Tagged: advocacy

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Ignore the soft fruit

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.

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Intensifiers, don’t

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.

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Pet phrases

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.

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Preparing cross-examination

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.

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Using their documents / authorities against them

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.

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To be assessed by the tribunal

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.

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Begging the question

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’.

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Speaking in exclamation marks!

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.

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Referring to numbers

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.

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The more things change…

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.