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.

This is just a bit of useful psychology. We all tend to bridle slightly when told that we have no choice. So saying to the tribunal:

• You must postpone this hearing.
• You have no choice, but to order these documents be disclosed
• It is impossible not to make a finding of unfair dismissal

is likely to put their back up to no good purpose. Human nature means that their first thought may well be “Oh I can’t, can’t I?”

It is possible to go too far the other way. It is no good submitting that, just possibly, the tribunal might feel that the hearing could usefully be postponed, but obviously it’s up to them. This does not carry conviction.

The way round this is just to say what you want simply. This is one of the rare occasions when the passive tense is useful.

• The hearing should be postponed.
• These documents should be disclosed
• Mr Jones has been unfairly dismissed

This tells the tribunal what you want, with conviction, without suggesting they have no choice.

Occasionally, you may end up in a situation where you really do have to tell a tribunal that something is impossible. For example, if the respondent wants to make a counter-claim, but you have not raised a breach of contract claim, they are not allowed to do so by the rules. The tribunal really does not have a choice.

Obviously, in that situation you must tell the tribunal so. But, again, it is sensible to do so tactfully. For example, saying “the rules do not permit counterclaims, unless the claimant has raised a contractual dispute” is better than saying “you cannot hear a counterclaim in this case”.

Litigants and new lawyers are often troubled by the vast number of different situations that arise in the process of litigation.

It is helpful to remember that, really, there are only a handful of different situations, just an infinite number of slight variations.

One of the most common is asking the tribunal to do or order something. This might be ordering a document be disclosed; a question answered; a hearing postponed or a witness ordered to attend. But all these situations follow a common pattern. What follows is a standard template for applying for almost anything.

Opening formalities

Start with the obvious. Write the tribunal’s address and the date, just as you would in any letter.

You will also need to include the case number and, if you work for an organisation, any internal reference of yours.

Then open with a salutation. “Dear Sir or Madam” is standard.

It is common to then title the document. This should contain the party names; the nature of the application and, if the application is urgent, the word urgent. For example:

URGENT: Smith v Jones – application to postpone

Do not say the application is urgent unless it is. Don’t start off on the wrong foot by fibbing.

Guidance for dealing with the application

In nine cases out of ten, this is a standard piece of rubric:

I would be grateful if you would put the following application before a Judge.

If there is something unusual about the way in which the application should be dealt with, this is the place to mention it. For example, if a particular Judge is dealing with the case, you should ask the application to go before him. Similarly, if you are putting the application in writing, but expect it to be dealt with at an upcoming hearing, it is sensible to say so.

Bear in mind, however, that you cannot control how the tribunal deals with your application. That is up to them. You can only make a request or suggestion.

If you have said your application is urgent this is the place to explain why.

What you are asking for

At this point, say what it is that you are asking the tribunal to do.

The tribunal’s authority

Then indicate why the tribunal is able to do what you ask.

This is often unnecessary. Orders for discovery, or to postpone, are so routine that no issue is likely to arise about the tribunal’s powers. But if your application is more unusual, it is sensible to make it clear where the tribunal’s power comes from.

Why the tribunal should do it

This is likely to be the longest section. Write down all the reasons that the tribunal should do what you ask.

This section will often also include a discussion of what legal test the tribunal should use to decide the application. For example, if you are making an application to amend the claim. You might set out the guidance in Selkent about when such applications should be granted. Then explain why you meet that test.

Closing formalities

The tribunal rules require that all applications explain how the order will “assist the tribunal or chairman in dealing with the proceedings efficiently and fairly”. This should have been covered in your explanation for why the tribunal should do what you want. But it is conventional to state it explicity by writing something like:

For the reasons set out above, [this order] will assist the tribunal in dealing with the case efficiently and fairly.

The rules also require that you set out the otherside’s right to respond to the application:

This letter is copied to the respondent. The Respondent should not that if it objects to the application, it must write to the tribunal within seven days of receiving this letter, or before the date of the hearing (whichever date is the earlier) explaining the reasons for its objection , and should copy that letter to me. Rule 11 of the Procedural Rules has been complied with in relation to this application.

