A number of people have commented or emailed about “Do not submit” which recommended that advocates eliminate “I submit” from their vocabulary when addressing the tribunal.

Since the consensus is against me it might be worth setting out in more detail why I dislike it.

Firstly, it offends against the signal to noise principle. Submissions should contain as high a percentage of substance as possible. Anything that does not contribute to your argument should be removed. “I submit” adds nothing meaningful; the tribunal knows you are making submissions.

Secondly, there is a real risk of it becoming an annoying tick. Any phrase repeated often is likely to grate. Once you start saying “I submit” it is hard to know when to stop. After all, everything you say is a submission. Many people find themselves repeating in almost every paragraph they write or every minute as they speak. This has much the same impact as fingernails on a blackboard.

Finally, it puts distance between you and your submissions. It is not as bad as saying “My client’s instructions are to submit”, but the affect is similar. By saying “I submit” you are emphasising your formal role. This may be more comfortable for you the advocate, but it make it harder to communicate conviction.

Abigail makes the good point that “I submit” can be used to show respect for the tribunal. There are certainly moments when this is useful. Say that the tribunal is strongly against you on a point and the dialogue is beginning to descend into a wrangle, rather than a discussion. Using “I submit” might emphasise the formal roles and defuse the confrontation. In general, however, this should not be necessary. You must respect the tribunal, but this means begin polite to them and keeping in mind their judicial role (meaning that you recognise that they are in charge of the hearing). Formal phrases, be they “I submit” or “Respectfully…” do not add anything to this.

Does anyone else have any views?

Many lawyers write and say things like:

• In my submission, the employer failed to follow a fair procedure
• This, I submit, was an act of direct sex discrimination
• I am going to submit that this claim should be allowed in out of time.

All of these examples can be improved easily, by removing any reference to submissions. For example:

• The employer failed to follow a fair procedure
• This was an act of direct sex discrimination
• This claim should be allowed in out of time.

The second examples have the advantage of being shorter, clearer and more direct. This makes them more persuasive.

From time to time you will see the term “sic” used in a quotation. For example:

Bob Sampson made a decision that no reasonable men [sic] could have reached.

It is used to show that something that appears odd or wrong comes from the original. So, in the example above, “sic” indicates that the confusion between “man” and “men” was in the original, not a mistake by the person quoting it.

“Sic” is widely used in the academic world to avoid ambiguity and confusion. It appears in legal writing for the same reason.

There are good uses and bad uses of this. Precision is important. “Sic” can usefully clarify a quote where necessary.

On the other hand, too many people use “sic” as a goad; to pick up and point out every grammatical or other mistake that they perceive in what the other side writes. This is foolish point scoring. It will upset the other side to no good purpose and make you look like a bully.

If you do not use “sic” you have two options. Firstly, you can correct the original mistake in the quotation. This is normally the best option with spelling mistakes. It is less appropriate when the mistake is one of grammar or wording, since you may be accused of altering the meaning of the quote. The second option is simply to replicate the original, without comment. Where there is no possibility of confusion, this is a perfectly sensible approach.

Finally, if you do use “sic”, be sure you are right. Mistaken pedantry is rarely attractive.

The Court of Appeal has commented on the proper use of skeleton arguments in Tombstone Ltd v Raja & Heals.

Although the case had nothing to do with employment law, the comments are relevant to skeleton arguments generally – in the EAT as well as the Court of Appeal.

The full comments of the Court are set out below. In summary, they warn against excessive length and make clear that skeleton arguments are intended as an aid to oral advocacy.

This is not straightforward. It is clear that in Tombstone itself the skeleton was too long. It is also true that a concise and focused argument will be more persuasive than a verbose one.

On the other hand, taking the guidance in Tombstone too much to heart is probably a mistake. In our experience, ‘skeleton’ arguments do now almost invariably amount to full written submissions capable of standing alone. Whether that’s a good thing is open to debate; but the reality is that the members of appellate courts will normally have read the skeletons and formed at least a provisional view before the hearing begins. That means you have to do a lot of the work of persuading them in your skeleton – especially as the chances are your opponent will have.

