Pompous writing is very common among lawyers, and if you aspire to be a lawyer or to be taken seriously by lawyers it can be tempting to fall into the same bad habits. But it’s not necessary: the clue is in the word “bad.”

For example, solicitors often start letters with something like: “We write further to our letter of 15 May 2009 in relation to this matter.”

Phrases like this are just junk, cluttering the message of the letter. Let’s consider it in sections:

We write

Obviously they write! It’s a letter, after all. Did they think you might mistake it for a semaphore message if they didn’t start by telling you they were writing to you?

further to our letter of 15 May 2009

If they wrote previously on 15 May 2009, it’s obvious that this letter is ‘further’ to that letter. But what does that tell you that you didn’t know already?

in relation to

In passing – what’s wrong with “about”?

in relation to this matter

Telling you what is the ‘matter’ that is the subject of the letter is what the heading at the top of the letter is for; there’s no need to say it again in the first sentence.

It is helpful to open, “Thank you for your letter of [date],” so that the recipient knows you’ve had their last letter and that is what you are responding to. “Thank you” is just polite: no-one will think it means you are actually grateful for their letter – so there’s no need to fall over your feet distancing yourself from that idea with “I acknowledge receipt of…”

But this isn’t really a post about those two particular phrases. The point is that the message of a letter – or any other piece of writing – will be clearer if it is not all bundled up in pompous waffle.

The Ministry of Justice has just published its research into employment tribunal awards and whether they are being paid. They surveyed 1,002 successful claimants.

It makes interesting, if depressing, reading.

39% had been paid nothing. 8% had been paid something, but less than the amount awarded. Only 53% had been paid in full.

This is a grim statistic, but it is worth putting it in context. Of those who had not been paid, only 36% had gone to the county court. In other words, nearly two thirds of those who had not been paid had failed to take enforcement steps.

Enforcement is not a silver bullet. It can be frustrating and is not always successful. But, if you have got through the tribunal process successfully, you should not give up lightly. The hardest work is behind you.

‘How to start enforcing a tribunal award’ explains how to begin.

Ministry of Justice Research Series 9/09

If you are cross-examining a witness, don’t comment on his answers.

That needs a little explanation. You can ask follow-up questions of the sort “But that makes no sense, does it, because…?” You can contradict: “But if you turn to page 247 of the bundle, we can see that that can’t be true?” You might even want to summarise the last few answers for impact: “So you’d seen Chris crying at her desk more than once in the last week, you knew she’d recently been off with stress, you were aware her GP was asking for her to be given a less pressured role, you’d read the OH report, you knew the Productions Team was under exceptional pressure, you knew the team leader had the reputation of a bully – and knowing all that you thought transferring her to Productions in the final month before the launch was reasonable?”

In a sense those sorts of questions are comments, but they are comments of the kind that call for an answer, and so a legitimate part of cross-examination. The point is to put the witness on the spot.

But comments like “We don’t agree with that,” or “We’ll have to agree to differ there,” or “That’s just not true!” don’t put the witness on the spot at all – you’ll either get a shrug in response, or a bit of panto of the “oh yes it is!” – “oh no it’s not!” variety. Neither takes the case any further forward.

This may seem obvious, but it is surprising how often it gets forgotten.

The problem seems to be a failure of communication between advisers, for whom the process is routine, and witnesses, for whom it is normally a complete one-off. Advisers think it’s obvious that the witness must be satisfied that the statement is all true: after all, it is a document that says at the top ‘statement of Joe Bloggs’ and has a place at the bottom for Joe Bloggs to confirm that the statement is true and sign it. Of course Joe Bloggs won’t sign it unless he is convinced that it is true.

But of course nothing of the sort. The currency has been devalued. An employment judge might throw up his hands in horror at the idea that a witness has sworn to a statement that, actually, he hasn’t bothered to check properly – but the same employment judge has undoubtedly ticked boxes confirming “I have read and accept the terms and conditions” half a dozen times in the last month, when what he really meant each time was “I can’t be bothered to read the small print, but I’m willing to accept it on the gamble that there’s nothing too outrageous in it.”

A witness statement is completely different. If you are a witness, you mustn’t sign your statement unless the confirmation at the end that it is true really does mean what it says. If your adviser has drafted something that puts an inaccurate ‘spin’ on what you’ve told them, make them correct it. If they’ve stated something as definite that you’re not sure about, change it so that the statement makes it clear you’re not sure. Putting your evidence in writing in a clear and logical order is your adviser’s job, if you’re lucky enough to have one; but making sure your evidence is correct is yours, and no-one else’s.

Advisers can sometimes cross the line between presenting your evidence clearly and persuasively (which is perfectly legitimate) and telling you what to say (which is not). If there’s a tussle over your evidence, it’s one you need to win; and if you come under explicit pressure to give evidence that is not true, sack your adviser.

