Advocacy in the Employment Tribunal - Dos and Donts

Hello. My name is Allison Hardin. Can I welcome you to this data law Webinar on employment tribunal advocacy. Some tips from me on the various stages off the advocacy process. What I'm gonna do is split the webinar into three stages. I'm gonna deal first with what I call argument advocacy that will involve any application or indeed submission. You make it the conclusion of unemployment trial to a judge on beginning you some pointers on how to structure that submission on make the various points that you wish to make on gonna go on very briefly to deal with examination in chief. Why briefly? Well, quite simply because we know now that all witness statements in the employment tribunal are taken as read unless the tribunal directs otherwise. So the actual advocacy that you will have to do to use to deal with your own witness is very much more limited than it was in the past. And finally, I'll give you some tips on cross examination. How toe tear apart that witness for the other side on, hopefully get them to make various concessions and agree with your version of events. Let's turn first, though, if we make to argument. Advocacy on You can use these particular techniques in any submission that you are making, whether it's a simple application for an adjournment or applying or making on application preliminary point as to whether someone is disabled or not, or the closing submission at the end of a case at what is on effective argument to a court. Well, what it is from your point of view is the Advocate is a Siris of structured propositions. All of those structured propositions are supported by reasons with the effect that it will persuade the employment tribunal to conclusions of fact and or law towards the desired result. The key element, in my view, often effective argument in closing submission. An employment tribunal. It's persuasion. Whether you are dealing with a single judge in an unfair dismissal case or a panel of three in, say, a discrimination case, the key key factor is persuasion. How can you be a persuasive advocate? How can you convince the three of those the three members or one member of the tribunal that in fact, your dismissal is unfair or the dismissal Waas fair? Very often I see, in my experience in the tribunal's too many representatives that forget that the closing submission is an art in persuasion. It is not simply a statement of position or a defense by the By the time you get to the closing submission in a case, what is set out in the particulars of claim in the defense will largely have become neither here nor there. What you're doing is you are focusing on the life contentious issues between the parties in the case on therefore, a persuasive argument is neither simply a list of facts nor merely a Siris of assertions. What your effective submission has to be is a Siris of assertions that are supported by reason, some of which are drawn from the fact. Indeed, some tribunal judges, especially on one day cases. I remember doing a one day case in front of employment Judge Karina Lash foot on. He made it quite clear to both advocates when we did our closing submissions at the end of the day, the evidence, the factual matters were fresh in his memory on, therefore we did not need to direct him to the evidence. What he wanted to hear was, in essence, why we were going to win respective cases. So let's deal with the persuasive argument a little bit more. What constitutes a persuasive argument? Well, go back something a few 1000 years to the writings of Aristotle on Aristotle. In his book, Rhetoric said that the effective argument contained three factors. Logos, ethos and pathos, logos being logic, ethos, being credibility on pathos. Being empathy on it's not gonna happen in every case. You're never going to come up with the perfect argument in every case that will persuade your tribunal. But if you can get logic, credibility and empathy into every submission you make, you will succeed and you will win more cases than you lose. Let's deal with Aristotle's three components in a little bit more detail. Firstly, logic. This speaks for itself. The various are parts of your argument. Must be logical in their structure. They must cohere. They must come together, and it must flow from the evidence. In other words, if there is on undisputed fact that a meeting took place on the 10th of January of 2000 and 17 and you're weaving that into your submissions, the submission you make about the meeting must be logical. In terms of logical reasoning. What you're hoping always to do is find the logical strength of your case on, by parity of reasoning, the logical weaknesses of your opponent's case. In other words, the argument should lead logically to the ultimate conclusion for which you contempt whether a dismissal is fair, whether a dismissal is unfair, whatever it is on a tip from me is this. And I got this from Judge and Ainsley Wallace, who's a judge in Australia. One of my fellow worldwide advocacy trainers is always when you're planning your closing submissions to focus on the because test or the white test. Wh why why, why is it that this is an unfair dismissal? Why is it that the claimant should succeed in her complaint of sex discrimination? Why was there a transfer of an undertaking? And if you actually think of it in that way, your speech will almost become the antithesis of what I call the Christopher Columbus submission. Firstly, Christopher Columbus, as many of you will notice, purportedly discovered America. But think off. Christopher Columbus is mentality as he set off on that voyage in his ship when he left port, he had no idea where he was going when he got there, he had no idea where he waas on. When he got back, he had no idea where he had been. Now turn that on its head and that gives you the structure for your submission. You need to give the road map to the judge of the sea chart to continue my analogy, tell the judge where you're going. When you get the judge to that point, tell him where is the supporting reasoning on there. Once you're in your concluding parts of your speech, tell the judge where he has been. E thoughts, on the other hand, refers to credibility. Credibility arises in two areas. Firstly, the credibility of the argument on that simply means does it make sense? Is it not necessarily logical? But it is the credible Is it? Common