If some judges will bark at you for producing an excessively fleshy skeleton, others will raise an eyebrow if you try to say anything in oral submissions that isn’t covered in your skeleton – or, worse, make up their minds on the written material and then scarcely let you get a word in edgeways once you’re on your feet.

The key is to understand that a well written skeleton can make your whole argument, without becoming over long.

Lord Justice Mummery said:

122. We end this judgment with a criticism of the excessive length and complexity of Tombstone’s skeleton argument. It has 110 pages of text plus 64 pages of Appendices. Although its authors set out to assist the court, as well as the client, by a very thorough presentation of Tombstone’s case, it is sensible to set reasonable limits to its length.

123. Mr Onslow described it “as an extremely long document” for a case that, while unusual, was not unduly complex. The appeal was from a judgment of modest length (27 pages). It was very hard, he said, to see what justified such voluminous arguments. Most of the legal issues have been settled by existing authority. No primary findings of fact are challenged on the appeal. He added that, from Healys’ perspective, this had added to the length of their skeleton argument (56 pages), which they had tried to keep as short as possible. It had also added considerably to the cost and length of the appeal.

124. The length of Tombstone’s skeleton did not assist the court. In fact, it tended to detract from Tombstone’s case, which was accurately and far more succinctly stated by Mr Onslow in his written and oral responses to it. His team adopted the technique of briefly stating the points taken by Tombstone and then concisely commenting on them.

125. Practitioners who ignore practice directions on skeleton arguments (see CPR 52PD paras 5.10 “Each point should be stated as concisely as the nature of the case allows”) and do so without the imposition of any formal penalty are well advised to note the risk of the court’s negative reaction to unnecessarily long written submissions. The skeleton argument procedure was introduced to assist the court, as well as the parties, by improving preparations for, and the efficiency of, adversarial oral hearings, which remain central to this court’s public role.

126. We remind practitioners that skeleton arguments should not be prepared as verbatim scripts to be read out in public or as footnoted theses to be read in private. Good skeleton arguments are tools with practical uses: an agenda for the hearing, a summary of the main points, propositions and arguments to be developed orally, a useful way of noting citations and references, a convenient place for making cross references, a time-saving means of avoiding unnecessary dictation to the court and laborious and pointless note-taking by the court.

127. Skeleton arguments are aids to oral advocacy. They are not written briefs which are used in some jurisdictions as substitutes for oral advocacy. An unintended and unfortunate side effect of the growth in written advocacy (written opening and closing submissions and “speaking notes”, as well as skeleton arguments) has been that too many practitioners, at increased cost to their clients and diminishing assistance to the court, burden their opponents and the court with written briefs. They are anything but brief. The result is that there is no real saving of legal costs, or of precious hearing, reading and writing time. As has happened in this case, the opponent’s skeleton argument becomes longer and the judgment reflecting the lengthy written submissions tends to be longer than is really necessary to explain to the parties why they have won or lost an appeal.

128. The skeletal nature of written advocacy is in danger of being overlooked. In some cases we are weighed down by the skeleton arguments and when we dare to complain about the time they take up, we are sometimes told that we can read them “in our own time” after the hearing. In our judgment, this is not what appellate advocacy is about, or ought to be about, in this court.

From time to time you will want to emphasise text in a document you are writing. The most common use is drawing attention to a particular part of a quote, but there are many other situations where emphasis is useful.

There is one good way of doing this. It is to put text in italics. Like this.

If, for whatever reason, you don’t like italics, there are two acceptable alternatives. You can use bold or underline.

The reason that the last two are less desirable than italics is that they make your document slightly harder to read and slightly less attractive. These differences are minor. Only a typography nerd will notice or care. For practical purposes, there is little difference between italics, bold and underline. Having said that, since italics are that little bit better, why not use them?

Whatever you do, it is best to pick one method. A document with italics, bold and underline on the same page will look odd and be hard to read.