The best way of grasping how important this is is to understand a bit about what it’s like to be cross-examined. Quite often there’s a sequence of questions that goes something like this:

Q: You have just sworn that your statement is true haven’t you?
A: Yes.
Q: And you approved and signed it a couple of weeks ago?
A: Yes.
Q: You wouldn’t have signed it without checking carefully that it was true?
A: No: [Actually - for the reasons given above - this is nonsense. All the same, 99 witnesses in a hundred will give the 'right' answer to this sort of question.]
Q: And presumably you’ve read it again recently?
A: Yes.
Q: So if there was anything in it you weren’t confident about, you’d have corrected it before you swore to the tribunal that it was true?
A: Yes.
Q: So when you say at paragraph 12 of your statement that it was Tuesday 5 May that Sheila shouted at you in front of the whole office, you’re sure that’s right?
A: Yes.
Q: And you’d remember that clearly, because it was the first day back after the Bank Holiday?
A: Yes.

This is ominous. The respondent’s representative wouldn’t be working so hard at confirming your evidence about the date on which you say Sheila shouted at you unless she was pretty sure she could prove you wrong. Her aim is to prove you a liar, rather than merely mistaken or careless – hence the emphasis on how sure you are of this bit of your evidence. You are almost certainly about to be taken to a page in the bundle that proves – or seems to prove – that one of you wasn’t in the office at all on Tuesday 5 May.

That’s why it is so important that your statement is your statement. Read the first sentence in your statement, and imagine the respondent’s representative taking you to it and asking you “Are you sure of this?” If the thought gives you a sick feeling, delete or rewrite the sentence. Repeat for every sentence in your statement. When you’ve finished, and made all the changes you need to make, you can sign your statement: not before.

The rule about putting documents into chronological order also applies to witness statements. Begin the story at the beginning and go on to the end. This makes it much easier for the tribunal to understand what you are trying to say.

Finding out the current rate of interest to be applied to an award of damages for discrimination is more difficult than it ought to be.

The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 say:

the rate of interest to be applied shall be, in England and Wales, the rate from time to time prescribed for the Special Investment Account under rule 27(1) of the Court Funds Rules 1987

The Court Funds Office publishes a leaflet setting out all the rate changes since 1965.

The rate went down from 6% (where it had been constant since 2002) to 3% from 1 February 2009. It’s due to go down again to 1.5% on 1 June 2009.

Mostly it’s fairly clear which side any given witness’s evidence supports, but once in a while there’s a witness who has relevant things to say, some of which help one side, and some of which help the other. In those cases, both sides may be thinking of calling the same witness.

A witness isn’t ‘owned’ by one side or the other. There’s no rule that once the other side has interviewed a particular witness, you’re not allowed to. In fact there’s nothing to prevent a witness giving a statement to each side.

But there are two important things you mustn’t do in this situation. The first is to ask the witness – or let them give you – information about your employer’s case preparation. That information is privileged, and you are not entitled to it. It’s probably worth pointing this out to them when you speak to them – and make sure they understand that the same holds the other way: they mustn’t leak information about your case preparation back to your employer, either. The second is put pressure on them not to give evidence for your employer.

If your employer finds out that you’ve been doing either, they are liable to make a big fuss about it to the tribunal of the kind that could result in a costs order against you – or even having your claim struck out.

There are two recent developments on the minimum wage:

1. The Court of Appeal has ruled in Revenue and Customs Commissioners v Annabel’s (Berkeley Square) Ltd. that tips paid into a ‘tronc’ and then distributed don’t count towards the minimum wage:

2. The rate of the minimum wage will go up to £5.80 per hour in October 2009 (from the current rate of £5.73).

If you are paid less than £5.73 per hour, you are being underpaid, and your employer is committing an offence.

There were media reports in March this year of a secret construction industry blacklist that employers could use to check out potential employees’ employment and trade union history. Today, the BBC reports on a promise by Lord Mandelson to introduce regulations to outlaw the use of blacklists in this way. Consultation is expected to start in June.

Quite often schedules of loss will leave off figures for some types of damage and replace them with words like ‘in the tribunal’s discretion’ or ‘to be assessed’. The expectation is that the tribunal will fill in the blanks.

This is not a good idea.

Your submissions, including your schedule of loss, should ask the tribunal to do something. There should not be gaps, where the tribunal does not know what you are asking for.

This is partly a practical issue. Things will be easier for everyone involved if it is clear what the claimant is trying to achieve.

The other issue is one of advocacy. The schedule is an opportunity to persuade the tribunal and to set up other submissions.

Imagine a case in which a women unfairly dismissed a few months before starting maternity leave. She will want to claim for the loss of earnings flowing from the dismissal. The hearing takes place about a month after she gives birth. One approach would be to claim for loss up to the hearing, then leave future loss ‘at the discretion of the tribunal’.

A better approach, however, would be to set out exactly what the loss is likely to be. The Claimant may not yet be in a position to seek work. So set out when she will be able to start looking. She will probably have some difficulty in finding a job. The job market is unfriendly to new mothers and she will need to balance her search with her new childcare responsibilities. So she should claim for a considerable period of time to reflect this – probably at least six months. When she finds a new job it may well be on a lower salary. It will take time to work back to her old earnings. So she should claim for that period as well.

All of this will be contested by the respondent. He will say that the Claimant should start looking for work immediately and that she will probably find a new job, at her old salary, very quickly. The tribunal may agree, at least to some extent.

But setting out a position is more persuasive than leaving things entirely to the tribunal. It also gives you the opportunity to make more submissions. Once you say ‘at the discretion of the tribunal’ it is difficult to say much else. After all, you have said you are leaving it to them. If you say precisely what you want the tribunal to do, you can call evidence and make submissions to support your position.