a woman who losses a job that paid £200 per week and remains unemployed up to the hearing has a past loss of £200 multiplied by the number of weeks between dismissal and the hearing.

On the other hand, she might have had done some temporary work for a few weeks shortly after dismissal where she earned £100 per week. Then got some part-time work earning £150 per week. Then a period of unemployment, followed by securing a permanent job on £185 per week.

In the second example trying to group all the past loss under one heading is likely to be difficult. A better approach is to divide it as follows:

• Unemployment: 2 weeks @ £200 = £400
• Temporary work: 3 weeks @ £100 = £300
• Part-time work: 6 weeks @ £50 = £300
• Unemployment: 6 weeks @ £200 = £1,200
• Permanent work: 16 weeks @ £15 = £240

This will make it much easier for everyone to understand what loss you are claiming and why.

A schedule of loss should, up to a point, tell a story. It should be possible to understand what has happened to a claimant, and what he says will happen in the future, by reading it.

Types of loss

Most claims for compensation are primarily based on lost wages. But there are often other types of loss: bonuses, gym membership, lunch vouchers, car allowances, unsociable hours payments, subsidised travel, etc.

Often there will be dispute about whether all the types of loss are recoverable or how much they are worth. In such cases it is normally useful to divide them up, rather than deal with a single lump figure.

This has two advantages, firstly, as with dividing by events, it makes your schedule easier to understand.

Secondly, it makes it easier to for the tribunal to make changes to the figures. This will normally happen to a greater or lessor extent. Either the tribunal will decide that certain loss is not recoverable or that it should be calculated differently. It is much easier to make such changes if the figures are split up sensibly.