Even if you stick to one method, it is best used sparingly. If you emphasise everything, nothing will be emphasised. And, again, a page which is half bold type will look strange.

Do not use different colours or changes in size. They look awful.

All of this advice is aimed at emphasising text inside paragraphs. The rules for formatting things like headings or titles are rather more relaxed, although restraint is a good policy there as well.

There are two reasons to get this sort of thing right. The first is that it will make your document look better. It is the written version of shaving and putting on a clean shirt before going to the tribunal.

The second is that lawyers tend to associate badly formatted documents with bad cases. That is not an association you want the tribunal to make. This is one of those prejudices that is partly, but not entirely, justified. The fact that someone writes only in capitals does not mean that their case is weak. But it is rarely a good sign when someone turns in the written equivalent of an impassioned rant, full of strange fonts, half in bold and with large sections of green ink.

Do not, however, allow yourself to become neurotic about formatting your document. Cases are not won or lost on the beauty of the parties’ typesetting (if they were the standards of legal typography would be much higher). The only thing you really need to avoid is turning your document into a mess. If you are aware enough to worry about this issue, you have nothing to worry about.

If you have been knocking around the wonderful world of employment tribunals for a little while, you will have accumulated a few completed cases. It is worth, from time to time, pulling out these files and reading through them. In particular, take a look at the written work you did.

This tends to be quite humbling. You will almost certainly feel that, six months or a year ago, you were terribly green and that now you’d do much better. As well as being quite good for your soul, this helps you identify areas where you can improve further. If your old letters read as unbearably pompous, then that is something to watch out for in the here and now. If you tended to waffle on without making a clear point then redouble your efforts to be clear. Think about how you’d approach the old case now, and you’ll probably get useful insights.

You’ll also probably spot some good work, which you can re-use.

While you’re at it, look at what your opponent did, particularly if they were a professional representative. While the case was going on you probably reacted to their submissions with a little bit of attitude. A sort of general feeling of ‘What tosh, and also pish’. Once the case is over, and you are less involved, you are more likely to be objective. A good opponent is one of the very best people to learn from.

It is not unusual, when writing, to struggle with how to phrase a particular thought or issue. This is particularly common when the subject is sensitive or potentially controversial. For example, you may need to write to the tribunal admitting a mistake or criticising the conduct of another party. Or you may need need to deal with embarrassing medical details as part of an application.

These are difficult things to write about. You will often know what you need to say, but be unsure about how to put this into words. This is particularly difficult when you are worried about the style of your writing, as well as the content.

The best way to start is to just write down what it is you need to say directly and simply. Just put in the necessary facts and the points you need to make.

This has two advantages. Firstly, once you have a first draft, that makes all the necessary points, you can edit for style and tone. This is almost always easier than attempting to get everything right immediately.

Secondly, in almost all circumstances, setting down your points simply and directly is the best way of writing. You will often find, having written a draft that deals with all of the relevant issues, that it needs little rewriting.

Litigants and new lawyers are often troubled by the vast number of different situations that arise in the process of litigation.

It is helpful to remember that, really, there are only a handful of different situations, just an infinite number of slight variations.

One of the most common is asking the tribunal to do or order something. This might be ordering a document be disclosed; a question answered; a hearing postponed or a witness ordered to attend. But all these situations follow a common pattern. What follows is a standard template for applying for almost anything.

Opening formalities

Start with the obvious. Write the tribunal’s address and the date, just as you would in any letter.

You will also need to include the case number and, if you work for an organisation, any internal reference of yours.

Then open with a salutation. “Dear Sir or Madam” is standard.

It is common to then title the document. This should contain the party names; the nature of the application and, if the application is urgent, the word urgent. For example:

URGENT: Smith v Jones – application to postpone

Do not say the application is urgent unless it is. Don’t start off on the wrong foot by fibbing.

Guidance for dealing with the application

In nine cases out of ten, this is a standard piece of rubric:

I would be grateful if you would put the following application before a Judge.

