The American Bar Association makes all of the merits briefs to the US Supreme court available online.

Don’t rush off to read them if you’re just running your own case in the tribunal. Since the US has a different legal system the law they discuss is irrelevant to you. Also, they argue cases, particularly on appeal, very differently. US appeals are basically decided on the papers. Even in the Supreme Court, lawyers are usually restricted to half an hour oral argument. So US briefs have to argue the whole case, rather than being skeletons to be fleshed out orally.

So, the US briefs aren’t directly relevant and, if you’re just doing the one case, your time is better spent elsewhere.

But, if you do a lot of cases or you’re interested in legal writing, they are well worth a read. Many of the lawyers arguing in the US Supreme Court are brilliant advocates and the US system encourages them to hone their written work. You can learn a lot about how to set out and argue a point by studying their example.

A hat-tip to Carl Gardner, whose Written constitutions: a warning from America prompted this post. And, come to think of it, is also worth reading to see good legal writing.

During the course of litigation, you will have to refer to the parties, in letters, written submissions and so on.

There are basically two ways of doing this. You can call them by their names: ‘Mr Smith sued Mr Jones’. Or you can call them by their titles: ‘The Claimant sued the Respondent’ or sometimes ‘Claimant sued Respondent’.

It doesn’t really matter which you pick. People have different styles and most of us switch between them depending on what we’re doing (although I tend to remain consistent within a document to avoid confusion).

I have seen people write ‘C’ for Claimant and ‘R’ for Respondent. This is a bad idea, just because it looks slightly odd and the single initial tends to interrupt the flow.

Never consistently call your client ‘Mr Smith’ while referring to his employer as ‘the Respondent’. This is a hoary old trick aimed at making Mr Smith seem human and sympathetic, while depersonalising the Respondent. It is so ancient and so well known that, far from being moved to sympathy, the tribunal will be insulted by the fact that you’re taking them for rubes.

Legal writing generally involves discussing authority, in the form of case-law or statutes. To make this easier, lawyers have developed a system of citation — a shorthand system for identifying authorities.

So we write ‘Miles v Gilbank [2006] ICR 1297′ rather than ‘the case of Ms Miles against Ms Gilbank reported in the 2006 volume of the Industrial Cases Reports at page 1297.’ The shorthand is briefer and clearer than the long form.

The basics of case citation are straightforward. Even if you have never encountered it before, you probably know 95% of what you need from the example above. The name of the case (conventionally in italics) is followed by the year it was reported (in square brackets) then the standard abbreviation of the law report it was reported in and finally the page number.

There are, however, all sorts of complexities. How does one refer to an Advocates General’s Opinion in a European Court of Justice case? What is the proper way of providing a ‘pinpoint’ citation (a reference to a particular page or paragraph in a case)?

Similarly, references to legislation are generally straightforward. We refer to the Employment Rights Act enacted in 1996 as the Employment Rights Act 1996. But how should one reference a rule in the Civil Procedure Rules or pre-1972 European Union legislation (which did not have an official English translation)?

To answer that sort of question, we need a formal system of citation. For UK lawyers, this is the Oxford Standard for the Citation of Authorities. This sets out a set of rules for how to cite any authority you are likely to refer to.

Nothing even mildly awful will happen to you if you don’t follow the Oxford Standard. Many Judges and lawyers do not. They manage perfectly well with a mixture of habit and common sense. And, even if you don’t use a citation system at all, provided the tribunal can work out what case you are talking about, it will make no real difference. These are all points of detail.

But the OSCOLA is useful for two reasons. First, it provides a consistent and well known system. If you follow it, you will use the same approach on page 57 of your skeleton argument that you did in your notice of appeal. That approach will be one that the tribunal will be familiar with and will therefore find easy to understand. Second, it allows you to delegate something quite hard. The authors of the Oxford Standard have spent a long time working out a good legal citation method, so you don’t have to.

OSCOLA, however, is primarily designed for academic lawyers, rather than practitioners. In general, this makes no difference. But there are a few points where you may wish to diverge from it.

Where to put the citation

The Oxford Standard provides a simple answer to this:

OSCOLA is a footnote style: all citations appear in footnotes. OSCOLA does not use endnotes or in-text citations.

Outside of blog posts and letters, I put all citations in footnotes. But many lawyers do use in-text citations (in fact, they are probably somewhat more common than footnotes). I think footnotes are better. They keep the reference out of the way, but easily accessible. But if you prefer in-text citation you will be in good company.

