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.

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.

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?

Salespeople have a concept called the elevator pitch.

This is the pitch you would use if you find yourself in a lift with the Head Honcho of your potential customer. So you have 60 seconds or so. You have to make your case – what you’re selling and why they should buy it – as simply and clearly as possible.

The idea is not that you are likely to be riding an elevator with the CEO. It’s to strip what you have to say down to the essentials, so that you have a clear idea of just what your point is.

This is a useful exercise when preparing for a tribunal case.

Lawyers can tend towards hyperbole on this; saying things like “Every case has only one point in it”. This is an exaggeration. But almost all cases can be summed up shortly and simply.

For example:

I wasn’t given a promotion, because I was a woman. That’s sex discrimination.

I was sacked because they said I’d stolen stock. They based that on the fact that some stock was missing from my area. But, if they’d checked with other areas, they’d have realised that everyone has stock control issues. Actually, my stock control was better than most. So my dismissal was unfair.

My collegues made homophobic jokes in emails they sent to all employees. As a gay man I found this very unpleasant. So I have suffered sexual orientation harassment.

All of these cases would need considerable elaboration to succeed or even for an ET1 to be drafted. But the core point is simple. And it’s worth having a clear idea of what that simple, core point is – so that you can focus on what is important.

For the avoidance of any possible doubt, if you should find yourself in a lift with a member of your tribunal, do not ‘pitch’ them on your case. Just nod politely and, if conversation is absolutely necessary, talk about the weather.

At no point during a tribunal hearing should you adopt a funny voice or do an impression of a witness. Not in cross-examination and not in submissions either. And definitely not while giving evidence. Some will think this advice superfluous – but we have both encountered representatives who have done these things.

This is an extreme example of a more general point. If you haven’t been in a tribunal before, your closest experience may simply be an argument or a quarrel. It’s a valid comparison – a tribunal hearing is basically a kind of formal quarrel, with the judge acting as referee.

But the formality and the referee are key differences. Many of the tactics that people use in an ordinary quarrel won’t work – and will most likely backfire – if tried in the tribunal. That includes mocking your opponent; shouting them down; pretending not to understand their point; emotional blackmail; baffling them with jargon; and storming off in a huff.

Why won’t these tactics work? Because tribunals are supposed to decide cases on the evidence and the law – not on which party can shout louder, or weep more convincingly, or mock the other more effectively. At best such tactics waste time and create noise that distracts from the points you should be making.

At worst you will annoy the tribunal by making an obvious bid to play on their feelings. And the tribunal, no matter how objective they try to be, are human and affected by their emotions, like everyone else. So the result will be, if anything, to make it less likely that you win.

Presenting a case is an exercise in storytelling. The two parties tell the tribunal rival stories, and the tribunal decides which one it believes.

Stories with gaps or implausible plot twists are less likely to be believed than stories that hang together and fit with what the tribunal already knows about human nature. So if your story goes (for instance): “I was a reliable and competent employee and I’d got on well with my manager for 3 years, and then suddenly and for no reason she started picking on me and finding fault with everything I did, and then put me on performance management procedures and ultimately sacked me,” the tribunal is likely to struggle with that. Why did she suddenly start picking on you? There’s got to be something more to it.

If you can help the tribunal with that, you’ll improve your prospects. You may not be able to: the true story may be something that’s been kept from you. But it’s worth thinking about whether you can work out why the people you say treated you badly behaved the way they did.

An example (drawn roughly from life – names and other details changed, of course) may help make the point:

Janet was a civil servant. She’d been employed in a large government department for over 20 years, having joined as a school-leaver at 16. She was a reliable and hard-working employee, and her managers valued her. She was by now an HEO (Higher Executive Officer), and had for a couple of years, with her managers’ support, been looking for a suitable SEO (Senior Executive Officer) job – the next grade up.

The office Janet worked in was reorganised, with the result that the 4 existing HEO jobs in that office were going to be replaced by 3 new HEO jobs. The existing HEOs were invited to apply for the 3 jobs, but Janet’s manager, Paul, told her she shouldn’t bother: this was the ideal opportunity to get her into an SEO job, and he had a couple in mind for her. So Janet didn’t apply, and the 3 remaining HEO jobs went to her colleagues. But then promised meetings about Janet’s fate got repeatedly postponed, and she started to feel that Paul was avoiding her. Her existing role dwindled to nothing, the office space was being redesigned; presently her room was measured for furniture for its new occupant, and still she had no news about what the department was going to do with her. She went off sick with stress and depression.

Finally, Paul and Janet had a meeting in which he offered her an HEO job in another office, further away from her home, where she’d always said she didn’t want to work. When she asked ‘but what about the SEO job you promised me?’ he denied ever having made the promise, and told her that she didn’t yet have the skills for an SEO job and would need an extended period of training in a supernumerary role before she was ready for an SEO job – and anyway, none was available at the moment.

Janet resigned and claimed constructive dismissal.

