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.

Compare two contrasting approaches to a practical request:

(1) Why do you never pay any attention to anyone’s needs but your own? I’m sitting here watching the scum form on my tea while you spread marmalade all over the paper – which by the way it doesn’t seem to have occurred to you that anyone else might ever want to read – and shovel toast into your face and the milk’s sitting by your elbow but you can’t be bothered to wonder if I might need it, oh no, number 1 has been taken care of and that’s all that matters isn’t it? Really you are the most selfish person I have ever met!

(2) Could you pass me the milk, please?

Obviously, (2) is much more likely to get you the milk than (1), because in (1) your immediate practical need is largely drowned out by a lot of noise about your larger dissatisfaction with the behaviour of your spouse or house-mate.

Much the same goes for letters and requests to the other side or the tribunal in the course of litigation: just saying simply and civilly what you want them to do and why is much more effective than launching into a long tirade about the respondent’s shortcomings. The latter introduces ‘noise’ into your correspondence that will tend to obscure what you are really trying to communicate and make it less likely that you get what you’re after. It also wastes everyone’s time and energy.

Long letters from the other side are a pretty reliable sign that they are making this mistake: it is rare that there is any practical need to write a letter in the course of litigation that extends beyond about a page and a half.

Don’t be drawn in. If you get a long quarrelsome letter from the other side, pick up a highlighter and highlight those bits that actually ask you to do something. Decide whether or not you are prepared to do whatever you are being asked to do, and write a short letter back telling them that, and explaining briefly why.

Ignore the rest of the letter.

See also I don’t object!

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

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

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

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.

In general, arguments don’t gain anything by being repeated. This is particularly true in inter-parties correspondence.

This does not prevent people writing essentially the same letter more than once. This can, and does, reach ridiculous proportions. A common bad example is respondent solicitors who send letter after letter declaiming that the claimant’s case is misconceived and that they will be seeking costs. But claimant’s can also make the same mistake – often making repeated disclosure requests for the same material, after the respondent has indicated that they are unwilling to provide it.

The strategy behind this approach appears to be that, although the first couple of letters were fruitless, when the third arrives the other side will be struck by your arguments and reverse course.

This doesn’t work.

If your first letter doesn’t work you normally have three options:

Escalation

In tribunal litigation this means going to the tribunal. If the other side is refusing to disclose documents, then ask the tribunal to order them to do so. If you believe their response is misconceived, you might want a PHR to strike part of it out.

While it is sensible to agree as much as possible with the other side, litigation is adversarial. It is the tribunal’s job to resolve matters when agreement can’t be reached.

Argument

Sometimes you can actually change the other side’s mind. It is often worth elaborating on your arguments or ringing them up to discuss things. The point is that if your original letter didn’t work, you need to try a different approach, rather than repeat the one that didn’t work.

Do nothing

Quite often the sensible approach is masterful inactivity.

Say you are discussing what the relevant issues are, and the other side wants to include something that is clearly irrelevant. It is sensible to discuss it and try to change their mind. But, in the end, you can’t stop them bringing it up and there is normally no point bringing the tribunal in at that stage. The best course is to say “I think that’s irrelevant, but if you disagree, the tribunal will have to deal with it at the hearing”. Then at the hearing put the question to the tribunal.

Similarly, sometimes you are writing to put the other side on notice of something. For example, you may need to tell them that you intend to make an application for costs. Once you have done so, it is often pointless to discuss the issue further. They are unlikely to agree that they should pay costs; you are unlikely to agree not to seek them. Of course, the situation may change, or somebody may propose a compromise. But there is no point in engaging in prolonged correspondence that boils down to ‘Oh, yes it is’ / ‘Oh, no it isn’t’ / ‘Oh, yes it is’…

Most legal documents are written with numbered paragraphs. For example:

1. Mr Smith worked for Grindles Ltd as an assembler. He was employed between 21st September 1998 and 3rd December 2007.
2. In September 2007 Mr Smith began experiencing difficulties with his left leg, which affected his mobility. His GP diagnosed him with early onset arthritis and referred him to a specialist consultation, Dr Hobbs.

