Facing Vader

A common experience in litigation is nervousness about facing the other side in tribunal.

This can happen to almost anyone. Litigants in person are often intimidated if their opponent is a lawyer. A CAB adviser might be nervous of specialist counsel. And there are a few QCs everyone is a bit scared of.

Unfortunately, these fears are, at least to some extent, justified. Representation will help the side that has it; and the better the representation, the more it will help. All other things being equal, a litigant with an excellent representative will be more likely to win than one who isn’t represented.

The reasons for this are simple, if unfair. The better the representative the better the case will be presented. The right points will be taken, arguments will be presented persuasively and, perhaps most importantly, witnesses will be cross-examined effectively.

In general, an experienced lawyer will do all of this better than a litigant in person or lay-representative. People who become lawyers are likely to have a certain amount of aptitude for the job. Then they are trained, both in the law and in how to run a case. Finally, they have a good deal of experience in representing clients.

At the extreme end, this means that you may find yourself facing an outstandingly clever person with a natural talent for advocacy who has spent years in practice, honing their skills. It is perfectly rational to be nervous about this.

There are, however, a few things to bear in mind.

Most importantly, other things are never completely equal. The single most important factor in deciding the result of a case is what actually happened. Nobody can turn a weak case into a strong case or vice versa. If on learning that you were pregnant, your employer sacked you on the spot and then sent you a letter complaining of your disloyalty in putting family before your job, then you will win your unfair dismissal and sex discrimination even if your employer is represented by the most brilliant QC in the land.

What good advocates can do is move the probabilities about. If the chances of winning are more or less 50 / 50, good representation might make it 60 / 40. Similarly, when dealing with remedy, representation might make the difference between an award of £4,000 and £7,000. This is still important, but a much less scary way of looking at it.

Also remember that your opponent’s ability and experience is to a large part absorbed by dealing with things that you do not have to do. Lawyers do not deal with one case at a time. They deal with dozens, or fifty. A great deal of their work is mastering the facts and law relating to all these cases. As a litigant in person, you don’t have to do any of that. You know your case inside out, because it is your case.

On the other hand, as a litigant in person, or even an inexperienced advocate, you do have some advantages. The tribunal will probably cut you more slack, and they will expect to do more work themselves. They will expect you to explain why you think your dismissal was unfair or how you were discriminated against. But they will also expect to do a lot of the work in translating your account into legal language. Similarly, they will expect to have to engage more closely with the evidence, even examining witnesses if necessary, than they would if you were represented.

And finally – if you do find yourself facing someone with a fearsome reputation, consider this. Lawyers with fearsome reputations generally charge fearsome fees. This has two potentially helpful implications: first, your employer must be seriously worried to be spending this much defending your case. That means they think you’ve got a good case. Secondly, it pushes up the settlement value of your case: if your claim is listed for a 10 day hearing and your employer has instructed a barrister who doesn’t get out of bed for less than £3,000 a day, that’s £30,000 they won’t have to spend if you agree to settle the case.