The last post advised against using exclamation marks in legal writing. A similar rule applies when speaking. If a transcript of what you say would be littered with exclamation marks then you are doing it wrong.

Modern courts are not the place for passionate oratory. This is particularly true of the employment tribunal, which is more down to earth than most. This does not mean that the tribunal should be addressed in a monotone, but you should be calm and considered, not excitable.

If your case isn’t really very exciting (and many aren’t) you will just make yourself look silly by overplaying it. If your case is dramatic (and many are) its drama will come out anyway and be all the more powerful for being understated.

This unruffled ideal is easier to achieve as a professional representative than as a litigant in person. If you are talking about upsetting events that have happened to you, there is a good chance you will become upset. This is nothing to worry about. Tribunals are used to people in all sorts of states; from mildly stressed through visibly disturbed to total hysterics. The point is to remain as calm as you can. Most importantly, don’t make a deliberate play for the tribunal’s sympathy. This will almost always backfire.

It is often useful to number issues or similar topics. It provides structure and organisation. For example, in a written submission it is common to see something like:

Issues

1. Was Mr Smith an employee of Widget Makers Incorporated?
2. Did the letter sent by Mr Jones to Mr Smith comply with the requirements of a Step 1 letter under the Standard Dismissal and Disciplinary Procedure?
3. Did the decision to dismiss Mr Smith fall within the range of reasonable responses?
4. Should Mr Smith’s compensatory award be reduced to reflect his contribution to his dismissal?

But always remember that the point of doing this is to make things easier, not to introduce a new source of potential confusion.

If your written submissions list a set of issues on page 2, then on page 11 you refer to ‘Issue 3′, there is a good chance that the person reading it will not remember what that issue is. They will have stop reading, break their train of thought, and flip back to page 2. Or they may press on, uncertain of what you are getting at, but hoping that it will become clear from what comes next. Neither of these possibilities is a good thing.

The solution is to refer to the nature of the issue as well as the number. For example:

Issue 3: Range of reasonable responses

Submissions arguing that dismissal fell outside the range of reasonable responses.

Mark Bennett, a Texan criminal defence attorney, practices a very different sort of law to us. In fact, we’re probably as far apart as it’s possible to be while still all being engaged in litigation.

But some things are universal. Writing about what prosecutors do right, Mark points out the value of being polite.

But trial lawyers, students of human nature, know that rudeness is the weak person’s imitation of strength; the lawyer who is rude in court is seen as easier pickings than the lawyer with the self-assurance to treat others courteously. If a lawyer’s object is to settle reasonably those cases that can be settled, and try the rest, she’s much more likely to succeed with courtesy than with rudeness. I’ll gladly try a case against Antira Jones — I don’t expect it to be unpleasant — but I’m not looking for chances to do so.

This is just as true in Croydon Employment Tribunal as it is in a Houston Criminal Court. Polite and calm suggests confidence; rude and mindlessly aggressive does not.

Try to retain your good humour.

Litigation is stressful for most people and bad tempered advocates raise the stakes and make life more tiring for all concerned. All Judges (in the Employment Tribunal or elsewhere) dislike advocates who are quarrelsome and engage in petty spats during the hearing. We all know issues regarding disclosure or late exchange of witness statements etc etc can be really annoying but try to keep it professional.

If the point is serious enough, make the appropriate application. If not, move on. Don’t lose your temper.

If you have an active case, either as a representative, or a litigant in person, grab a pad of paper and try this exercise. It will probably take about 10 minutes.

Without looking at any papers, write down everything that the respondent did wrong. Try to write in short sentances, with one point per sentence.

For example:

• They didn’t let me bring my union rep to the meeting
• Nobody talked to Alice, who could have told them what happened
• Dismissal was much too harsh. I just lost my temper for a moment
• They didn’t let me ask Tom any questions during the meeting
• Bill shouldn’t have been the one running the appeal. He was involved in the original incident
• This sort of thing happened all the time, it was unfair to punish me but nobody else.

You will probably find that many of your points are connected. So group those together under general headings.

• The disciplinary process wasn’t run properly
• They didn’t let me bring my union rep to the meeting
• They didn’t let me ask Tom any questions during the meeting
• Bill shouldn’t have been the one running the appeal. He was involved in the original incident
• The investigation wasn’t good enough
• Nobody talked to Alice, who could have told them what happened
• Dismissal wasn’t a fair sanction
• Dismissal was much too harsh. I just lost my temper for a moment
• This sort of thing happened all the time, it was unfair to punish me but nobody else.

Now, rank these general points in order of importance.

