One of the things you do in a tribunal hearing is read how you’re coming over to the panel. Then you can adjust your approach accordingly. If they are with you on an issue, you may want to quit while you’re ahead. If they’re not you may want to redouble your efforts (or move onto a new point). The ideal is to spend the minimum time on matters where the tribunal is already convinced (or cannot be convinced) to focus on the areas where you may change their minds.

The problem with this is that it is easy to misread the tribunal.

The most damaging result of this is that you move briskly over an area – thinking that the tribunal agrees with you – when you should be dealing with it in detail. This leads to the horrible sinking feeling when you later realise that the tribunal was not convinced at all.

Of course, it is equally possible to speak on length on something that the tribunal is already convinced of. But this tends to be less damaging. This is partly because over-convincing someone of something is normally better than failing to to convince them at all. It is also because the tribunal is more likely to step in to move you on from a point they agree with than to ask you to go back to a point that they disagree with.

There is no absolute solution to this problem. You could simply deal with every point in exhaustive detail, regardless of your reading of the tribunal. But this is likely to do do more harm than good. A concise, punchy submission focused on the areas that the tribunal is in doubt, will be more convincing than anything approaching exhaustiveness.

Like many areas of advocacy, the only thing to do is to be aware of the potential problem and aim at a happy medium. Remember that, in the absence of a clear steer, it is hard to be certain what the tribunal is thinking. Be prepared to err on the side of caution, particularly on an important point. But try not to over-correct and risk boring the tribunal, losing momentum and obscuring your best points.

Many litigation lawyers have a weakness for sports metaphors. This is probably because litigation is in some ways like a competitive game.

But there are also important differences. One is that games tend to be played on a level playing field; but in litigation what stands for the playing field is the facts of the case. Those almost always favour one side over the other.

This means that how skilfully you play the game has much less influence on the outcome of litigation than – say – tennis. If you are Andy Murray and you play a match against an ordinary local tennis club player, then unless you’re drunk, asleep or not trying, you will win. But in litigation, the better advocate can just as easily lose as win: because most of what determines the outcome is the facts, not the skill of the advocates.

One of the practical results of this is that you can’t relax just because you don’t think much of your opponent. An opponent who makes a series of hopeless arguments isn’t necessarily doing you a favour. He may inadvertently be ‘hiding the ball’. In other words, he may have a good point that he’s concealed from you by surrounding it in nonsense.

That’s ok if your opponent succeeds in hiding the ball from the tribunal, too. But it’s dangerous if the tribunal manages to spot it but you don’t: then your opponent’s best point is being made for him by the people who will make the decision in the case, and you’re not ready to meet it.

The only defence against this is to look hard at the other side’s case, and ask yourself what points you would make if you were representing them. If there are good points that they have left out, don’t make them for them, obviously; but do be ready for the possibility that the tribunal will.

Inspector Gregory: “Is there any other point to which you would wish to draw my attention?”
Holmes: “To the curious incident of the dog in the night-time.”
Inspector Gregory: “The dog did nothing in the night-time.”
Holmes: “That was the curious incident.”

People are often worried about missing evidence. For example, a claimant knows that most internal communication between his employer’s managers is conducted by email. But, during the disclosure process, no relevant emails are disclosed and their existence is denied.

One approach is to try to persuade the tribunal to allow you to dig out the information. Theoretically, a computer expert could be instructed to search their system and recover relevant evidence. This, however, will be expensive and extremely disruptive. It will almost never be considered proportionate by the tribunal and in the vast majority of cases it is futile to even try.

In 999 cases of 1000 the appropriate course is simply to cross-examine and make submissions on the missing evidence. You can point out just how implausible it is that no emails were sent. If it really is terribly unlikely, and you can convince the tribunal of that, they are likely to draw very negative conclusions about the Respondent’s credibility and conduct.

Imagine an enemy posse rushing towards you. They are dressed in bizarre and elaborate costumes, including papier mache horns, cardboard armour and joke-shop Dracula fangs. Some are brandishing pillows in a threatening manner; others are armed to the teeth with a variety of soft fruit. One has a pointed stick. All are yelling abuse.

Faced with this threat, what do you do? Wrestle them for their cushions? Rugby tackle them, pin them down and try to de-fang them? Yell abuse back, but louder? Ambush them for their fruit and make a summer pudding? Or do you focus all your attention on the threat posed by the pointed stick?

The answer may be obvious – but it is surprising how willing parties to litigation are to be distracted into squabbles that have no chance of determining the outcome of the case.

