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Don’t overstate

A common error in advocacy is to exaggerate what a piece of evidence or set of circumstances means.

For example, a fork-lift operator is dismissed after he was involved in an accident. Suppose you’re representing him, and you argue that your client has been certified on fork-lifts for many years and has had no previous problems. Therefore, you say, it’s inconceivable that the accident was the claimant’s fault, so the dismissal must have been unfair.

The point as made is bad. It just isn’t inconceivable that a certified and experienced driver caused an accident. Well trained and experienced people make mistakes. By suggesting that they don’t, you are putting forward something no tribunal is going to accept.

Worse, by overstating, you may be concealing a good point. The Claimant’s experience does not mean that he could not make a mistake, but it does make it seem less likely. Given this, was the investigation sufficiently thorough? And given his experience and good service, was dismissal, rather than a warning or further training, within the range of reasonable responses open to the employer? Much will depend on the circumstances of the case, but either of these lines is more promising than the suggestion that fault is inconceivable.

As well as missing its own target, overstatement can damage the rest of your case. Having caught you at it once, the tribunal may begin to doubt everything else you say. If you have been stretching the truth here (whether intentionally or through thoughtlessness) how, they may think, can we trust him anywhere else? If the point’s really obvious, they may just decide that you’re an idiot – which never helps.

This is also a cultural point. UK lawyers, particularly advocates, do tend towards understatement rather than overstatement in their language. (This is, of course, a generalisation, and specific to here and now: styles are or have been different in other times and places.) Think of the stereotypical civil servant who describes a situation as ‘not frightfully helpful’ when what he means is ‘this is a cataclysmic disaster and I’m starting to panic!’ Judges are part of this culture and, human nature being as it is, may respond better when addressed in their own language. Reading a few decisions can be a useful way of tuning into the style.

One comment

  1. Dave Ratchford

    I probably should’ve said this a lot earlier, but it’s exactly this kind of sensible insight that I really appreciate from the LAG series. If anyone’s reading this and considering buying this (and Tamara Lewis’ indispensable Employment Law Adviser’s Handbook), do so without delay! Absolutely nowhere else will a non-legal trained person learn about what the law means and the advocacy skills that you can use to operate it. I’m more than grateful for that. Thanks!

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