sense is understood by human understanding, but secondly, and perhaps more importantly, is your credibility as the arguer. It's very difficult for me to sit ups, give you some pointers as to what makes a credible advocate. But I can tell you some things that detract from the credibility of the argue on. These are as follows Firstly a lack of preparation. If you are going to be doing advocacy in the employment tribunal, you will do yourselves no favors through not thoroughly preparing the most effective advocates that the best advocates have analyzed that case. They have sweated blood for days, nights, hours, minutes doesn't care how long, but they will be properly prepared on. If you're not properly prepared, the tribunal may lose confidence in secondly, Never misstate the evidence or the law. If you are relying on evidence, please, please, please get it right on equally. If you're applying the law and you're making up advancing an argument or a proposition of law, make sure you get the law right. There is nothing that irks a tribunal more than a misstatement of the evidence or a misstatement of the law. Thirdly, a lack of cohesive structure. Hopefully, you won't have that because you've taken on board what I've already said about telling the judge what you're gonna tell him telling him and then telling them what you told them. Don't overstate the argument again. If you over egg the pudding with arguments, sometimes tribunals will become less minded to believe them and accept them off course, there will be some exceptions to this, but what you don't want to do is really pursue something for five minutes, 10 minutes. When you can actually make the point simply in a minute or two minutes and remember the most, the most simple advocacy is always the most effective. The final point I'd make that would detract from the credibility of the arguer is pursuing unbalanced and unrealistic arguments as opposed to making appropriate concessions very often in cases. Once the evidence has been heard, it's come out in a particular way. Does you no harm whatsoever to say to a judge at the outset of your submissions? Well, given the way the evidence has come out, I have to accept that there was now a dismissal within the meaning of Section 95 1 a of the Employment Rights Act on making that concession up front in a submission will, very often known you brownie points on will certainly improve your credibility as an arguer. Finally, pathos, empathy. The persuasive argument must be empathetic. You must engage with your listener, engaged with your judge and try and build up a connection with them, because once you do that, then they'll be more likely that they're going to accept what you're saying, and you do this through the use of sensitivity. You do it through the use of tact. Any submission you make to an employment tribunal will always be tactful. It will never be angry, will never be particularly over forceful. But it will be tactful on. You'll have commitment to the argument and passion for it in terms of the actual structure and basis of the argument. Never over ever begin a speech anticipating what is going to be set against you. George Hampel, one of the great advocacy trainers, now is very high up on his list of priorities in speech advocacy is the doctrine of what he calls primacy. Start with something that will grab the listeners attention from your own case. A strong point from your own case. Yes, later on in the submission, you can go on to deal with matters that are maybe against you in the other side's case. But don't simply repeat that argument. Deal with weaknesses where they arise. So putting it all together and adding in a fume or things apply logos, ethos and pathos. That's number one Structure the argument logically. Tell the judge what you're gonna tell them. Tell them. Tell them what you told them. Dont simply repeat the opposing argument applied primacy. Now watch your judge. You know, watch the reaction of the judge to things that you say. And if a judge asked you a question, answer it as best you can on make sure you answer the question. Don't try and waffle and avoid the question if you need to take a moment when the judge asked you a question to think about it, by all means say so. Madam, can I have a moment on by a moment? I mean 10 or 15 seconds, not two hours, but always keep an eye on the judge and responded to their questions. As best, you can try and develop a conversational style. The most effective advocacy where where one is making a submission is conversational in style, engages a dialogue with the judge. You want to be aware of the silent judge, the silent judges, the worst because you have no idea what in fact they are thinking. They may be thinking you're a total idiot. They may be thinking this is the best submission they have ever heard to try and encourage that dialogue with the judge. If you want to see an example of one of the greatest aspects of a conversational style that I've ever seen, if you go on YouTube on Key and Dina Rose Queen's counsel and watch her of the European Court of Human Rights delivering her opening remarks in a sexual orientation case, it is so beautifully crafted and so relaxed, it is a very effective piece of advocacy. Be tactful. I've mentioned that and speaking a pace that will enable the judge to absorb the points that you are making. Far too many advocates I see in tribunal go far too quickly. You need to develop that measured pace because with a slow pace comes persuasion and it sounds more effective. It has a deeper impact on the listener on, I suppose. The tip I would give to you if you think you are a naturally fast speaker is think of every judge in Tribunal member as having two distinct qualities. One, they're in their late eighties, and secondly, they are slightly hard of hearing. If you actually think of them in that way, that will slow you down and you will take great care to enunciate every syllable off every word and delivered at a pace that the tribunal will be able to absorb. So that's really all I want to say on argument advocacy. Follow those ideas and you should not go wrong. Let me turn now to evidence in Chief. This is I say, I'm going to spend very little time on because off the fact that a witness away most if not all the statements are now taken as read. But you still need to be aware off the formalities of calling a witness to give