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Make the judge decide

If you are representing a client (or yourself) in the employment tribunal – or any other court or tribunal, come to that – your job is to put your case to the best of your ability. The judge’s job is to decide on the outcome: that’s what they’re paid for.

Judges don’t always remember this. Sometimes you will come under considerable pressure to concede part of your case, or to agree that a view the judge expresses on the law at the beginning of the hearing is correct. Judges are supposed to be experts on the law, and lots are: but some aren’t, and even the best are wrong sometimes. So if the judge tries to get you to agree that he or she is right about some legal proposition that you’re worried about because it seems to make it harder for you to win, don’t assume you have to back down. You don’t: you are entitled to argue in favour of your case even if the judge thinks you are wrong.

There’s a tension, of course, between wanting to seem reasonable and stay on the judge’s good side, and wanting to pursue even those parts of your case that the judge has initial doubts about. You have to make a judgement about that: sometimes making some concessions is undoubtedly the right thing to do: see this previous post. But if the judge doesn’t seem to have a good side – or seems to have taken against you on sight – and you are convinced at an early stage that you are going to lose whatever you do, then you might as well stand your ground.

In particular, if you concede instead of making the judge do his or her job and make the decision, it will be more difficult to appeal even if the judge was wrong all along.

5 comments

  1. Matt Jackson

    As a potentially useful example of this, I once represented a claimant at a Preliminary Hearing on a redundancy matter.

    Our case was that the redundancy was a sham as we’d seen no evidence that anyone was going through any sort of process. The Respondent’s ET3 simply denied the claim. At the hearing they were not represented and the judge was able to get them to confirm their case was that they were closing a particular department.

    I was asked on this basis to concede there was a genuine redundancy and that the only issue was whether the process add dismissal decision was fair. It’s worth considering that there had been no disclosure of documents at this stage, so I explained that I was unwilling to do so.

    I would say you should be especially careful about making concessions when the other side hasn’t produced any evidence.

  2. John Scott

    Agreed The law is a moving feast as seen by the recent Supreme Court finding that Joint Enterprise is and has been for 30 years a grave misunderstanding by those prosecuting

  3. Douglas

    You have to convince the Judge of your version of events, which I have found on many occasions to be impossible, you have to understand “you have no reasonable prospect of success” or quite simply put this way…..

    http://www.slideshare.net/D0u9l45/beyond-belief-37875383

    I used to believe in Santa and the tooth fairy, those illusions were shattered early on in life, at a later date God and religion got the boot, finally honesty is the best policy took a tumble when I encountered a Judge, a tribunal and the law

    Please, please,please do not go to any tribunal, access to Justice is a privilege like private education and Oxford , Cambridge etc 70% of judges follow this path the other 30% mix within and aspire to it, so unless you are from their class THEY WILL NOT LISTEN. Money talks….

    You have no prospect of a reasonable success.

    or as the law puts it

    no reasonable prospect of success.

    • Vinookumar Sachania

      Last years I represent my case as a claimant, during the hearing Judge advice to defendant during my cross examination that “You can allow to say you do not remember) Judge her self give so-many indication to defendant what to answer. I strong believe Judge not act with good faith and I lost case because of dishonesty with me by Judge

      The judge behavior very close to defendant’s barrister. Judge delay my case a lot and I won primary hearing on but that time she was not my Judge. I did appeal but lost because of legal Technic

  4. Douglas

    Just watched episode 3 of the new Poldark series, although fictional Warleggan’s corrupt judgment was a horrible reminder of the one I received.

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