Feeling the strain

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.