If there is something unusual about the way in which the application should be dealt with, this is the place to mention it. For example, if a particular Judge is dealing with the case, you should ask the application to go before him. Similarly, if you are putting the application in writing, but expect it to be dealt with at an upcoming hearing, it is sensible to say so.

Bear in mind, however, that you cannot control how the tribunal deals with your application. That is up to them. You can only make a request or suggestion.

If you have said your application is urgent this is the place to explain why.

What you are asking for

At this point, say what it is that you are asking the tribunal to do.

The tribunal’s authority

Then indicate why the tribunal is able to do what you ask.

This is often unnecessary. Orders for discovery, or to postpone, are so routine that no issue is likely to arise about the tribunal’s powers. But if your application is more unusual, it is sensible to make it clear where the tribunal’s power comes from.

Why the tribunal should do it

This is likely to be the longest section. Write down all the reasons that the tribunal should do what you ask.

This section will often also include a discussion of what legal test the tribunal should use to decide the application. For example, if you are making an application to amend the claim. You might set out the guidance in Selkent about when such applications should be granted. Then explain why you meet that test.

Closing formalities

The tribunal rules require that all applications explain how the order will “assist the tribunal or chairman in dealing with the proceedings efficiently and fairly”. This should have been covered in your explanation for why the tribunal should do what you want. But it is conventional to state it explicity by writing something like:

For the reasons set out above, [this order] will assist the tribunal in dealing with the case efficiently and fairly.

The rules also require that you set out the otherside’s right to respond to the application:

This letter is copied to the respondent. The Respondent should not that if it objects to the application, it must write to the tribunal within seven days of receiving this letter, or before the date of the hearing (whichever date is the earlier) explaining the reasons for its objection , and should copy that letter to me. Rule 11 of the Procedural Rules has been complied with in relation to this application.

Note that there is an exception to this rule. If you are applying for a witness order, you do not have to inform the other side (although you can if you want).

Finally, sign the letter and post / fax / email it to the tribunal (and the respondent).

Oral applications

Applications at a hearing follow a very similar pattern. Say what you want and why the tribunal should agree.

It is very common, in correspondence or orally, to need to refer to other documents, be they statutes, case-law or evidence. You will very rarely write anything that does not talk about other documents.

It is well worth thinking about how you do this. Writing something like “Such and such was laid out in the company’s policy” can cause problems. Often the policy will be long, and there may even be more than one. Your reader will have to search through pages of documents to find what you are talking about. Even a short submission of a couple of pages, will probably refer to a dozen or so other documents at least, so these problems add up quickly.

It can also cause difficulties for you, since you may well be asked “Where exactly is that?”.

There are basically two ways of avoiding this problem:

References

Almost every document you will deal with in a case, will have a shorthand way of referring to it.

• Documents in the bundle can be referred to by page numbers. Some documents also have paragraph numbers you can use.
• Cases can be referred to by their case citation. You can use page numbers, paragraph numbers and marginal letters to give more precise references.
• Witness statements can be referred to by paragraph numbers.
• Statutes are referred to using the name of the statute and section numbers.

Using these references is simple. For example,

Mr White, at paragraph 6 of his statement, says that the bonus scheme was organised on a commission basis, bundle p78, para. 5.

Many people like to put references in italics. This can be useful.

Another useful technique, particularly when you will be referring often to the same source, is to indicate a default reference. For example, you might write at the beginning of a submission “Page references are to the bundle of documents, unless otherwise indicated”. This allows you to avoid writing ‘bundle’ repeatedly.

Quotation

Sometimes, it will be useful to quote from documents, rather than just providing a reference. There is no absolute rule as to when a quote is better that a reference. It is mostly a matter of common sense. Your aim should be to make things easy for the reader. If a quote will help them, put one in.

In general, the more important a document and the more you want to say about it the more likely that a quote is sensible.

Bear in mind that quotations break up what you are writing. Too many quotes will make it difficult to follow what you are saying, since you will keep stopping to insert a quote. The aim is to achieve a happy medium between giving your reader useful information and making your points concisely.

A quotation should always have a reference attached, so that the reader can follow up the quote and see it in its original context.

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.