One of the difficult things about running a tribunal case for the first time is the uncertainty about what needs to be done before the hearing. The first step – putting in your ET1 – is fairly obvious, but after that it is easy to get overwhelmed.

If the tribunal has made detailed case management orders, this makes things simpler. If you follow them, you should do most of what you need.

Otherwise, it is worth remembering that there are three main things you need to sort out before you reach the tribunal. This is a gross simplification, but it is worth bearing in mind if you are uncertain what to do next.

Documents

When the hearing starts you want to have an agreed bundle of documents, containing all the relevant evidence.

Normally, this means you need to do two things: discovering and bundling.

Discovery is the process of figuring out what documents you have; then asking the respondent for documents they have, and getting a tribunal order if necessary.

Bundling is the process of drawing up an index of the relevant documents (not the same thing as all the documents), putting them in chronological order and paginating them. Paginate is a fancy lawyer’s term for writing page numbers on them. Then you have to agree the bundle with the respondent.

Witness Statements

All of the people who are going to give evidence should have prepared a witness statement and these should be exchanged with the respondent.

Know what you are going to say

Basically, you need to be ready to do two things: cross-examine witnesses and make submissions.

What this will involve will vary from case to case. An experienced advocate, dealing with a simple case, might just jot a few points on a sheet of paper. On the other hand, in a complicated case, or if it will be your first time in a tribunal, you will want to do a lot more.

A good starting point is a list of issues the tribunal will need to decide. Once you have that, you can expand it into a list of things you want to ask each witness about and another list of areas you need to address in submissions.

Detailed lists of questions get a bad press in legal circles. The potential disadvantage is that they may turn you into a robot – asking one question after another in a monotone, paying no attention to what the witness says. But this can be avoided with a little care and attention.

The advantage of detailed lists of questions is that they make sure you do not miss anything and allow you to plan, in detail, the order and approach of your questions. For beginners, this is particularly valuable.

You should also consider written submissions. In complicated cases, these are almost vital. In a simple case, the tribunal will get much less advantage from them. But this does not mean they are not useful. By writing down, in full, what you want to say, you will make sure you have the issues, the evidence and your arguments thoroughly worked out.

Unfortunately, you will normally not be able to complete your written submissions before the hearing starts. This is because you will not know what evidence is going to come out during the hearing. The best approach is to leave gaps in your submissions, where this evidence can be slotted in later.

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.

When

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?

How

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.

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:

• You must postpone this hearing.
• You have no choice, but to order these documents be disclosed
• It is impossible not to make a finding of unfair dismissal

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?”

It is possible to go too far the other way. It is no good submitting that, just possibly, the tribunal might feel that the hearing could usefully be postponed, but obviously it’s up to them. This does not carry conviction.

The way round this is just to say what you want simply. This is one of the rare occasions when the passive tense is useful.

• The hearing should be postponed.
• These documents should be disclosed
• Mr Jones has been unfairly dismissed

This tells the tribunal what you want, with conviction, without suggesting they have no choice.

Occasionally, you may end up in a situation where you really do have to tell a tribunal that something is impossible. For example, if the respondent wants to make a counter-claim, but you have not raised a breach of contract claim, they are not allowed to do so by the rules. The tribunal really does not have a choice.

Obviously, in that situation you must tell the tribunal so. But, again, it is sensible to do so tactfully. For example, saying “the rules do not permit counterclaims, unless the claimant has raised a contractual dispute” is better than saying “you cannot hear a counterclaim in this case”.

Or, in English, the time you spend on an issue in tribunal should be proportional to the importance of the issue and its complexity.

The amount of time you spend on something will send a message to the tribunal. The more time you spend on a point the more important you suggest that it is.

So, all else being equal, you should spend the most time on your important points.

However, all else is not equal and you will have to take account of how complex your points are. A difficult issue takes more time to deal with. And if what you have to say is short and simple it does no good (and normally does harm) to keep talking once you’ve made the point.

It is sometimes worth flagging up exceptions to the general rule. For example you might say “Sir, my next point is really the key to this case, but it’s a simple point and I will be brief.” Similarly, you might say “Madam, the contractual point is rather difficult and I’m afraid I’m going to have to spend rather a lot of time on it.”

Update: A reader points out that, arguably, the equation should be importance multiplied by difficulty; rather than importance divided by difficulty. This is correct – unless difficulty is expressed as a number greater than zero but equal or less than 1. This may be a post event rationalisation, but it preserves the original formula.

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. Quite possibly the only bit of legal advice you should take from Tom Cruise’s character in A Few Good Men is his line on strenuous objections.

“I strenuously object?” Is that how it works? Hm? “Objection.” “Overruled.” “Oh, no, no, no. No, I STRENUOUSLY object.” “Oh. Well, if you strenuously object then I should take some time to reconsider.”

If you do need to emphasise the seriousness of something it is better to explain why it is serious than tell the tribunal it is.

For example, say that the respondent has been uncooperative in producing witness statements. To make clear that you have done everything you could you might say:

On the 1st May I rang Ms Jones to discuss exchange of witness statements. I was not able to reach her and left a message. On the 2nd May I rang again. I spoke to her secretary and was told that Ms Jones would ring me back that afternoon. She did not.

The following Tuesday, the 6th, I rang again. This time I reached Ms Jones. She told me that she could not speak to me at the moment. I said that I would send her an email. I sent one later that day. I reminded her that there had been an order to exchange statements on the 7th. I asked her to confirm that they were in a position to do. I suggested that we do so either by fax or email. I included my details and asked her to suggest a convenient time.