Note that there is an exception to this rule. If you are applying for a witness order, you do not have to inform the other side (although you can if you want).

Finally, sign the letter and post / fax / email it to the tribunal (and the respondent).

Oral applications

Applications at a hearing follow a very similar pattern. Say what you want and why the tribunal should agree.

Or, in English, the time you spend on an issue in tribunal should be proportional to the importance of the issue and its complexity.

The amount of time you spend on something will send a message to the tribunal. The more time you spend on a point the more important you suggest that it is.

So, all else being equal, you should spend the most time on your important points.

However, all else is not equal and you will have to take account of how complex your points are. A difficult issue takes more time to deal with. And if what you have to say is short and simple it does no good (and normally does harm) to keep talking once you’ve made the point.

It is sometimes worth flagging up exceptions to the general rule. For example you might say “Sir, my next point is really the key to this case, but it’s a simple point and I will be brief.” Similarly, you might say “Madam, the contractual point is rather difficult and I’m afraid I’m going to have to spend rather a lot of time on it.”

Update: A reader points out that, arguably, the equation should be importance multiplied by difficulty; rather than importance divided by difficulty. This is correct – unless difficulty is expressed as a number greater than zero but equal or less than 1. This may be a post event rationalisation, but it preserves the original formula.

Simon Myerson Q.C., who writes at Pupillage and how to get it, has been talking about self-criticism.

Although he’s speaking mostly in the context of interviews for pupillage (the final stage of a barrister’s training), his advice is good and much more widely applicable.

This is an issue I used to force under my own pupils’ noses. If you lose a case, the temptation is to blame your client, your opponent, the witnesses and the Judge. It may all be true. But 99.9% of the time there is something which you could have done to make a difference. People who are going to be good barristers cannot afford to be frightened of the process of self-criticism which identifies what that is.

This is a very good habit to get into. You’re not perfect, and you’re never going to be – because no-one is – but the way to improve is to identify some of your imperfections and do your best to fix them. This will not make you perfect, but it will make you better.

As Simon acknowledges, this is not a comfortable process. The best way of dealing with that is to make it a routine. At the end of every case, just spend five minutes thinking about whether you made any mistakes and whether you should do anything differently next time.

How you do this is a very personal thing. You might want to keep a diary, or talk about it with someone you trust, or just make a mental note on the train home. You might even start a blog.

There are a few warnings about this.

First, remember that you can only do one thing at a time. Trying to analyse your performance during a hearing is rarely a good idea. You will be far too close to it to draw sensible conclusions, much less implement them. You will just end up making yourself more stressed.

This is subtly different to seeing how a case is going and adjusting accordingly. Broadly, if you are planning what to do next, you’re okay. If you are beating yourself up about what you have already done, you need to get your head back in the game.

Secondly, remember the making mistakes or being less than perfect is not the same as professional negligence. Negligence – in very broad terms – is making a serious and stupid mistake, which means you have failed in your duty to your client. There is sometimes a tendency, both in clients and lawyers, to regard all imperfections as negligent. This is just not the case.

Of course, this post is aimed at people who are, or who want to be, professional representatives, and can be assumed to want to get as good at the job as it is in them to be. If you are a litigant in person you want to win your case. If you catch yourself wanting to become a better litigant long-term, find another hobby – fast.

Tribunals will often ask you whether you agree with a particular formulation of a point, as a way of checking they understand the issue.

For example, a Judge may ask:

Mr Reed, as I understand this you accept that there was no breach of the statutory dismissal procedures, but say that the hearing was procedurally unfair. Is that right?

This is often a good thing. It allows the tribunal to check that they understand you and you know that they have understood. Also, particularly if you are not a lawyer, the tribunal may well be able to provide a legal formulation for your point better than you can.

The risk, however, is that you will get pressured into agreeing to something that you don’t actually mean. Sometimes this happens because a frustrated judge will put the question rather testily, flustering you. But often the pressurised nature of tribunal procedings will lead you into something that chess players call an unforced error. The Judge asks something that sounds sort of right and you say ‘yes’ without fully understanding what you’re doing.