1. Dismissal wasn’t a fair sanction
2. The investigation wasn’t good enough
3. The disciplinary process wasn’t run properly

This list is what your case is about.

A number of people have commented or emailed about “Do not submit” which recommended that advocates eliminate “I submit” from their vocabulary when addressing the tribunal.

Since the consensus is against me it might be worth setting out in more detail why I dislike it.

Firstly, it offends against the signal to noise principle. Submissions should contain as high a percentage of substance as possible. Anything that does not contribute to your argument should be removed. “I submit” adds nothing meaningful; the tribunal knows you are making submissions.

Secondly, there is a real risk of it becoming an annoying tick. Any phrase repeated often is likely to grate. Once you start saying “I submit” it is hard to know when to stop. After all, everything you say is a submission. Many people find themselves repeating in almost every paragraph they write or every minute as they speak. This has much the same impact as fingernails on a blackboard.

Finally, it puts distance between you and your submissions. It is not as bad as saying “My client’s instructions are to submit”, but the affect is similar. By saying “I submit” you are emphasising your formal role. This may be more comfortable for you the advocate, but it make it harder to communicate conviction.

Abigail makes the good point that “I submit” can be used to show respect for the tribunal. There are certainly moments when this is useful. Say that the tribunal is strongly against you on a point and the dialogue is beginning to descend into a wrangle, rather than a discussion. Using “I submit” might emphasise the formal roles and defuse the confrontation. In general, however, this should not be necessary. You must respect the tribunal, but this means begin polite to them and keeping in mind their judicial role (meaning that you recognise that they are in charge of the hearing). Formal phrases, be they “I submit” or “Respectfully…” do not add anything to this.

Does anyone else have any views?

Many lawyers write and say things like:

• In my submission, the employer failed to follow a fair procedure
• This, I submit, was an act of direct sex discrimination
• I am going to submit that this claim should be allowed in out of time.

All of these examples can be improved easily, by removing any reference to submissions. For example:

• The employer failed to follow a fair procedure
• This was an act of direct sex discrimination
• This claim should be allowed in out of time.

The second examples have the advantage of being shorter, clearer and more direct. This makes them more persuasive.

One of the things that will happen at a hearing is that you will be asked questions by the tribunal.

The best way of answering them is to be simple, concise and direct. In fact, this is really the only proper way of answering.

There are, however, any number of bad ways of answering. Here are some:

The Politician

Ms Smith, did you put your grievance in writing?

It was totally unreasonable the way they handled the problem. I never got invited to a meeting and nobody asked me about what had happened.

Any politician worth his salt knows that you don’t answer the question you were asked, you answer the one you’d like to have been asked.

This really doesn’t work in tribunals.

The Politician knows that his job is to get his message out to the public, regardless of the interviewer’s attempts to interfere. He doesn’t need or want, much less expect, to convince his interviewer of anything. He isn’t really talking to the interviewer at all.

In a hearing, you are trying to convince the tribunal of your case. You cannot do so by ducking their questions.

The Teenager

On a Monday morning in London Central…
Mr Smith, I’m surprised that this hasn’t been sorted out before this hearing. I see that an order was sent out some time ago.

Well, Sir, I’m afraid I was away when that letter arrived.

When did you first see it?

Last week.

When last week?

Monday

So you’ve know about it for 7 days?

It is a good general rule to deal with any bad news in a tribunal by getting it out and dealt with as quickly as possible. This is particularly true in the context of tribunal questions.

Everybody finds it annoying to receive evasive and partial answers to questions. And everybody finds it irritating to have to drag information out of someone piece by piece.

It is always worth assuming that your tribunal is clever and experienced. They have probably heard most, if not all, of the variations on the exchange above. And the Chair spent or spends his professional life cross-examining evasive witnesses. Partial and evasive answers will almost always be spotted for what they are.

The Boss

Mr Smith, can you tell us what you say about the s98A point?
I’ll be dealing with that point later in my submissions, Sir.

This is just counterproductive.

There are two reasons for this. Firstly, refusing to answer the question will probably annoy the tribunal. Nobody likes being ignored or rebuffed.

Secondly, if the tribunal is asking the question they are interested in the answer. It is much better to deal with the point while they are interested, rather than put them off.

It is also worth bearing in mind that the tribunal is in charge of the hearing. If they want to deal with a particular issue in a a particular way or at a particular time, then that is what will happen. Very occasionally it is worth fighting them (as politely as possible), but these situations are rare.

The Court of Appeal has commented on the proper use of skeleton arguments in Tombstone Ltd v Raja & Heals.

Although the case had nothing to do with employment law, the comments are relevant to skeleton arguments generally – in the EAT as well as the Court of Appeal.

