Tagged: advocacy

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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.

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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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Don’t make the reader clamber over a pile of scaffolding

1.  In this skeleton argument, references to pages of the core bundle will be in square brackets, in bold print, with the prefix “core.” References to numbered pages of the supplementary bundle will be in bold square brackets with the prefix “supp.”

2.  This is an appeal from the decision of the Watford Employment Tribunal (“the ET”) to uphold a complaint of unfair dismissal by the Respondent (the Claimant below, and hereafter referred to as “the Claimant”) against the  Appellant Council (the Respondent in the ET claim, and hereafter referred to as “the Council.”)

3.  On 7 April 2012, the EAT (Baggins J) ordered that the appeal be set down for a full hearing [core/1-2].

Skeleton arguments and written submissions often begin with stuff like this: information about how the document should be read, the procedural history of the case and so on. It makes me think of scaffolding because it was functional once, but by the time the building’s finished it should all have been tidied away out of sight.

It’s true, no doubt, that the average judge starting to read a skeleton argument or set of written submissions isn’t expecting much in the way of laugh-out-loud moments, or goose-pimple thrills. But all the same: it’s safe to assume that your judge is clever, busy, and in a hurry. These sorts of introductory paragraphs are a bad use of the limited time and attention she has to spend on your case. They’re an especially bad use of the first few moments of it.

Paragraph 1 tells the judge something she can be expected to guess without difficulty. She’s been given a bundle called ‘core bundle,’ and another bundle called ‘supplementary bundle.’ If you put a reference that goes [core 48] in your skeleton, what’s she likely to think you mean? Is she going to start hunting around for apple cores, or is she going to reach for the core bundle and turn to page 48?

Paragraph 2 starts by repeating information contained in the notice of appeal. Why? Then it tells the judge how you’re going to refer to the parties. But if the claim was an unfair dismissal claim brought against a local authority, the expressions ‘the Claimant’ and ‘the Council’ are perfectly clear without explanation.

Paragraph 3 tells the judge something else she can be taken to know. You’re all there, aren’t you? So someone must have let the appeal through to a full hearing; and the order will be in the bundle.

So get on with it. Say something meaningful in your first paragraph that helps the court get a grip on what the case is all about – and, ideally, does so in a way that improves your chances of winning.

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Back to basics

If you’ve been doing employment tribunal work long enough, and well enough, that you’re no longer a beginner, it’s still worth going back to where you started from time to time.

For example:

  • Read a basic guide (Tamara Lewis’ Employment Law: An Adviser’s Handbook
    is the best one-volume guide).
  • Carefully re-read some of the classic cases. For example, almost anyone’s understanding of employment status issues will be improved by reading slowly and critically: Ready Mixed Concrete v Minister of Pensions and National Insurance; Carmichael v National Power Plc and Autoclenz Ltd v Belcher.
  • Pick up one of the standard advocacy texts. I like Keith Evans’ Advocacy in Court. It’s primarily aimed at criminal barristers, but it’s easy to adjust. (It also contains the single best bit of advice for the style of advocacy in tribunals — model yourself on a brisk, efficient civil servant there to help the tribunal by presenting your client’s side.)
  • Arrange to do some training for beginners — so you really have to focus hard on something you already know.

You will probably find that there is some stuff that you should know (and thought you did) which you don’t really. And, with some experience under your belt, you should gain a deeper, more sophisticated understanding of the basics.

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The Imaginary, but angry Judge

The vast majority of Employment Judges are, the vast majority of the time, calm and reasonable.

It’s useful, however, to have in mind, when preparing your case, an imaginary Judge, who is rather angry and doesn’t seem to know much employment law. Imagine that, at any given moment in your cross-examination or submissions he might break in to say ‘What on earth are you talking about, Mr Reed? This all seems like complete nonsense to me!’

Would you be able to convince this testy Judge that you’re right? Can you support your position with the necessary scaffolding of legislation and case-law? Can you explain why your line of questioning is relevant to an issue in the case? Because if not, you may be heading for trouble. If you can’t support your view, maybe you’re wrong. And, even if you’re not, exactly how are you going to persuade a Judge who has doubts?

(I think this is really advice for professional representatives, who might find it a useful mental exercise – if they haven’t already internalised the process. If you’re a litigant in person, imagining a Judge asking agressive questions may just make you stressed. If you’re worried about this, I’d suggest observing a few hearings and see how real, rather than imaginary, Judges behave.)

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The aim of written submissions

The primary aim of written submissions to persuade the Judge to decide in your favour. This means doing two things. First, explaining your case (both factually and legally) to the Judge. Second, persuading them that you are right.

It’s important to remember that the second part — convincing the Judge you’re right — is dependent on the first. It’s hard to convince anyone of an argument they don’t understand.

It’s also important to remember that explaining a case is quite difficult. The main problem with most bad written submissions is that they’re hard to understand.