There are two things you should do to avoid this. Firstly, know your case as well as you can. The better grip you have on the facts and law, the less likely you are to make this sort of mistake.

Secondly, when you are asked a question think about the answer. Take a deep breath and one second to reflect. Then answer. If you don’t understand, say so and ask the Judge to clarify the question.

Some litigants and lawyers act and write as if they’re just a little over caffeinated.

When they object to something they do so ‘firmly’ or ‘vigorously’. When they make submissions they do so ‘passionately’ or ‘strenuously’. They have made ‘heroic’ or ‘valiant’ efforts to comply with the tribunal’s orders.

A little calm goes a long way and is normally more convincing. Quite possibly the only bit of legal advice you should take from Tom Cruise’s character in A Few Good Men is his line on strenuous objections.

“I strenuously object?” Is that how it works? Hm? “Objection.” “Overruled.” “Oh, no, no, no. No, I STRENUOUSLY object.” “Oh. Well, if you strenuously object then I should take some time to reconsider.”

If you do need to emphasise the seriousness of something it is better to explain why it is serious than tell the tribunal it is.

For example, say that the respondent has been uncooperative in producing witness statements. To make clear that you have done everything you could you might say:

On the 1st May I rang Ms Jones to discuss exchange of witness statements. I was not able to reach her and left a message. On the 2nd May I rang again. I spoke to her secretary and was told that Ms Jones would ring me back that afternoon. She did not.

The following Tuesday, the 6th, I rang again. This time I reached Ms Jones. She told me that she could not speak to me at the moment. I said that I would send her an email. I sent one later that day. I reminded her that there had been an order to exchange statements on the 7th. I asked her to confirm that they were in a position to do. I suggested that we do so either by fax or email. I included my details and asked her to suggest a convenient time.

I did not get a reply and could not reach her, or her secretary, by phone on the 7th.

I then wrote a letter, pointing out that the deadline for exchange had passed and asking her to contact me urgently. I sent this by recorded delivery, which confirmed it was received on the 8th. I also sent it by email. I did not get a reply.

I made more phone calls on the 8th, 9th, 13th and 15th. Each time I left a message, but these were not returned.

This is far more convincing that any number of ‘strenuously’s.

Often, in written submission or oral advocacy, you will need to quote from another text. It might be a document from the bundle or from a piece of case-law.

Most documents will be far too long to quote in full. You should trim them to what is relevant and useful. After all, the full document or case will also be available to the tribunal.

What you must not do, however, is selectively quote to give a misleading impression.

For example, an EAT case may say something like:

Such and such is an attractive and powerful argument.

This is a great quote if you want to argue that ‘such and such’ is true.

If, however, the court then went on to say:

Having carefully examined it, however, we have concluded that it is completely wrong

You absolutely must not quote the first paragraph, but leave out the second. Not only is it dishonest, it will not work. Your panel was not born yesterday. And one of the most effective submissions in a tribunal is one that begins “Let me read you the paragraph just after the one my colleague referred to, so we can look at what he left out”.

Unfortunately, while dishonesty is simple to avoid, it is surprisingly easy to do this accidently.

Many judgments, for example, set out a general rule, but then go on to discuss the limits of that rule or circumstances where it does not apply. It is easy to focus on the general rule, and miss what comes after.

This is something to be alert to. If there is a slight reversal of the quote you want to use, it is much better to deal with it up front. For example:

This rule was set out by the EAT in Smith v Jones at paragraph 17:

“…quote…”

The tribunal went on to discuss circumstances in which this rule should not be applied:

“…quote…”

For the following reasons, these exceptions do not apply here…

By identifying and dealing with the point you have secured two advantages. Firstly, there is no possibility that the tribunal will think you were shading the truth. This disarms a potentially dangerous attack from the other side.

Secondly, you have dealt with the point on your own terms. If you allow it to be raised by the other side you will be on the defensive. By raising it yourself, you get the chance to discuss it before your opponent; frame the issue and get your retaliation in first.