The full comments of the Court are set out below. In summary, they warn against excessive length and make clear that skeleton arguments are intended as an aid to oral advocacy.

This is not straightforward. It is clear that in Tombstone itself the skeleton was too long. It is also true that a concise and focused argument will be more persuasive than a verbose one.

On the other hand, taking the guidance in Tombstone too much to heart is probably a mistake. In our experience, ‘skeleton’ arguments do now almost invariably amount to full written submissions capable of standing alone. Whether that’s a good thing is open to debate; but the reality is that the members of appellate courts will normally have read the skeletons and formed at least a provisional view before the hearing begins. That means you have to do a lot of the work of persuading them in your skeleton – especially as the chances are your opponent will have.

If some judges will bark at you for producing an excessively fleshy skeleton, others will raise an eyebrow if you try to say anything in oral submissions that isn’t covered in your skeleton – or, worse, make up their minds on the written material and then scarcely let you get a word in edgeways once you’re on your feet.

The key is to understand that a well written skeleton can make your whole argument, without becoming over long.

Lord Justice Mummery said:

122. We end this judgment with a criticism of the excessive length and complexity of Tombstone’s skeleton argument. It has 110 pages of text plus 64 pages of Appendices. Although its authors set out to assist the court, as well as the client, by a very thorough presentation of Tombstone’s case, it is sensible to set reasonable limits to its length.

123. Mr Onslow described it “as an extremely long document” for a case that, while unusual, was not unduly complex. The appeal was from a judgment of modest length (27 pages). It was very hard, he said, to see what justified such voluminous arguments. Most of the legal issues have been settled by existing authority. No primary findings of fact are challenged on the appeal. He added that, from Healys’ perspective, this had added to the length of their skeleton argument (56 pages), which they had tried to keep as short as possible. It had also added considerably to the cost and length of the appeal.

124. The length of Tombstone’s skeleton did not assist the court. In fact, it tended to detract from Tombstone’s case, which was accurately and far more succinctly stated by Mr Onslow in his written and oral responses to it. His team adopted the technique of briefly stating the points taken by Tombstone and then concisely commenting on them.

125. Practitioners who ignore practice directions on skeleton arguments (see CPR 52PD paras 5.10 “Each point should be stated as concisely as the nature of the case allows”) and do so without the imposition of any formal penalty are well advised to note the risk of the court’s negative reaction to unnecessarily long written submissions. The skeleton argument procedure was introduced to assist the court, as well as the parties, by improving preparations for, and the efficiency of, adversarial oral hearings, which remain central to this court’s public role.

126. We remind practitioners that skeleton arguments should not be prepared as verbatim scripts to be read out in public or as footnoted theses to be read in private. Good skeleton arguments are tools with practical uses: an agenda for the hearing, a summary of the main points, propositions and arguments to be developed orally, a useful way of noting citations and references, a convenient place for making cross references, a time-saving means of avoiding unnecessary dictation to the court and laborious and pointless note-taking by the court.

127. Skeleton arguments are aids to oral advocacy. They are not written briefs which are used in some jurisdictions as substitutes for oral advocacy. An unintended and unfortunate side effect of the growth in written advocacy (written opening and closing submissions and “speaking notes”, as well as skeleton arguments) has been that too many practitioners, at increased cost to their clients and diminishing assistance to the court, burden their opponents and the court with written briefs. They are anything but brief. The result is that there is no real saving of legal costs, or of precious hearing, reading and writing time. As has happened in this case, the opponent’s skeleton argument becomes longer and the judgment reflecting the lengthy written submissions tends to be longer than is really necessary to explain to the parties why they have won or lost an appeal.

128. The skeletal nature of written advocacy is in danger of being overlooked. In some cases we are weighed down by the skeleton arguments and when we dare to complain about the time they take up, we are sometimes told that we can read them “in our own time” after the hearing. In our judgment, this is not what appellate advocacy is about, or ought to be about, in this court.

We have previously advised against making faces and excessive throat clearing during tribunal hearings.

Add to this list ‘swaying’.

This involves shifting your weight from side to side, so that your body rocks from left to right to left and so on.

At best this is a distraction, at worse it may make people sea-sick. Fortunately, it’s rarely a problem in employment tribunals, where everyone sits down throughout the hearing. The danger is in the Employment Appeal Tribunal, where you stand up to speak. When it is your turn, stand up straight and plant your feet firmly. Then don’t move around. There is no need to remain rigidly at attention, but fidgeting will only distract from what you are saying.

Although this particular problem really only occurs in the EAT, the general rule is good in the tribunal as well. Avoid fidgeting; be it swaying or playing with elastic bands.