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Make sure you’re answering the real point

File this under advice that sounds like the bloody obvious, but can be surprisingly hard to follow.

During litigation, the other side will make all sorts of arguments. Generally, you’ll be predisposed to dismiss them as dishonest, daft or just mad. That’s a natural response to the adversarial nature of tribunal litigation — even if you’re a supposedly cool and emotionally-detached lawyer.

The trouble is that this means it’s all too easy to misunderstand what your opponent is saying, either because subconsciously you want to make it easier to dismiss or just because you reject it out of hand rather than thinking about it properly.

But you need to fully understand the points that the other side is making, so that you can counter them effectively. So you must do your best to overcome your first instincts.

Probably the most important part of doing this is simply to recognise the possibility.

But one other trick is, when you get an important document from the other side (such as the ET3 or a Notice of Appeal) read it three times. First just to see what it says. Then read it as sympathetically you can. Try to imagine that you’re someone who wants to agree with the Respondent. How would you understand what they’re saying? Finally, read it critically, with an eye to how you’ll respond to their arguments.

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