Tagged: writing

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‘I reserve the right…’

Lawyers often claim on behalf of their clients to be ‘reserving the right’ to do something.

The Respondent reserves its right to amend its ET3 on provision of further particulars…

The Claimant reserves the right to apply for a postponement if…

Nine times out of 10, the expression is meaningless. If you have the right to do something, you don’t need to ‘reserve’ it – you’ve got it anyway. So in the second example: you can always apply to the tribunal for a postponement – or ask it to do anything else it has power to do. (Come to that, you can ask it to do things it doesn’t have power to do, if you like.)

On the other hand, if you need the tribunal’s permission to do something, then you can’t get around that by saying that you ‘reserve the right’ to do it. You might as well say ‘abracadabra’ for all the difference it makes. You’re still going to have to ask the tribunal’s permission to amend.

The only situation in which this phrase can have a useful meaning is if you’re doing or saying something now that could give the impression that you are giving up the right to do something you might otherwise want to do later, and you want to make sure you don’t give that impression.  So for example, you might say in written submissions:

The Claimant accepts that the tribunal is bound by the decision of the Employment Appeal Tribunal in Gamgee v Shire Agricultural Holdings Ltd to to find that he lacked sufficient continuity of service to complain of ordinary unfair dismissal. The Claimant reserves the right to argue on appeal that Gamgee was wrongly decided.

This is meaningful. You’re entitled to argue that Gamgee  was wrongly decided – no-one can stop you. But it’s pretty pointless telling an employment tribunal that the EAT has got it wrong: the ET is bound by the EAT’s decision anyway. So it’s sensible not to trouble that ET with an argument which, at that level, is bound to fail. At the same time, if it comes to an appeal, you don’t want to be slapped down with ‘this wasn’t argued below.’ So by ‘reserving the right,’ you flag it as an issue without wasting everyone’s time with an argument that can’t succeed at first instance.

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More good advice from a philosopher

When you’re reading or skimming argumentative essays… here is a quick trick that may save you much time and effort, especially in this age of simple searching by computer: look for “surely” in the document, and check each occurrence. Not always, not even most of the time, but often the word “surely” is as good as a blinking light locating a weak point in the argument.

Daniel C. Dennett: Intuition Pumps and Other Tools for Thinking, Allen Lane 2013, p.53.

 

For ‘argumentative essays’ read ‘skeleton arguments and written submissions.’ And for ‘surely’ read also ‘obviously,’ ‘plainly,’ ‘manifestly,’ ‘clearly’ or ‘self-evidently.’

There are two uses for this technique, for a lawyer. One is to sniff out corners of the other side’s argument that they’re feeling a bit wobbly about, or don’t quite know how to explain or justify properly – so that you can direct your attack at those weak points.

The other – perhaps more importantly – is to check your own argument for weaknesses, and add reinforcement where it’s needed. If you’ve said ‘surely blah blah..,’ ‘self-evidently wurra wurra..’ etc. where in fact it’s not sure or self-evident from what else you’ve written, you need to explain why ‘blah blah’ or ‘wurra wurra’ are true.

 

 

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Don’t make the reader clamber over a pile of scaffolding

1.  In this skeleton argument, references to pages of the core bundle will be in square brackets, in bold print, with the prefix “core.” References to numbered pages of the supplementary bundle will be in bold square brackets with the prefix “supp.”

2.  This is an appeal from the decision of the Watford Employment Tribunal (“the ET”) to uphold a complaint of unfair dismissal by the Respondent (the Claimant below, and hereafter referred to as “the Claimant”) against the  Appellant Council (the Respondent in the ET claim, and hereafter referred to as “the Council.”)

3.  On 7 April 2012, the EAT (Baggins J) ordered that the appeal be set down for a full hearing [core/1-2].

Skeleton arguments and written submissions often begin with stuff like this: information about how the document should be read, the procedural history of the case and so on. It makes me think of scaffolding because it was functional once, but by the time the building’s finished it should all have been tidied away out of sight.

It’s true, no doubt, that the average judge starting to read a skeleton argument or set of written submissions isn’t expecting much in the way of laugh-out-loud moments, or goose-pimple thrills. But all the same: it’s safe to assume that your judge is clever, busy, and in a hurry. These sorts of introductory paragraphs are a bad use of the limited time and attention she has to spend on your case. They’re an especially bad use of the first few moments of it.

Paragraph 1 tells the judge something she can be expected to guess without difficulty. She’s been given a bundle called ‘core bundle,’ and another bundle called ‘supplementary bundle.’ If you put a reference that goes [core 48] in your skeleton, what’s she likely to think you mean? Is she going to start hunting around for apple cores, or is she going to reach for the core bundle and turn to page 48?

Paragraph 2 starts by repeating information contained in the notice of appeal. Why? Then it tells the judge how you’re going to refer to the parties. But if the claim was an unfair dismissal claim brought against a local authority, the expressions ‘the Claimant’ and ‘the Council’ are perfectly clear without explanation.

Paragraph 3 tells the judge something else she can be taken to know. You’re all there, aren’t you? So someone must have let the appeal through to a full hearing; and the order will be in the bundle.