As a useful point to aim at, remember that if the Judge was given your written submissions to read (but nothing else), having read them she should:

  • Know basically what has happened
  • Know what issues she will have to decide (both factual and legal)
  • Know what you say about those issues
  • Be convinced you’re right

There are any number of ways that this can go wrong. Often the problem is not so much with writing written submissions, but the writer’s underlying understanding of the case. If you don’t know what the issues are and what you should say about them, it’s going to be tough to write submissions. Although, having said that, lots of us use the process of writing written submissions as a way of working out exactly what a case is about. This is fine, provided you do fully understand the case when you’re finished.

Even if your understanding of the case is solid, it’s still possible to write very bad submissions. When in doubt, its best to simply focus on explaining your case as plainly and simply as possible. And being as concise as possible.

This is partly because of how advocacy affects tribunal decision making. In most cases it doesn’t matter much — the facts and law are clear enough that the tribunal will make the same decision regardless of the advocacy. Of the remaining cases, most are lost by bad advocacy.

This is normally a failure to either explain the case or bring the attention of the tribunal to the relevant evidence. For example, the real problem with the dismissal is a failure to investigate the alleged misconduct. But it is not a total failure to investigate and, superficially, the right steps seem to have been taken. If an advocate spends all his time attacking the conduct of the disciplinary hearing (which wasn’t actually unfair) or is simply incoherent when discussing the investigation, it is all too easy for the tribunal to miss the point.

A small number of cases are won by good advocacy. A superb cross-examination of a difficult witness or a persuasive oral submission. This is the sort of thing we all aspire to and tell stories about later. As a beginner or a self-represented litigant, however, it’s almost certainly better to focus on the basics. Make sure you’ve set out your case clearly so the tribunal can easily understand it and you have done 90% of what anyone (even the most formidable QC) could do.

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Confirmation bias

‘Confirmation bias’ is the name given to the psychological process by which we all tend to fit the evidence we encounter to our pre-existing beliefs, instead of letting our beliefs be formed by the evidence. A variant of it is the tendency to make up our minds very quickly, on the basis of a very small amount of evidence, and then fit the rest of the evidence to that initial hypothesis. There’s an amusing and informative general discussion of confirmation bias here.

This tendency is pretty much universal, and not going away any time soon. No doubt it’s the reason first impressions matter so much in job interviews. Often it won’t matter – and sometimes (as, for example, if you’re convincing yourself that your own irrevocable life decisions were good ones) it may be positively beneficial. But it’s a bad thing in legal proceedings. Tribunals will do their best to hear all the evidence and then make up their minds on the totality of what they’ve heard. But they are subject to these quirks of psychology like everyone else. Making up their minds too early on in the hearing, and then fitting the rest of the evidence they hear to the theory of the case that they have already formed is (imho) one of the ways tribunals most often get cases wrong.

How does it help to be aware of this? I think there are a couple of practical points.

If you’re giving evidence first

You might think that confirmation bias means there’s a real advantage in giving your evidence first. Even if it did, there’d rarely be anything you could do to exploit that advantage, because in general the order in which the evidence is heard depends on the nature of the case. If you’re claiming constructive dismissal or discrimination, you will go first; if you are claiming ordinary unfair dismissal, the employer will normally go first.

But I think that going first is more likely to be a disadvantage than an advantage. Answering, in public, a series of hostile questions designed to trip you up and show you to be a liar is thoroughly stressful, and not many people show their best qualities under those conditions. Because most cases are really about the employer’s decision-making, their evidence is actually more important than yours. But if by the time they give their evidence, the tribunal already has a theory of the case that goes ‘the Claimant is paranoid and unreasonable’ or ‘the Claimant was lazy and incompetent and deserved everything he got,’ it may do you no good if even if you can tie them in all manner of knots. The tribunal will give them the benefit of every doubt and reinterpret everything they hear to fit their theory of the case.

So don’t expect to win your case while you’re giving evidence: if you win, it’s much more likely to be because of the way your employer’s witnesses give theirs. The best thing you can do while giving your own evidence is to stay out of trouble: in other words, avoid giving the tribunal any reason to dislike you. That means not telling lies, not dodging questions, not making long speeches. Resist every temptation to improve your story, or even buff it a tiny bit round the edges. Just tell the plain unvarnished truth in answer to every question, even when you’d really rather not. This will reduce the risk that the tribunal takes a dislike to you while you’re giving your evidence. (It will also make you really, really boring to cross-examine; but providing your employer’s barrister with entertainment probably isn’t high on your list of priorities anyway.)

Making an opening statement

If you can foresee a difficulty with your case, it may be worth considering making a brief opening statement before the evidence begins.

Tribunals don’t normally expect parties or their representatives to make openings statements, and if you try you may well be met with a response along the lines ‘Oh do shut up – let’s get on with the evidence.’ So if you want to make an opening statement, you’ll need to start by asking permission to do so, and explaining briefly why you want to.

