A telephone conversation, overheard in the FRU office, several years ago:

Mr Smith, you’ve told me what happened. It seems to me that basically you’re saying that your ex-boss is a bit of a git.

Now, I’ve heard what you’ve got to say, and I’ve read the documents. You know what? I agree. He is a bit of a git.

So, what’s going to happen next, is that we’ll turn up to the tribunal on Monday and they’ll hear the case. And I bet they’ll think he’s a bit of a git too.

The problem, Mr Smith, is that being a bit of a git isn’t actually against the law.

The moral of the story is that tribunals are there to decide whether the respondent has broken the law, not to make general judgements about the parties involved.

Often litigants (on both sides) will spend a lot of time and effort throwing mud at each other about their business practices; quality of work; management decisions; criminal records; sexual morality and even personal hygiene.

Sometimes this is relevant. A capacity case, for example will often revolve around the claimant’s competence in their job. And if the claimant’s case is that the problems had been caused by inadequate support by his management their decisions will need to be examined. In a whistle-blowing case you may spend a good deal of time considering the respondent’s efforts to avoid their obligations to Her Majesties Revenue and Customs or the Health and Safety Executive.

Even if it is not strictly speaking relevant, mud slinging can be effective. A tribunal who feels that one side has been hard done by or mistreated is likely to be influenced by that impression. Trying to make yourself look good at the expense of the other side is part of the game.

But the old adage about it being hard to throw mud without getting some of it on you applies. Irrelevant accusations or criticisms will almost always do you more harm than good. Making accusations without evidence makes you look paranoid.

In general, therefore, it is sensible to keep all blows above the belt. Always remember that your aim is to prove your case, not prove that your opponent is a bad sort.

Suppose that in the course of the hearing your client realises that an important answer given by one of the respondent’s witnesses can be proved wrong by a document that she has at home, but that she has not previously shown you or mentioned. She goes home and looks out the document and brings it the next day. When you look at it, you think it is extremely helpful to her case.

What do you do? Can you use this document?

The first thing to note is that if the document is relevant, it ought to have been disclosed to the other side before the hearing began and included in the bundle. It has to be disclosed now, so give a copy to the other side’s representative, with apologies for not having disclosed it earlier, at the first opportunity. Don’t make excuses at this point, but find out from your client why the document was overlooked previously so that you can be ready with your explanation for late disclosure in case the tribunal asks you.

The next thing is to decide how to deal with the new document in evidence. If the witness in question is still giving evidence, you should just be able to show him a copy of the document and ask him questions about it.

If the witness in question has finished his evidence, you may wish to have him recalled so that you can ask some further questions. Tread carefully at this point, though, and be ready for a tussle with the tribunal: the Chairman will not be keen to bring witnesses back after their evidence has apparently finished. You are on the moral low ground to the extent that the document should have been disclosed earlier. If there is any risk that recalling the witness will extend the hearing so that it needs an additional day, think hard about how important it is to be able to ask him about this document. Can another of the respondent’s witnesses sensibly be asked to confirm that, in light of this document, his evidence must have been mistaken? If the hearing is extended because you insist on recalling a witness to deal with a document that your side should really have disclosed earlier, you are likely to face a costs application.

Similar considerations apply if your client produces a document that she says proves she is right on an issue she was given a hard time about in cross-examination. You may want to recall her after the end of her evidence to explain the document, but avoid this if you can: you may be able to make your point about the document just as well, if the respondent’s evidence is yet to come, by cross-examining one of their witnesses about it.

There is a strict rule that a witness who has started giving her evidence must not speak to anyone else about the case until her evidence has finished. Very often there will be a short morning or afternoon break or a lunch break, or even an overnight adjournment, in the course of one particular witness’s evidence. If this happens to you, in theory you can spend the time with your own side as long as you keep conversation to other topics. In practice, everyone’s head will be full of the case and it will be extremely difficult to think of anything else to talk about; much the best course is simply to avoid witnesses and advisers on your side completely until you have finished your evidence.

A common error when dealing with expert reports is to ask questions that are too general.

This normally occurs in two ways. Firstly, instead of asking questions about the client, the adviser asks, in general terms, about the situation that the client is in. For example, rather than ask about the client’s depression, the adviser asks for general information about depression and its effects. This is unhelpful. The tribunal’s interest is in how depression effects the claimant specifically, not in how it might affect other people.

Secondly, instead of asking questions addressed to the issues in the case, the adviser asks, in general terms, about the client’s condition. For example, the adviser might ask “For an opinion on Ms Jones’ depression”. This may, or may not, provide a useful report. A series of specific questions focused on the relevant legal test is far more likely to result in useful evidence.

Text messages create particular evidential problems, because unlike emails and Instant Messenger conversations they cannot normally be printed out. This makes it difficult to present them in evidence.

The tribunal will not be impressed by being presented with a phone and asked to scroll through the messages.

The sensible course is to transcribe the messages onto a single document, with details of date, time, sender and recipient; then agree this with the respondent. If the respondent refuses to agree, the transcript and the phone can then be passed to the tribunal to confirm the accuracy of the record.