Neutral citations and the ‘best report’

The Oxford Standard includes the neutral citation for a case and requires that you use the ‘best report.’

The neutral citation is a reference, set by the court, that identifies each case by reference to the year of judgment, the relevant court and the judgment. It is neutral, in that it does not refer to any particular set of law reports.

The concept of ‘best citation’ arises from the unofficial hierarchy of law reports. At the top are the Law Reports, produced by the Incorporated Council of Law Reporting. They include the arguments made to the court as well as the judgment, and both the lawyers and the judge see the report before it is published to confirm its accuracy. Partly for these reasons, and partly out of tradition, they are regarded as the senior reports. Below them are the All England Law Reports and the Weekly Law Reports. And then the specialist reports, such as those relating to employment cases. Finally, there are the condensed reports, which contain a summary of the decision, such as the Times Law Reports.

I, in common with most employment practitioners, ignore both of these rules. During litigation, copies of the relevant cases will be provided by the parties. So there is no need for a neutral citation. Also, like many employment practitioners, I have easy access to the Industrial Cases Reports and the Industrial Relations Law Reports. Getting the other law reports means a trip to a library. Even if I did have the other reports at my fingertips, others involved in a case might not. So it is easier to stick to the specialist reports.

It is conventional to cite the Industrial Cases Reports in preference to the Industrial Relations Law Reports where a case is available in both. I follow this rule, but it is not worth worrying about if it is easier to get the IRLRs.

SI Numbers

The Oxford Standard includes the SI number when referring to statutory instruments. For example, ‘National Minimum Wage Regulations 1999 SI 1999/584.’

I don’t, because, like the neutral citation, it is unnecessary in litigation. Legislation is either in Butterworths or a copy is provided by one of the parties.

Latin Gadgets

The Oxford Standard advises against ‘gadgets’, the fragments of latin used in academic footnotes.

They make an exception for ‘ibid’, which means ibidem, which means ‘in the same place’. It can be used to repeat the immediately previous citation. So, if a footnote reads ‘Marks and Spencer v Williams-Ryan [2005] ICR 1293,’ and I wanted to refer to a particular page of that case in the next footnote I could write ‘ibid 1306′ rather than writing the full reference.

I don’t like ‘ibid,’ because it strikes me as either fussy or unclear. If it is obvious that I am still writing about the same case, I simply write ’1306′ or possibly ‘p1306.’ If I’m concerned that it might not be obvious, it’s better to repeat the reference in full to avoid any confusion.

They also make an acception for ‘cf’, meaning confer, meaning compare. I’ve never encountered a situation in practice where it would be sensible to use this.

Paragraph numbers and the pilcrow

The previous points arise primarily from the difference between academic writing and writing in the context of litigation. But this final point is purely personal preference.

The Oxford Standard cites paragraphs in two different ways.

In pinpoint citations, it used square brackets, for example, Hussain v Acorn Independent College Ltd [2011] IRLR 463 [31]-[32]. Elsewhere, for example, where referring to an article or book, it uses the abbreviation ‘para’, for example, ‘Naomi Cunningham and Michael Reed, Employment Tribunal Claims: Tactics and Precedents (3rd edition, Legal Action Group 2010), para 8.43.’

I find this inconsistent and I don’t like either method. Using square brackets for both the year and the paragraph looks odd to me, and the use of two sets of square brackets to show a range of paragraphs looks ugly. ‘Para’ is fairly unobjectionable, but takes up too much room.

In any event, I think there is a better way — the pilcrow (¶) — a convenient typographical character used, among other things, to indicate a reference to a paragraph. So I would write Hussain v Acorn Independent College Ltd [2011] IRLR 463 ¶31-32. This, to my eye, looks better and it’s shorter (6 characters, compared with 9 using either square brackets or ‘para’).

I suspect one of the reasons that the pilcrow is not used is that people don’t know how to produce one on their wordprocessors. If you are using a mac, the keyboard shortcut is alt-7; if you are using windows, it is alt + 0182.

The life of an employment judge is not an easy one. (This conclusion is not based on direct personal experience or a statistically robust survey, but I feel sure it’s true.)

Every day, each tribunal centre gets a heavy load of written applications: for postponements; for discovery; for a pre-hearing review to be listed; for a judgment to be reviewed and so on. Most of these are dealt with by whatever judges are on hand. Some may be spending the whole day on paper matters – but more likely, your application will be dealt with by someone who is fitting in paper work during the lunch break or at the end of the hearing day.