Intensifiers are adverbs intended to strengthen adjectives.

For example, writing ‘very unfair’ instead of ‘unfair’ should suggest that whatever you are referring to is more than ordinarily unfair. Similarly, you might write ‘extremely unfair’ or ‘astonishingly unfair’.

Unfortunately, due to a quirk of human psychology, this does not work. It actually has the reverse affect. To a reader sentences like:

Their behaviour was extremely unreasonable.
That was very unfair.
I was tremendously upset.

Are less convincing and less strong than:

Their behaviour was unreasonable.
That was unfair.
I was upset.

Most of us have words and phrases that we overuse.

For example, I have a tendency to start sentences with ‘clearly’ when writing submissions: as in ‘Clearly my client is right and should win his case’.

This is not a good idea. Either something is clear or it isn’t. If it is, it doesn’t need saying. If it isn’t, suggesting that it is will hinder rather than help. Even if, occasionally, ‘clearly’ is useful, overusing it is distracting and annoying.

So, during the editing phase, I go through and take out most of the ‘clearly’s

Different people have different ticks. It is worth figuring out what yours are and keeping an eye on them.

Should you prepare a list of questions? This is a question on which reasonable people disagree. The argument is basically this.

Those against say a list of prepared questions reduces your ability to adapt to changing circumstances in court. At worst, you might dry completely when the witness turns in a direction you’re not expecting. Or more subtly, you fail to adjust your manner or style to the witness because you are reading out your prepared questions and not paying enough attention to the responses. And reading out a list of questions can make you sound wooden.

Those in favour point out that producing a list of questions allows you to prepare in a degree of detail that is hard to achieve in any other way.

There are excellent advocates on either side of this issue. Probably the best advice for those who appear in court regularly is to experiment with your approach until you find what suits you best – which may well be somewhere between the two positions.

We are both list-makers. If you’re an experienced advocate and you belong to the other camp, then (quite apart from the fact that this blog isn’t really written with you in mind) we wouldn’t dream of trying to convert you: you’ve found what suits you.

But if you’re a beginner, or you’re representing yourself, or you only appear in the tribunal very occasionally, we do recommend lists of questions. It’s much better to risk sounding a bit wooden, than to miss out a crucial topic, or annoy the tribunal by coming back to the same territory over and over. A written list can also have the advantage that – if you’re representing – you may have time to run your questions past your client before you cross-examine.

There is a tendency for advocates, consciously or subconsciously, to divide documents and authorities between ‘mine’ and ‘theirs’. ‘My’ documents are those that come from my client, or are helpful to him. ‘Their’ documents are those that come from the other side, or that are helpful to them.

This is natural enough, but it is a mistake.

In most cases it is impossible to divide all the documents in this way. At least some will contain material useful – or harmful – to both sides. If you try to divide them up, you risk missing the bits in ‘their’ documents that help you. You will also miss the bits of ‘your’ documents that help them. This will hamper your ability to present the case.

This point is also true of authorities. Often a party will cite an authority that actually helps the other side. Sometimes this is because the advocate has a duty to bring up a relevant case, even though it doesn’t help him. But it happens surprisingly often in other circumstances as well. Similarly, often an authority will be broadly helpful to you, but contain a limitation or warning that is not. If so, you need to spot it, so that you can deal with it.

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.

You will often hear people in tribunal saying ‘That begs the question’. Almost all of them are misusing the phrase.

‘Begging the question’ is a term from philosophy, specifically logic, that has a technical meaning. It means to advance an argument in which the conclusion is already contained within the premises.

This is easier to see in an example:

Only thieves steal things.
I am not a thief.
Therefore I didn’t steal that money.

Here I am trying to prove that I did not steal some money. But if you examine my statement ‘I am not a thief’ it means ‘I am not a person who has stolen things in the past’. It assumes the truth of the conclusion I am trying to prove. It begs the question.

The vast majority of people do not use it in this sense, but to mean ‘That leaves an important question unanswered’. For example: ‘That begs the question; why were you in the vault with a bag of money?’

Unfortunately, this is a no-win situation. If you use the phrase correctly, most people (including lawyers and judges) will not understand you properly. If you use it incorrectly, you may cause a wince if somebody does know the correct definition. At worse, some people will think you mean one thing and some will think you mean another.

Therefore, if you want to say that your opponent’s propositions presume his conclusion, say ‘His argument is circular’. If you want to say that your opponent has left important questions unanswered, say ‘He leaves important questions unanswered’.