The great advantage of this system is that it allows easy reference to specific parts of documents. If all of the witness statements have numbered paragraphs it is easy to identify individual parts of the evidence. This is extremely useful during the hearing. Witnesses can be referred to what they, or others, have said; the tribunal can be reminded of particular evidence and so on. And the same applies to other types of documents. It is useful to be able to reference parts of the ET1 or written submissions easily.

It is therefore well worth getting into the habit of using numbered paragraphs in any legal document other than a short letter.

There is nothing terribly complicated about doing this, but the following guidelines may help you avoid common pitfalls:

Use an automatic numbering system

Word processing programs, such as Microsoft Word, have automatic tools for numbering lists. It is worth spending a few minutes learning how to use them. This will save time and effort, since otherwise adding, deleting or splitting paragraphs means you have to manually renumber the whole document.

Minimise sub-paragraphs

The convention in legal documents is that sub-paragraphs are numbered as follows:

1. 3. Paragraph
1. 3.1. Sub-paragraph
1. 3.1.1 Sub-sub-paragraph

The problem with this is that it is easy to get yourself in a position where you frequently need to write or, worse, say things like “See paragraph 3.3.4.” This makes referring to paragraphs difficult and complex – defeating the point of paragraph numbering in the first place.

It also creates difficulties for the reader, because they have to keep track of the structure of your document.

The main cause of excessive sub-paragraphs is that the writer uses them wherever the next paragraph follows on from a previous idea. For example:

1. 9. The dismissal was automatically unfair, because the reason for dismissal was that Ms Hendricks had made a protective disclosure.
1. 9.1. A statement made by an employee to her employer is protected, if she reasonably believed that the information tends to show that a criminal offence has been committed or that a person has failed to comply with any legal obligation to which he is subject.
1. 9.1.1 Ms Hendricks’ statement that she believed that the companies accountant was siphoning money from client accounts and the evidence she produced in support of this allegation met this test.

There is no advantage to using sub-paragraphs in this way. The information would be better presented as paragraphs 9, 10 and 11, without indentation or sub-numbering.

A more appropriate use of sub-paragraphs is to present a list of information. For example:

1. 17. After raising a grievance Mr Jones was subject to further harassment on the basis of his race:
1. 17.1. On the 3rd December 2007 Mr Smith told him that he should “go back to where you came from”.
2. 17.2. On the 6th December 2007 Mr Smith, referring to Mr Jones’ work “This is rubbish, but what can I expect?”.

Do not number headings

Many people attempt to number headings as well as paragraphs. This is a mistake.

Firstly, it is very rare that you will want to refer anybody to a heading, so the numbering is unnecessary. Secondly, numbered headings make the sub-paragraph numbering problem worse. For example:

4. Unfair Dismissal

1. 4.1. Procedural Fairness

1. 4.1.1. The dismissal was procedurally unfair because the respondent failed to follow the statutory dismissal procedure.

Avoid bulletpoints

Bulletpoints are an alternative to paragraph numbers. For example:

• The dismissal was procedurally unfair.
• This dismissal was substantively unfair.
• The dismissal was an act of discrimination

The problem with bullets is that that you cannot refer to them directly. This forces you into phrases like “The second bullet from the bottom on page seven”. It is more sensible to stick to paragraph numbers.

Do not number quotes

You will often want to quote other documents in your writing. Quotes should be indented, but not numbered. For example:

23. The correct approach to mitigation of loss was set out by Lord Justice Sedley in Wilding v British Telecommunications [2002] ICR 1079:

1. In other words it is not enough for the wrongdoer to show that it would have been reasonable to take the steps he has proposed: he must show that it was unreasonable of the innocent party not to take them.

If you want to refer to the quote, you can say “The quotation at paragraph 22″.

Your claim form will be one of the first things that the tribunal reads, so it is an important document. If the story you tell there is not complete, easy to follow, and convincing, you will start at a serious disadvantage. The main narrative part of the claim form that you fill in is box 5.1 for an unfair dismissal, box 6.2 for discrimination.

It is probably clearest if you divide the content of this into two main sections. Tell the story in the first part; pin on the legal labels in the second part.

