Tagged: advocacy

· Written by

The Elevator Pitch

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.

· Written by

No funny voices

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.

· Written by

What really happened

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.’

· Written by

Conclusions – at the beginning or the end

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?

· Written by

Don’t go too fast

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.

· Written by

Mark Bennet on Cross-Examination

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

· Written by

Don’t overstate

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.

· Written by

The dangers of reading the tribunal

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.

· Written by

Hiding the ball

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.

· Written by

Dogs that don’t bark

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.