by Naomi Cunningham & Michael Reed
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:
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?”
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.
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.
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.
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.
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.
Written submissions are a useful advocacy tool, but it is not always clear when they should be used.
This is an area where personal style and preference matter quite a lot. Both authors use written submissions a lot. Other advocates use them less. But, bearing that in mind, here are some guidelines:
Courtroom dramas are filled with beautiful people who, at the slightest provocation, leap to their feet to shout “I object”.
Of course, real life in the employment tribunals is not like this. But a lot of litigation is similar. One side will want to do something, or do it in a particular way, while the other side tries to stop them.
A lot of these arguments are important. Many are not. But people (and lawyers are some of the worse) often fall into the trap of objecting to everything the other side tries to do.
This is foolish for several reasons.
When writing or speaking to the employment tribunal it is very useful to ‘signpost’ what you are going to say. The aim is to give…