I did not get a reply and could not reach her, or her secretary, by phone on the 7th.

I then wrote a letter, pointing out that the deadline for exchange had passed and asking her to contact me urgently. I sent this by recorded delivery, which confirmed it was received on the 8th. I also sent it by email. I did not get a reply.

I made more phone calls on the 8th, 9th, 13th and 15th. Each time I left a message, but these were not returned.

This is far more convincing that any number of ‘strenuously’s.

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.

For example, an EAT case may say something like:

Such and such is an attractive and powerful argument.

This is a great quote if you want to argue that ‘such and such’ is true.

If, however, the court then went on to say:

Having carefully examined it, however, we have concluded that it is completely wrong

You absolutely must not quote the first paragraph, but leave out the second. Not only is it dishonest, it will not work. Your panel was not born yesterday. And one of the most effective submissions in a tribunal is one that begins “Let me read you the paragraph just after the one my colleague referred to, so we can look at what he left out”.

Unfortunately, while dishonesty is simple to avoid, it is surprisingly easy to do this accidently.

Many judgments, for example, set out a general rule, but then go on to discuss the limits of that rule or circumstances where it does not apply. It is easy to focus on the general rule, and miss what comes after.

This is something to be alert to. If there is a slight reversal of the quote you want to use, it is much better to deal with it up front. For example:

This rule was set out by the EAT in Smith v Jones at paragraph 17:

“…quote…”

The tribunal went on to discuss circumstances in which this rule should not be applied:

“…quote…”

For the following reasons, these exceptions do not apply here…

By identifying and dealing with the point you have secured two advantages. Firstly, there is no possibility that the tribunal will think you were shading the truth. This disarms a potentially dangerous attack from the other side.

Secondly, you have dealt with the point on your own terms. If you allow it to be raised by the other side you will be on the defensive. By raising it yourself, you get the chance to discuss it before your opponent; frame the issue and get your retaliation in first.

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:

When you have to…

The tribunal may order written submissions. In that case you will have to do them.

This is not as potentially onerous as it sounds. Such orders are unusual, and will generally only be made where the parties would have wanted to do written submissions anyway.

The situation is different on appeal. The procedural rules in the EAT and above require submissions in writing in all cases. Having said this, it would be a brave person who wanted to run an appeal case without a written skeleton anyway.

In complex cases…

Where a case contains complex issues of fact or law, written submissions are invaluable.

The longer and more complex a case, the more difficult it is to deal with it in oral submissions alone. A written document gives structure and detail. It also gives you a second bite at the cherry. The tribunal will take your written submissions back to their deliberations and may be persuaded long after the advocates have finished talking.

Written submissions also allow you to focus your oral submissions on the most important points. Big cases always have peripheral, but significant, points in them. These can often be dealt with by saying “I cover with this in my written submissions, unless the tribunal would like me to go into it now?”.

Where they help you…

Often, the exercise of writing down exactly what you want to say to the tribunal, in complete sentences, with relevant extracts from the law and evidence, is the best way of preparing yourself.

It is even, if you have time, worth considering doing the written submissions first. Once you know what you want to be able to say at the end of the case you will know what evidence your witnesses need to give; what cross-examination needs to be done; even what disclosure needs to be requested.

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.

Lawyers often talk about ‘arguments in the alternative’. It is one of those useful bits of jargon that, as well as being a handy shorthand, reveals a way of thinking about a case.

An argument in the alternative is one in the form: A is true, but if A is not true then B is true. This is not nearly as complicated as it sounds. For example:

My dismissal was unfair, because I was dismissed as a result of making a protected disclosure. This was an automatically unfair reason for dismissing me.

But, if I was not dismissed for making a protected disclosure, my dismissal was still unfair, because I nothing I had done justified being dismissed.

The claimant’s first argument is that the reason for her dismissal is automatically unfair. If she succeeds in this submission she will win the case. But, if she does not, she has a second argument, that the dismissal lay outside the range of reasonable responses. This is the argument in the alternative. If she wins on the first point it will be unnecessary, but the alternative needs to be put forward, in case the first argument fails.

The structure and concept of arguments in the alternative is useful. It is helpful to identify what your main case is, and what you say if it does not succeed.

There are a few traps to avoid.

Firstly, often you will be making a number of arguments about the same facts. For example, that a termination was both unfair dismissal and also an act of discrimination. This is not an argument in the alternative. You are not saying that the dismissal was unfair, but if it wasn’t then it was discrimination. The argument is that the act was both unfair dismissal and discrimination.

Secondly, there are good arguments in the alternative and bad ones. Sometimes this is clear cut. The criminal who says “I wasn’t there. And if I was there, it wasn’t me who shot him. And if I did shoot him, it was self defence” is not going to be believed. If you are giving evidence, and you know what happened, that is what you must say. It is extremely damaging to try to offer several inconsistent accounts.

A similar point is the danger of making too many points and detracting from your best ones. In many cases, it is more sensible to focus on a few strong points, rather than offering endless arguments in the alternative. This is often a difficult judgement to make. A useful approach is to ask yourself “If I lose arguments A, B and C, is there a real possibility I might win the case on argument D?”. If there is it is worth arguing. If, by the time you have failed with arguments A, B and C, there is no real chance that D will succeed, it is probably better to focus on convincing the tribunal of A, B and C.

In the modern world of employment litigation there is no situation where it is appropriate to use the word “aforesaid”.

This is one of those rare rules to which there are no exceptions.