What do you wish someone had told you when you were a beginner?

• Don’t feel you need to go on and on to keep your client happy; the shorter the better.
• Watch the judge’s pen and don’t race ahead.
• Be the honest guide of the tribunal.
• Don’t be too expressive; don’t slouch, don’t yawn.
• Be nice to opponents; nothing is to be gained by hostility inside or outside the tribunal.
• It’s often quicker to fight a case than settle it.

What do you think beginners do wrong most often?

They fail to structure the argument sufficiently well. Think carefully about structure of your arguments; the structure sometimes wins a case; it will certainly assist if you have a good logical order to your presentation and tell the tribunal at the outset what you are going to deal with.

Completing your ET1

The ET1 is the form you complete when you begin your claim. It sets out the reasons you are complaining to the Tribunal. So in an unfair dismissal case, you must explain why you think your dismissal was unfair; in a discrimination claim, you must explain the incidents you believe amount to discrimination.

This seems straightforward enough. But there are two common mistakes. The first is to give too much detail, in an unstructured form, so that key facts get buried. This makes it difficult for the Tribunal to work out exactly what you say happened. In contrast the employer normally submits a carefully structured ET3, with legal help, which concentrates on the facts the employer thinks are important and presents them in the way most helpful to its case.

The Tribunal judges normally read the ET1 and ET3 just before they begin the case, but not very long before. In the short time available, they may be drawn to the employer’s comprehensible, coherent and legally persuasive account rather than your rambling 20 page ET1. And this is means you start the case on the back foot, having to convince the Tribunal that you have a good case.

The second risk is that you miss out important facts because you don’t realise that the Tribunal will want to know them. If you try and raise these facts later, the employer’s representative may suggest that you made them up, in order to strengthen your claim.

So, unless the issue is very straightforward – such as being racially abused by your boss – it is worth getting some legal help at this early stage if you can. There are various sources of free advice (see Getting Advice); or if you can afford it, you might want to pay an employment lawyer for a few hours’ work.

Cross-examination

It is vitally important to have a plan of all the points you need to cover when questioning a witness. You will usually have page numbers of documents you need to refer to along side each point. I tick each point off as it is covered.

I think that it is best not to have a script. You should listen carefully to the answers you are given because frequently you will then “piggy back”, and ask questions on the back of the answer you have just received.

You need to make sure that you put to the witness all the disputes of fact – even if you are sure they are just going to deny what you ask. (Preferably without saying “I put it to you…”) But remember, while you must give them the chance to deny it, you should try not to give them the chance to re-state their version – ask closed questions.

Finally, it is important to bear in mind that to “cross examine” is not to “examine crossly”!

What did you find out the hard way?

I found out something I already knew but decided to ignore. Simply do not ask a question you are not reasonably sure of the answer to!

I was involved in a lengthy discrimination claim acting for the Claimant. A key issue was the recollection of one of the Respondent’s witnesses in relation to a meeting that had taken place some 2.5 years previously. There were no notes of the meeting and under cross examination the Respondent’s witness accepted that he had not taken any notes of the meeting . The level of detail given by the Respondent’s witness of the meeting was stark in its depth and precision. I suggested to the witness that he could not possibly have that level of recall.

Nothing wrong with that question. If only I had left it there. When he said that he did have that level of recall I asked him to recount the first question I had asked him during cross examination. We were, by this stage, 15 minutes into the cross examination. He responded by recounting word for word, in the correct order, what I had said including the mistake I made in turning to a bundle page number and the tribunal member’s interjection confirming the bundle page number and then proceeded to recount my subsequent question before I had to stop him and move on. He had a photographic memory and as far as his recollection of the meeting 2.5 years previously was concerned the issue was clearly against the Claimant and need not have been. Very painful at the time.

A few words on witness statements

Tribunals nowadays always expect witnesses to have written statements. Sometimes these are very long, sometimes very short. There are a few basic tips for all lengths:

1. Never use less than 12 point typeface – you will only irritate the tribunal if the statement is in tiny print. And double spacing may not save trees, but it allows room for the tribunal members to make notes, and it’s easier to read.
2. Always, always, always number the paragraphs. If you don’t know why, you will find out if you turn up to the hearing with several pages of statements with the paragraphs not numbered.
3. Statements are meant to contain evidence – that is, information known to the witness, directly if possible. If the information comes from someone else, it is hearsay, which is admissible in tribunals but doesn’t carry as much weight as if it was being confirmed by the person with the direct knowledge.
4. Don’t pad out your witness statements with arguments about the merits of your case. But on the other hand do make sure the statement covers all the relevant points the witness can cover. It reduces the credibility of evidence if it only emerges part way through the hearing and wasn’t mentioned in the witness statement. It is difficult to know what is relevant, and understandable if you err on the side of incuding too much, but think in terms of what points you have to show to make out the case – and don’t forget what you have to show to get the maximum compensation you can justify (if you are the claimant) or points that will reduce compensation (if you are the respondent).
5. Tribunals are not mind readers. They will only be able to take into account the evidence you give them, either through witnesses or in documents they are asked to read. They will probably not understand the jargon or abbreviations used in the particular industry the case is about, and cetrtainly won’t know who Joe Bloggs is, unless someone tells them. Put explanations of this kind of point in the witness statements – it saves the tribunal having to ask.
6. It is tempting to gloss over awkward facts, or simply leave them out. Bad idea. When the full picture comes out – as it nearly always does – it just makes the rest of the witness’s evidence less believable.

We are delighted to announce a series of guest posts from prominent employment lawyers we have persuaded to write contributions for us.

The series begins today with Jennifer Eady QC, and will continue on Tuesdays for as long as the contributions keep coming.