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.

If you have been knocking around the wonderful world of employment tribunals for a little while, you will have accumulated a few completed cases. It is worth, from time to time, pulling out these files and reading through them. In particular, take a look at the written work you did.

This tends to be quite humbling. You will almost certainly feel that, six months or a year ago, you were terribly green and that now you’d do much better. As well as being quite good for your soul, this helps you identify areas where you can improve further. If your old letters read as unbearably pompous, then that is something to watch out for in the here and now. If you tended to waffle on without making a clear point then redouble your efforts to be clear. Think about how you’d approach the old case now, and you’ll probably get useful insights.

You’ll also probably spot some good work, which you can re-use.

While you’re at it, look at what your opponent did, particularly if they were a professional representative. While the case was going on you probably reacted to their submissions with a little bit of attitude. A sort of general feeling of ‘What tosh, and also pish’. Once the case is over, and you are less involved, you are more likely to be objective. A good opponent is one of the very best people to learn from.

If you’re new to employment tribunal practice, it can be tempting to think that the person who matters is the legally qualified chairman who sits in the middle of the tribunal table and presides over the hearing, and to overlook the other two members (the ‘lay members’ as they are called). This is a mistake. The thing to remember about the lay members is that there are two of them. That is – to labour the point – twice as many as there are Chairmen. In other words, the lay members can, and sometimes do, outvote the Chairman.

So if you are giving evidence or making submissions, try to address your answers to all 3 members of the tribunal, and make occasional eye-contact with each of them. Try to make a mental note of their names. If you want to refer to a question asked by one of them of a witness, it will be awkward (and obvious) if you can’t remember their name – and they are likely to feel overlooked. And if a lay member asks a question that makes it clear that they have misunderstood the evidence or the law, don’t snub or patronise them – just explain.

Simon Myerson QC has written an excellent primer on advocacy. It is aimed at barristers at the start of their careers, but is useful for anyone who is going to appear in a court or tribunal.