Tagged: statement

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Reading witness statements aloud

Employment tribunals normally expect witnesses to read their statements aloud. If the statements are very short, there’s something to be said for this: it gives the witness an easy task to do while they settle in, and meanwhile everyone else can draw breath and shuffle their papers and remember who this witness is and where they fit in the story. Where the statements are long, it’s pretty mad – but it still often happens.

It’s helpful to know in advance roughly how long this will take, so it’s not a bad idea to run a word count once you’ve finished drafting your statement, and then put the total word count on the last page. The speed at which people read aloud varies, but 160 wpm is about the middle of the range – so for a rough estimate of the number of minutes the witness will spend reading aloud, divide the number of words by 160.

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Getting the most out of your adviser

Most of this blog (and the book it supports) is written for people who are either representing a client in the employment tribunal, or are representing themselves. The underlying assumption is that if you are a claimant in an employment tribunal case who has an adviser, you can leave running the case to them.

That assumption is not completely right of course. If you are getting free advice, the time your adviser can spend on your case will be limited by the other demands on her time – and demand for free legal advice vastly outstrips supply, so the chances are she’s rushed off her feet. If she’s representing you by way of Legal Help, she will be operating under grossly unrealistic time limits imposed by the Legal Services Commission. And if you’re paying for legal advice, the time your lawyer can spend on your case will be limited by your budget: lawyers charge by the hour.

Any which way, there will be a limit, and probably quite a tight one. Case preparation consumes time at a frightening rate, so if you do everything in your power to limit the time your adviser has to spend on non-essential tasks, or tasks that she is no better qualified than you to do, you will maximise the time she has available for the more difficult stuff.

Present the papers in the most helpful way you can

Read the advice on coping with a large pile of papers. Taking letters out of envelopes, removing staples and paperclips, sorting papers into chronological order, weeding out duplicates, photocopying and hole-punching are all easy tasks – but time-consuming. You’d think it mad to pay anyone £100 or more an hour to sort your laundry, but it is surprising how many people are prepared to pay their lawyers to put papers into chronological order.

Answer questions succinctly

Be as focused as possible in the information you give to your adviser, and the way you answer her questions. In ordinary conversation, a question is very often not so much a request for specific information as a polite cue whose purpose is to make space for you to talk for a bit. If it was your habit to behave in social situations like the ideal witness – just giving a succinct factual answer focused precisely on the question you were asked, and then stopping to wait for the next question – you’d soon stop getting invitations. But your lawyer’s questions are best treated in precisely that way.

Don’t ask your adviser for information you can easily find elsewhere

There are many sources of free information for people going through employment tribunal claims, so try to get the answers to your basic questions that way before paying your lawyer to tell you. A good start is to make full use of this blog – don’t just read the most recent posts: explore the index, have a look at the resources page and the glossary, visit the websites that we link to. You could also ask your local library to get a copy of the book (ask for Tamara Lewis’s Employment Law: an adviser’s handbook too, while you’re about it).

Do some of the work yourself

If you are trying to keep your legal costs down, don’t be shy to ask ‘Is that something I could do myself?’ or ‘Will it save time if I do a first draft?’ when your lawyer tells you that a particular piece of work needs doing. You will certainly save quite a lot of your adviser’s time if you write a good first draft of your witness statement.

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Bundling witness statements

Witness statement should not be put in the bundle of documents.

There is a theoretical justification for this, but the main reason is convenience. ((The theoretical justification is that witness statements are a form of examination in chief, not documentary evidence.))

Witnesses will often be referred to documents in the bundle and when making submissions about witness evidence you will often move from the statement to the documents it talks about.

If the documents and statements are in the same bundle this involves a lot of flipping back and forth. Much easier to be able to keep the statement open in front of you while thumbing through the documents.

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‘Said’ is not a rude word

If you want to say in a witness statement that someone said something, just say that they said it.

Those who draft witness statements often get hung up on this – possibly because they have been taught that it is bad style to keep using the same word in a piece of writing. There is something in that rule, but you have to use your judgment (and your ear) about when to follow it. In particular, it simply doesn’t apply to ‘said.’ The reader won’t notice ‘said’ any more than ‘the’, ‘or’, ‘and’, ‘has’ etc – it doesn’t hook the attention, but just imperceptibly feeds the reader some information about who was speaking. On the other hand, if you keep repeating ‘confirmed’ or ‘indicated’ in your statement, it will sound very wooden.

So avoid the following expressions, and similar:

‘Expressed that,’ which is clumsy, and grammatically dubious – you normally express something: admiration, disapproval, a wish, an objection etc.

‘Indicated,’ which provides less clarity than ‘said’ in an extra 3 syllables. ‘Mary Jane indicated that she did not like rice pudding’ does not tell us whether whether she said politely, ‘I won’t thanks, I’ve never liked rice pudding,’ or pulled a face, or took a spoonful and then spat it out – or lay on the floor kicking and screaming.