So your application will probably be dealt with in a hurry by someone busy, who has not previously had anything to do with the case and has a large stack of other applications to get through.

This should determine how you write your application. You need to make it as easy as possible for the judge to understand – fast – what you want, why you want it, and why you ought to get it. So it should have the following features:

1. It should be concise.
2. It should be direct, and make it absolutely clear what you’re asking the judge to do, and why.
3. It should include all the information the judge needs to decide the application.
4. It should leave out anything that the judge doesn’t need to know to decide the application.

Getting the balance of providing enough, but not too much, information can be difficult. The application should summarise all the information or background the judge needs to decide it. If you need to refer to any other documents – such as previous correspondence – copies should be attached. It should not assume that the judge has any prior knowledge of what the case is about or what has happened so far. But at the same time, it shouldn’t burden the judge with information she doesn’t need to decide the application. This will just make her job more difficult and risk obscuring the relevant information.

Some examples may help.

Example 1:

If you’re asking for a postponement because the claimant has just been admitted to hospital for emergency surgery, you don’t need to tell the judge anything about the case or its procedural history. All she needs to know is that there’s a compelling reason why the claimant isn’t going to be able to attend.

Example 2

If you’re asking for disclosure of some specific document the respondent is refusing to show you, you’ll need to explain why it’s relevant. That means you’ll need to explain the dispute to which it’s relevant. But you still don’t need to explain the whole case – just the bit that you say can’t be resolved without this particular document.

Example 3

If you’re asking the tribunal to strike out the response because the respondent has failed to comply with a whole series of previous orders from the tribunal, you’ll need to set out the procedural history in some detail, and attach copies of all the relevant orders, all your polite and understated but persistent letters chasing compliance with them, and all the respondent’s quarrelsome and/or feeble replies.

In general, typographers try to avoid ending a page with a short fragment of a paragraph or starting a page with the last small part of a paragraph. These are called widows and orphans. They are bad because they look poor and make the document harder to read.

This is not a problem that you should really worry about in legal writing. Most legal documents are written in Word, which has automatic functions dealing with how paragraphs are split. These generally produce an acceptable result and tribunals expect functional documents, not beautiful ones.

There are, however, two situations where manually tweaking can help just enough to make it worth doing.

The first is when quoting legislation. To Word a series of sections in a statute looks like a sequence of short paragraphs, so it is happy to split them over a page break. This is undesirable. To a reader, the series of sections is one paragraph, which they want to see as a whole. Indeed, splitting the legislation over two pages is likely to create more problems than any other type of page break. Legislation is something you often need to read carefully and more than once. Having to flip between pages makes this harder. Even if there is no real choice but to go over two pages, it is worth trying to make the break at some sensible point.

The second situation is where the content around the break produces an unintentionally confusing or humorous result.

For example, if you are representing Mr Jones you might write ‘Mr Smith then said that Mr Jones stole £5,000 and that was an act of misconduct.’ But an unfortunate page break might mean that you appear to start a new paragraph with ‘Mr Jones stole £5,000 and…’ Even if this is unlikely to cause real confusion, it is worth avoiding for appearances sake.

To fix these problems, just manually insert a page break in a more sensible place or rewrite the problematic sentence.

Obviously, these sorts of manual adjustments should be the last thing you do before finalising your document. Otherwise, subsequent changes are likely to shift the page breaks and disrupt all your careful work.

A sign on a churchyard gate, seen on a walk at the weekend, reads:

Please be aware of rabbit damage to the grass to the left of the church door.

This has nothing whatever to do with employment tribunal practice. It’s just rather a perfect specimen of a particular kind of bad writing. I stared at the notice in some puzzlement for several seconds (why do I care about rabbit damage to the grass? is it some kind of an attraction? or is it supposed to be my fault? what am I supposed to do about it?) before it dawned on me that what the writer was trying to say was simply ‘Mind you don’t fall down the rabbit holes.’

I think this sort of thing is brought on by self-consciousness. Things people would be perfectly able to say plainly and simply face-to-face cause them hand-wringing anxiety when they realise that what they write is going to be displayed on a gate and read by every passing walker – or put in a bundle and read by a tribunal. Is it formal enough to write ”Don’t” on a public notice? Is it somehow rude to speak of rabbit holes? Or ambiguous – perhaps they’ll think I mean holes in the rabbits?

The same thing happens with writing people know a tribunal is going to end up reading: they feel tribunal proceedings are important and formal, and that means you have to find longer words and more oblique ways saying things than you normally would.

