If you are represented in tribunal, you will often need to communicate with your representative. A lot of the time this can be done by discreet whisper. But this is impossible when your representative is in the middle of cross-examination or submissions. Then the usual method is passing them a note.
Notes from your client during the hearing can be very helpful – but too many can feel like sabotage. So it is worth some thought. Advisers can help themselves by discussing this issue before the hearing.
The tension is between providing useful information, and distracting your representative. They are doing something difficult and complex that requires their full attention. If you interrupt a lot you will break their train of thought, and pile on the stress. The result will be to make them less effective. On the other hand, you may have information or insight that will make all the difference.
The key is to know when to intervene and how.
Bear in mind what you representative already knows. Imagine that you have a wages case, and you say that your employer, Mr Smith, promised you a 5% raise from January 2008. If Mr Smith gives evidence that such a conversation never happened, there is no point in passing a note saying “He’s lying”. Your representative knows that he is, and will be busy trying to prove it.
On the other hand, Mr Smith may say something like “I wouldn’t have discussed that sort of thing. I left that all to Ms Jones, the store manager”. You may know that Ms Jones was on her honeymoon during January, while your representative does not. In that case a note letting him know will give him some valuable ammunition.
It is rarely sensible to try to give general advice about how to do something. For example, you may think that it would be better if your representative dealt with matters in a different order than he is doing. But it will be quite impossible for you to explain why and for your representative to change course during his submissions. Trying to do so will just distract him.
Bear in mind that you only have partial knowledge of what your representative is thinking. If he does not seem to be addressing a point, it is possible that he’s unaware of it, or has forgotten it. But it’s also possible that he’s spotted a problem with the point that you haven’t, or noticed that a tribunal member was reacting badly to it; or even that he thinks it’s such a good point that he’s postponing it to the end of his submissions or cross-examination where it will have most impact.
Try to take some account of how important a point is. What you’re trying to achieve by intervening is to make your adviser’s cross-examination or submissions more effective. Will the benefit be worth the cost in terms of distraction? Can your point wait until the next break?
Write short notes. This is important for two reasons. First, your representative will find it easier to understand and use a short note, rather than a long one. Secondly, you want to finish your note before he moves on. Even the best point will be less telling if your representative has backtrack to a point he left five minutes ago.
Write legibly. This is a good moment for large round primary schoolteacher writing – even if in fact you are a doctor.
Don’t shout. In other words – DON’T WRITE IN CAPITALS. It is surprising how much more distracting and stressful it is to receive a note written in capitals, because it does feel as if you are being shouted at.
Be prepared. Bring a pack of post-its or small pieces of paper so that you have something to write on that can be easily passed across – a lot of noisy ripping of pages won’t assist your representative’s concentration either.
Another way of dealing with this sort of issue is to agree that, at the end of cross-examination or submissions, your representative will check with you whether there is anything else that need to be covered. This allows you to deal with issues in a more organised way. If you do this, it is sensible to keep a running note of issues that you might need to raise. But be brief: while the tribunal will be happy to let you have quick whisper, they will not normally allow a prolonged conversation.
Finally: don’t take it personally if your adviser reacts quite shortly to your interventions. Under the pressure of a hearing, there often just isn’t time for the standards of courtesy you’d expect normally, and communication is likely to be reduced to the bare essentials. It doesn’t mean your adviser is irritated: it just means they’re in a situation where they have to grab the bits of information they need from you and then shut you up.