So get on with it. Say something meaningful in your first paragraph that helps the court get a grip on what the case is all about – and, ideally, does so in a way that improves your chances of winning.

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The aim of written submissions

The primary aim of written submissions to persuade the Judge to decide in your favour. This means doing two things. First, explaining your case (both factually and legally) to the Judge. Second, persuading them that you are right.

It’s important to remember that the second part — convincing the Judge you’re right — is dependent on the first. It’s hard to convince anyone of an argument they don’t understand.

It’s also important to remember that explaining a case is quite difficult. The main problem with most bad written submissions is that they’re hard to understand.

As a useful point to aim at, remember that if the Judge was given your written submissions to read (but nothing else), having read them she should:

  • Know basically what has happened
  • Know what issues she will have to decide (both factual and legal)
  • Know what you say about those issues
  • Be convinced you’re right

There are any number of ways that this can go wrong. Often the problem is not so much with writing written submissions, but the writer’s underlying understanding of the case. If you don’t know what the issues are and what you should say about them, it’s going to be tough to write submissions. Although, having said that, lots of us use the process of writing written submissions as a way of working out exactly what a case is about. This is fine, provided you do fully understand the case when you’re finished.

Even if your understanding of the case is solid, it’s still possible to write very bad submissions. When in doubt, its best to simply focus on explaining your case as plainly and simply as possible. And being as concise as possible.

This is partly because of how advocacy affects tribunal decision making. In most cases it doesn’t matter much — the facts and law are clear enough that the tribunal will make the same decision regardless of the advocacy. Of the remaining cases, most are lost by bad advocacy.

This is normally a failure to either explain the case or bring the attention of the tribunal to the relevant evidence. For example, the real problem with the dismissal is a failure to investigate the alleged misconduct. But it is not a total failure to investigate and, superficially, the right steps seem to have been taken. If an advocate spends all his time attacking the conduct of the disciplinary hearing (which wasn’t actually unfair) or is simply incoherent when discussing the investigation, it is all too easy for the tribunal to miss the point.

A small number of cases are won by good advocacy. A superb cross-examination of a difficult witness or a persuasive oral submission. This is the sort of thing we all aspire to and tell stories about later. As a beginner or a self-represented litigant, however, it’s almost certainly better to focus on the basics. Make sure you’ve set out your case clearly so the tribunal can easily understand it and you have done 90% of what anyone (even the most formidable QC) could do.

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Text Expansion Software

This isn’t a legal tip, but it is very useful.

If you write a lot, particularly if you write the same thing a lot, it is worth getting a bit of software that that will replace the text you type, with another, pre-prepared bit of text. So, for example, you could type ‘raininspain’ but get ‘The rain in Spain, Falls mainly on the Plain’.

That example, of course, is fairly useless useless you’re writing about musical versions of Pygmalion. But there are lots of other uses.

For example, I use this for:

  • Difficult to spell names of parties, witnesses or cases.
  • Inserting the current time / date into documents (by typing ttime and ddate respectively).
  • Case names that crop up regularly (including citation).
  • Hackneyed quotations from cases, e.g. ‘The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.’ (All I had to type to get that was ‘tt&c’.) Or ‘aanquote’ gets me ‘[I]t is the job of the tribunal of first instance not simply to set out the relevant evidential issues, as this Industrial Tribunal conscientiously and lucidly did, but to follow them through to a reasoned conclusion except to the extent that they become otiose; and if they do become otiose, the tribunal needs to say why’.
  • Hackneyed phrases from legislation, e.g. ‘ppcp’ for ‘provision, criterion or practice,’ or ‘pprop’ for ‘proportionate means of achieving a legitimate aim’.
  • Inserting my address and email quickly (and without having to remember them).
  • Applying different email signatures depending on who I’m writing to.

None of this sounds radically exciting. But it makes a lot of things just slightly easier, which does add up.

Personally, I use TextExpander to do this and I’m very happy with it. But there are a number of different programes, for both Macs and Windows PCs that will do the same thing.

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Tone matters

A client recently told me he thought a document I had drafted for him sounded ‘smug.’ I was momentarily a bit miffed, of course. But there are at least 3 things to learn from this:

1. Tone matters. The ‘feel’ of a document is often at least as important as its content. It’s the written equivalent of body language, and – like body language – it’s the bit that communicates direct to the reader’s emotions. You always want the judge’s sympathy, if you can possibly get it. So annoying the judge by sounding smug, sarcastic or over-confident is a bad start.

2. The tone of your own writing is difficult to gauge, so for any important piece of writing it is useful to get someone else to read what you’ve written and tell you candidly whether there’s anything annoying about it.

3. If you are a client, this is something you can usefully contribute even if you don’t fully understand all the technical legal arguments that are being put forward on your behalf. Of course, you may have to be a bit careful about your own tone when you tell your adviser that what they’ve written sounds smug or arrogant. But if they’re sensible, they will realise you’ve told them something they need to know.

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Supreme Court Briefs

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.

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When C Sued R

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.

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Citation and the Oxford Standard for the Citation of Authorities

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.

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Written applications and judicial working conditions

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.