‘Verbally indicated,’ which uses the 4 syllables of ‘indicated’ to introduce unnecessary uncertainty about how it was indicated; and then takes another 3 syllables (‘verbally’) to clear up that uncertainty.

‘Confirmed,’ which is fine if what you mean is that the speaker made definite something that had previously appeared uncertain; but otherwise ‘said’ is more accurate.

‘Shared,’ because it won’t help your case to make the tribunal feel queasy.

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Show, don’t tell

This is advice often give to aspiring novelists. The idea is that your story will be more vivid if you let the characters of the people you are writing about emerge from their actions than if you just describe what they are like. (There’s a much fuller explanation on Wikipedia.) ‘Actions speak louder than words’ expresses much the same idea.

When you write your witness statement, you are telling a story. Unlike a novel, your statement must be true. But ‘show, don’t tell’ is still good advice. Don’t say “Miss Claverham behaved disgracefully by doing so-and-so… ” or “It showed how Miss Claverham always wanted to put me down when she said… ” Just say what she did, and what she said. The tribunal will have to decide for itself what it thinks her behaviour demonstrated, and whether it was disgraceful – or, more to the point, unlawful. Your account will have more impact if you resist the temptation to load it down with judgment and comment of your own.

As with most rules, there will be exceptions. If you are claiming compensation for injury to feelings in a discrimination case, you will have to say how the discrimination has made you feel. Sometimes it is just too time-consuming to show: if, for example, a judgment about someone’s character is part of the background to you story, but not a central part of what you have to prove in order to succeed in your claim, you may want to say “Everyone found Miss Claverham difficult and demanding, and none of the secretaries wanted to work for her” instead of taking several pages to describe sufficient instances of her behaviour to allow the tribunal to see what she was like.

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Exchanging witness statements in a hurry

In an ideal world, witness statements would be ready days, if not weeks, before they had to be exchanged. There would even be lots of time for tweaking, polishing and general fiddling with them, to make sure they were absolutely perfect.

In the real world, witness statements often have to be prepared quickly.

Even when you are in a rush it is important to make sure that the statement is complete and accurate. In particular, advisors must always make sure that their client has read and agreed the statement before it is exchanged.

If you are really rushed there are ways of cutting corners, without causing problems.

Exchange unsigned statements

It is often easier to get confirmation that a statement is okay than it is to get a signed copy from the client. There is nothing wrong with exchanging unsigned statements. It is simply a myth that statements must be signed before they are exchanged.

Leave page numbers blank

Sometimes you will need to exchange statements before the agreed bundle has been finalised. If this happens it is normally sensible to leave space to insert page numbers later. This allows you to exchange on time, but still provide the tribunal with a copy with cross-references to the bundle of documents.

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Exchange of witness statements etc.

Employment tribunals tend to order that witness statements are to be ‘exchanged’ on a certain date. What is implicit in this is that there will be simultaneous exchange, so that neither party gets a preview of the other side’s statements before it writes its own. For this reason it is normal to agree with the other side to exchange by fax or email at a particular time of day. If you feel anxious about this, you may want to telephone the respondent or its adviser when that time comes to check that they are ready to exchange. The only way to be completely sure of simultaneous exchange is to agree to exchange at a meeting, but this is rarely if ever done – it is too inconvenient, and the advantage in seeing the other side’s witness statements before you write your own is minor anyway.

Written submissions may be treated the same way, although some tribunals will order written submissions to be dealt with in sequence, in the order that oral submissions would be made. Simultaneous exchange of submissions is even less important than simultaneous exchange of statements, because by the time submissions are drafted, all the evidence has been given and the issues should be clear. Each side will already have a pretty good idea what the other is going to say.

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Witness statements

It is usually important – and always desirable – for the tribunal to have a clear idea what it was that the claimant was employed to do. This can be surprisingly difficult: people tend to assume that their job title is sufficient information. If the job title is ‘French teacher’ or ‘train driver,’ they are probably right. If it is ‘External Account Manager’ or ‘Director of Operations,’ it will need some explanation. Some witnesses, asked what their job involved, will make noises like ‘I was responsible for all operational aspects of the company’s third and fourth tier ventures,’ and find it hard to grasp that this is not intelligible. It is important, when drafting a witness statement, to persist until you know what the claimant was employed to do and why it mattered, and then write that down in the witness statement in a way that will make the tribunal understand it too. Ultimately it may be necessary to ask questions like: ‘Tell me about your typical working day. You arrive at the office, make a cup of tea, sit down at your desk, check your email – what do you do next?’ or even (in desperation) ‘What would happen if your job didn’t get done? Why would it matter?’