If Janet convinces the tribunal that this story is true, she probably wins her constructive unfair dismissal claim. But it’s an odd story. Everyone agrees that she was a valued employee. She’d always been on good terms with Paul previously, and he had always seemed a good and rational manager. She’s not aware of anything she’s done to turn him against her. She’s asking the tribunal to believe that he suddenly started treating her with bewildering unfairness, and telling lies about their previous conversations. What’s going on? Janet will have a better chance of succeeding if she can offer the tribunal a theory about why he might be doing this.

Here’s the back-story:

Paul genuinely thought that he had a couple of possible SEO jobs lined up for Janet when he told her not to bother applying for the HEO jobs in her own workplace, and he believed he would be able to place her in one of them. Getting Janet to drop out of the competition for the 3 HEO jobs saved him quite a lot of trouble – he could just slot her 3 colleagues in without interviews. He was busy and hassled at the time of the reorganisation, so he gave Janet that assurance without checking it out properly. Then when he came to try to place her in one of the SEO jobs, he found someone more senior had other ideas.

Now he was in a fix: he’d made Janet a promise he couldn’t fulfil, to the detriment of her career; and, worse he’d ducked dealing with it until she was off sick with stress, so he’d damaged her health too. Clearing up the mess honestly would have meant apologising to Janet and admitting to his superiors that he’d made quite serious mistakes. Pretending he hadn’t made the promise, and saying Janet wasn’t ready for an SEO job anyway, seemed to him like the easy way out.

This doesn’t reflect well on Paul, but it’s a perfectly comprehensible story of a normally decent manager backing himself into a corner where he faced a fairly tough test of his integrity – and flunked it. It’s certainly a much more credible tale than, ‘My previously decent and caring manager suddenly started victimising me for no apparent reason.’

The format of a lot of advocacy, both written and oral, is to propose a conclusion and provide evidence or explanation to support that conclusion.

So, for example, you might write:

Ms Jones was unfairly dismissed. Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account.

Here, the conclusion is that Ms Jones was unfairly dismissed. The explanation is the detail relating to the shortcomings of Mr Smith’s investigation.

In the example above, the conclusion comes first and then the explanation follows. It could equally be written with the explanation first.

Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account. These failures mean that Ms Jones’ dismissal was unfair.

Whether you should lead with the conclusion or the support for it will depend on the situation. Sometimes it will be best to set out what you are going to try to prove, so that the tribunal can see the point of what you are saying. Other times, it will be best to prepare the ground by putting the evidence first. Or your conclusion may not make sense until some other matters are explained.

Quite often, it will just not matter.

Do avoid, however, trying to put a conclusion in the middle of your argument.

Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Ms Jones’ dismissal was therefore unfair. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account.

This is just confusing. The conclusion gets lost in a muddle of other points. It also become difficult to see what the CCTV point is about. Is it more evidence of a bad investigation? Or is it a new, and separate point?

One of the overarching points we make here, and in the book, is that concise focused advocacy is a good thing. This is not quite the same as saying ‘Going fast is better than going slow’, but it does often come down to the same thing.

A certain amount of speed in tribunal is generally good. Tribunals like to move through cases and get to the bottom of things; they do not like long, rambling cross-examination or interminable submissions. You will rarely do your case any favours by dawdling.

On the other hand, it is possible to go too quickly. It is no good trying to give the tribunal information faster than they can absorb it.

There are two main causes of excessive speed. The first is simply nervousness. Many of us start to gabble a bit (or a lot) under stress. Always try to speak calmly and, if you need to, stop and take some deep breaths.

The second problem is that, by the time you reach the tribunal, you should know your case and what you have to say very well. It is easy to forget that the tribunal is coming to it fresh and will sometimes need a little while to catch up.

This can a particularly problem where your case touches on something unfamiliar to the tribunal. You can expect your tribunal to know employment law and common employment situations very well. When you have dealt with hundreds of unfair dismissal cases and read hundreds of disciplinary policies, you can grasp the next one very quickly. But if your case involves some obscure area of law, or the technicalities of sprocket calibration in your particular industry, you will normally need to take those parts little slower.

A good bit of old fashioned advice to new lawyers was ‘Watch the Judge’s pen’. In other words, if the Judge has stopped writing you are going too slow, but if he is forced to scribble furiously you are going too fast. Typing has mostly replaced scribbling, but the general point holds.

Tribunals will also give you a lot of guidance. If you move too quickly you will be stopped and taken back. Once the tribunal has said a few time ‘Just one moment, Ms Smith, could you just go back a bit?’ you should adjust your speed.

In planning a cross-examination, we start with statements that the witness can’t deny without appearing dishonest … leading to statements that the witness could credibly deny but for the first level of admissions, then to statements that the witness could credibly deny but for the first two levels of admissions, and so forth. Just like building a pyramid. The objective at every step is to make a statement that the witness has to either agree with or appear dishonest.

From Empathy and Cross-Examination

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.