But you don’t. If you catch yourself struggling for formality in this way, just relax. It’s much better to write what you mean as simply and directly as you would say it aloud.

The format of a lot of advocacy, both written and oral, is to propose a conclusion and provide evidence or explanation to support that conclusion.

So, for example, you might write:

Ms Jones was unfairly dismissed. Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account.

Here, the conclusion is that Ms Jones was unfairly dismissed. The explanation is the detail relating to the shortcomings of Mr Smith’s investigation.

In the example above, the conclusion comes first and then the explanation follows. It could equally be written with the explanation first.

Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account. These failures mean that Ms Jones’ dismissal was unfair.

Whether you should lead with the conclusion or the support for it will depend on the situation. Sometimes it will be best to set out what you are going to try to prove, so that the tribunal can see the point of what you are saying. Other times, it will be best to prepare the ground by putting the evidence first. Or your conclusion may not make sense until some other matters are explained.

Quite often, it will just not matter.

Do avoid, however, trying to put a conclusion in the middle of your argument.

Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Ms Jones’ dismissal was therefore unfair. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account.

This is just confusing. The conclusion gets lost in a muddle of other points. It also become difficult to see what the CCTV point is about. Is it more evidence of a bad investigation? Or is it a new, and separate point?

The phrase ‘I refute’ has started to show up a lot in submissions and witness statements. People use it to mean ‘I deny such and such a thing.’

This is a bad idea. ‘Refute’ is one of those language fault-lines, similar to ‘disinterested’ vs ‘uninterested’ and whether you should ever split an infinitive. While it is common to use it to mean ‘I deny’, many people think it can only properly be used to mean ‘I disprove’.

This is the difference between saying ‘Such and such has been asserted, but I have proved that it must be false’ and ‘So and so says this happened, but I disagree.’

Personally, I am with the Old Guard on this one. But even if you are not, I suggest avoiding using ‘refute’ in this way. Firstly, there is the risk of confusion about what you mean, which is always undesirable. Secondly, the tribunal is quite likely to disagree with you and so may have a flicker of irritation at what they regard as a mistake.

Finally, saying ‘I refute this’ when you mean ‘This is not true’ means that you are using an obscure term in preference to a common one that means the same thing. This is never a good idea and will make your writing harder to read and less compelling.

• Sleep on it. The problem with editing something you’ve just written is that you are too close to it. You will tend to see what you expect to, rather than what is actually there. Similarly, you are less likely to spot structural problems on a document you have just written. Once a little time has passed, you can come to it fresh.
• Print it out. Editing on screen is something many people find difficult. Most people find it easier to see typos and other problems on paper.
• Use a monospaced font. A monospaced font is one, like Courier, where all the characters occupied the same amount of horisontal space, i.e. like a typewriter or a computer terminal. They are not suitable for finished work, because they look ugly. But some people find it easier to spot mistakes in a monospaced font.
• Give it to someone else. A second opinion is often useful. Someone who does not know the detail of your case is more likely to spot gaps in your argument. And a fresh pair of eyes is more likely to spot mistakes.
• Read it aloud. This is likely to be embarrassing, but is often worth doing anyway. Reading aloud will slow you down, making it easier to spot problems. Also, reading aloud will often show up stylistic problems that are harder to spot when reading.

All of these tips are just suggestions. Use what you find useful and ignore the rest.

If you have any tips of your own, please do share them in the comments.

In Is this the best you can do? we emphasised the important of rewriting and editing.

It’s easy to say that rewriting is important, but harder to explain how to do it. It’s easy to say ‘Get the words right’, but hard to explain what the right words are or how you find them. Over the next couple of weeks, we’ll be trying to give some helpful guidance.

A good starting point is to recognise that rewriting covers a wide range of different tasks.

Rethinking

Lots of us do a lot of our thinking about cases by writing about them. So rewriting is an excellent time to rethink. On reflection, does your argument make sense? Have you missed something out? Does the witness statement cover all the information it needs to?

Presenting

Once you are confident that you are saying the right things, you can consider whether you are presenting them most effectively. Are you dealing with things the right way and in the right order? Is there a way of making your argument more persuasive?

Line-editing

This is the sentence by sentence work. It means looking at each sentence, each paragraph, and asking ‘Is there a better way of putting this?’ Better, in this context, means shorter, simpler and more direct.

Nit-picking

Finally, you check your spelling, punctuation and grammer. Very few people get this absolutely right all the time, but it is worth working at.