1. Tell the story

Structure is important. It is much harder to follow (and therefore also to believe) a story that jumps around in time and where the reasons why things happened are not clear. Just write down the things that happened that form the basis of your claim, in the order in which they happened (that is to say, in ‘chronological’ order), and in numbered paragraphs.

You don’t need to go into huge detail here. The point of this document is to tell the tribunal what you say happened that gives you a right to compensation or some other remedy. You don’t have to tell them all about why they should believe your version of what happened: you will have a chance to do that later in your witness statement. Just tell them what happened. But you do need to tell them everything that you want to be compensated for: so don’t leave out anything that your employer did that you think was an act of discrimination, or a breach of contract, or in an unfair dismissal case, everything that was wrong with the way they went about making the decision to dismiss you.

At this stage, you don’t need to talk about the law at all. Don’t say ‘this was sex discrimination because… ‘ or ‘this was unfair because…’ – just write down the facts, in order.

Make sure the story doesn’t have any puzzling gaps in it. That is hard to do with a story that your own head is full of, so if possible, get someone else to read it and ask them if they understand what you say happened, and whether it leaves them wanting to ask ‘But why…?’ at any point.

2. Pin on the labels

Once you have finished telling the story, say what you want the tribunal to make of it. This is the moment to spell out what your claims are, in legal terms. It isn’t the place for legal argument – you don’t have to quote cases or recite bits of legislation – but you do need to explain whether you say the things that the respondent did amount to sex discrimination, or race discrimination, or disability discrimination, or unfair dismissal, or a breach of contract (and so on).

If you say you have suffered discrimination, you will almost certainly have to explain a bit more: you will need to say whether you think you have suffered direct discrimination (they treated you worse because of your sex, race etc.) or indirect discrimination (they applied a provision, criterion or practice to you that put you at a disadvantage compared to members of other groups, and they can’t justify it), or discrimination by way of victimisation (they treated you badly because you had raised other complaints of discrimination previously) – and so on.

This part can get quite complicated. Often you won’t know for sure which is the best way to put your claim. You may have to draft alternative claims – this was direct discrimination on grounds of sex, but if it wasn’t, it was indirect discrimination on grounds of sex; then again it may have been victimisation. But when you come to write this part, your task will be easier if you have set out the story clearly in numbered paragraphs first, because you will be able to refer back to those paragraphs and say things like ‘In doing the acts referred to at paragraphs x to y above, the Respondent treated the Claimant (or if you prefer ‘my employer treated me’) less favourably than it would have treated a man in the same circumstances.’

George Orwell put the more general point (of which ‘aforesaid‘ is a special case) in his essay Politics and the English Language (1946):

Here is a well-known verse from Ecclesiastes:

I returned and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all.

Here it is in modern English:

Objective considerations of contemporary phenomena compel the conclusion that success or failure in competitive activities exhibits no tendency to be commensurate with innate capacity, but that a considerable element of the unpredictable must invariably be taken into account.

This is a parody, but not a very gross one. It will be seen that I have not made a full translation. The beginning and ending of the sentence follow the original meaning fairly closely, but in the middle the concrete illustrations — race, battle, bread — dissolve into the vague phrases ‘success or failure in competitive activities’. This had to be so, because no modern writer of the kind I am discussing — no one capable of using phrases like ‘objective considerations of contemporary phenomena’ — would ever tabulate his thoughts in that precise and detailed way. The whole tendency of modern prose is away from concreteness.

Now analyze these two sentences a little more closely. The first contains forty-nine words but only sixty syllables, and all its words are those of everyday life. The second contains thirty-eight words of ninety syllables: eighteen of those words are from Latin roots, and one from Greek. The first sentence contains six vivid images, and only one phrase (‘time and chance’) that could be called vague. The second contains not a single fresh, arresting phrase, and in spite of its ninety syllables it gives only a shortened version of the meaning contained in the first. Yet without a doubt it is the second kind of sentence that is gaining ground in modern English. I do not want to exaggerate. This kind of writing is not yet universal, and outcrops of simplicity will occur here and there in the worst-written page. Still, if you or I were told to write a few lines on the uncertainty of human fortunes, we should probably come much nearer to my imaginary sentence than to the one from Ecclesiastes.

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.