In the right case, this can be quite a powerful way of countering confirmation bias – or putting it to work on your side. The two parties will have competing theories of the case. If the respondent’s is clear and simple, and yours is much more subtle and can only be properly understood once a lot of evidence has been heard, you’re on the back foot already. But if you can reduce your theory of the case to a few sentences, at least the tribunal will know where you’re going when you start delving into the subtleties; and if you’ve made your theory persuasive enough, you might even have managed to engage confirmation bias on your side.

An example may help understand how this can work.

Suppose the respondent’s theory is: C took loads of sick leave over the last 2 years of his employment, and we finally dismissed him because there seemed to be no good reason to expect that to improve.

And suppose your theory is: I was a hard-working and dedicated employee for years, but 2 or 3 years before I was dismissed my employer started hounding me about largely imaginary poor performance, and trumping up disciplinary charges against me which caused me immense stress for months only to fizzle out. They carried on like this until I became ill, and then they dismissed me for the poor attendance that they had caused.

There’s nothing inherently implausible about your theory. But there’s big problem with it all the same: it is much more complicated, and relies on much more evidence, than the employer’s. So if the tribunal doesn’t really know where you’re going, and you start cross-examining the employer’s witnesses about how they treated you 5 years before the dismissal, you’re likely to meet with the objection that this is ancient history. If you’ve told them your theory before you started, there’s a better chance that they will see the relevance of these questions, and listen patiently.

Being well-prepared

That’s always safe advice, isn’t it? But I think confirmation bias is one of the reasons why it’s good advice. If the facts are on your side, you can win your case even if you turn up late, your bundle’s in a muddle, your witness statement is a single 50-page paragraph all written in capital letters, and you haven’t done a list of issues or a chronology at all. But all those things will tend to make the tribunal feel tired, and disinclined to like you. One of the ways of getting confirmation bias engaged on your side is by claiming the moral high ground in all those small ways. It’s the tribunal equivalent of arriving at a job interview on time, smartly dressed and with clean fingernails, a pleasant smile and a firm brief handshake.

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Supreme Court Briefs

The American Bar Association makes all of the merits briefs to the US Supreme court available online.

Don’t rush off to read them if you’re just running your own case in the tribunal. Since the US has a different legal system the law they discuss is irrelevant to you. Also, they argue cases, particularly on appeal, very differently. US appeals are basically decided on the papers. Even in the Supreme Court, lawyers are usually restricted to half an hour oral argument. So US briefs have to argue the whole case, rather than being skeletons to be fleshed out orally.

So, the US briefs aren’t directly relevant and, if you’re just doing the one case, your time is better spent elsewhere.

But, if you do a lot of cases or you’re interested in legal writing, they are well worth a read. Many of the lawyers arguing in the US Supreme Court are brilliant advocates and the US system encourages them to hone their written work. You can learn a lot about how to set out and argue a point by studying their example.

A hat-tip to Carl Gardner, whose Written constitutions: a warning from America prompted this post. And, come to think of it, is also worth reading to see good legal writing.

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When C Sued R

During the course of litigation, you will have to refer to the parties, in letters, written submissions and so on.

There are basically two ways of doing this. You can call them by their names: ‘Mr Smith sued Mr Jones’. Or you can call them by their titles: ‘The Claimant sued the Respondent’ or sometimes ‘Claimant sued Respondent’.

It doesn’t really matter which you pick. People have different styles and most of us switch between them depending on what we’re doing (although I tend to remain consistent within a document to avoid confusion).

I have seen people write ‘C’ for Claimant and ‘R’ for Respondent. This is a bad idea, just because it looks slightly odd and the single initial tends to interrupt the flow.

Never consistently call your client ‘Mr Smith’ while referring to his employer as ‘the Respondent’. This is a hoary old trick aimed at making Mr Smith seem human and sympathetic, while depersonalising the Respondent. It is so ancient and so well known that, far from being moved to sympathy, the tribunal will be insulted by the fact that you’re taking them for rubes.

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Criticising investigations

Investigations are a common battleground in unfair dismissal cases, particularly where an employee is accused of misconduct. Employers have to carry out a reasonable investigation and failure to do so may make a dismissal unfair. Often, therefore, the employee will argue that the investigation was inadequate or flawed.

The most persuasive way of making this sort of argument is to identify a specific problem with the investigation. Normally this will be something that the employer should have done, but didn’t. For example ‘they refused to interview Sam, who saw everything’ or ‘they didn’t look at the CCTV that recorded the incident’. It might also be something they did, but shouldn’t have. For example, ‘they took statements from Kevin and Mary, who were just repeating what they’d heard from Phil’.

The unpersuasive way of making this sort of argument is make general negative remarks about the investigation. For example ‘the investigation was cursory’ or ‘they didn’t really investigate properly’. This doesn’t really take you any further. ‘The investigation was unreasonable, because it was cursory’ basically means ‘the investigation was unreasonable, because it was unreasonable’. To be persuasive, you need to go on, to identify exactly where the investigation fell short. If you can’t, you probably need to think hard about whether the investigation was unreasonable.

It is sometimes a useful exercise to imagine how you would have investigated, had you been in the employer’s position. Who would you have spoken too? What evidence would you have wanted to see?