evidence. In most cases on the witness table, there will be a bundle off witness statements on what you do is you take the witness will sit down on the witness table, take the advocate to the part of the statement or to the page in the bundle of witness statements where their statement is on, then get them to confirm their full name and their address. Get them to have a look at this statement. Take them to the end of the statement, get them to confirm their signature and the date on then ask them if they've read it recently on whether the contents of that statement is true to the best of their knowledge on belief that deals with the formalities of putting this statement in. But of course, you may have in some cases, the need to ask a supplementary question on the witness may be to deal with an issue that has arisen on exchange of witness statements. Can I remind you that or any supplementary question you ask of your own witness must be a non leading questions? In other words, it must be a question that is structured in such a way for the evidence to come from the witness. It cannot be a leading question where the evidence is coming from you in the question on a useful rule of thumb is always to remember in supplementary questions that every question that comes out of your mouth begins with who, what, where, when, why, how describe or which those your trigger words on in the main. Most questions that start with those words will allow the witness to then give the evidence that they need to give, and this is something you can prepare in advance you don't instantly do this off the cuff. You will have analyzed the evidence beforehand and you will have a praised your witness that you're going to be asking to three supplementary questions on this is what they are. So the witness knows you're going to ask them. You know what you're gonna ask on? The question is drafted in such a way. So it's not to be a leading question. If it is a leading question and I am your opponent, Needless to say, I will be smiling sweetly. Onda objecting on. That's it. That's really all there is to examination in chief. Why? Because the tribunal will have read the witness statements. Can I turn for the remainder of the weapon are then to the concept of cross examination. This is where you, as the Advocate, are asking questions off a witness on the other side. What is the purpose of cross examination? Well, firstly, it's to put your case on particular issues to a witness. Secondly, in some cases is to make the witness cry, and thirdly, on bubble it's toe have fucked because in my opinion, cross examination is the best part off advocacy. When it works. There is no greater feeling in the world, but a few preliminaries on cross examination. Before I give you some tips on how you might approach cross examination in the employment tribunal, most lawyers cross examined badly all the time at no lawyer, in my view, in the Employment tribunal, Cross examines brilliantly all the time on no lawyer in the early stages of his or her career. Cross examines well at all. My reason for this is simple. To be an effective cross examiner, you need to have a mastery off three things first, a total mastery of what I call the rule of trial advocacy. That is a sound knowledge of the North, off the law of procedure, on the law of evidence as it applies to the employment tribunal. But I'm not gonna turn this session to a lecture on procedure or evidence. You can do that for yourselves. You can go out and read what there is to be read online on evidence law and procedural law so you can acquire that fundamental for yourself or, heaven forbid, in the year of our Lord 2018 actually go to a library on open a book on the Law of Procedure or the Law of Evidence. But I know that that's on trendy now, but that's totally on trendy because everybody does everything. Electronica. What's the second thing the good cross examiner needs? The 2nd 2nd thing is experience. I am totally persuaded, having taught advocacy worldwide, that you cannot be an effective cross examiner until you've got 55 0 cross examinations under your belt that gives your sea legs. You see how different witnesses reacted. Different types of questions. Two different styles of question. I usually have free styles of questions. First is me. I cross examines me because I am me. But sometimes in a sex discrimination case, if you're cross examining a managing director very often, it's quite good to go into the Hannibal Lecter routine on to lean forward and do the Anthony Hopkins voice and go very slow with your questioning. Do you know why he keeps their skins, Mr Managing Director or something like that? Because what you're trying to do is scare the witness and make them feel uncomfortable. On the third style I have is what I call the Colombo rooty. Some of you may recall the great TV Siri's from years Gone by, the late, great Peter Fault playing the dishevelled detective in the raincoat with a cigar on. What you do is you cross examine in a way that shows the witness that you haven't got the slightest idea about what's going on. But of course, up here, you know absolutely everything that is going on on. Do you leave the witness down the garden path? I don't necessarily think you have to do with Peter Falk action with the Chicago because that's your guy would set off the fire alarm. Yeah, anything like that leads them down the garden path and suddenly, within 12 10 questions, you've got them in the palm of your hand. The third thing you need, quite simply, his talent. You've got the talent or you haven't got the talent. You're either born with it or you're not born with it. And if you find in your advocacy careers that you haven't got the talent for cross examination, don't why be sad. There's nothing you can do about it. Maybe your talents lie elsewhere may be sitting in a dark room, drafting tax clauses or corporate indentured clauses or whatever it may be, but you'll find very quickly as to whether you have a talent for cross examination. So how do we actually do it? How does the cross Examiner actually go about cross examining? Well, in the time that I've got left, I'm going to give you some points rules. These rules were the original brainchild off the late great Irving, younger on American judge, who became on advocacy trainer at Nita, the National Institute of Trial Advocacy in America in the 19 seventies. And what I've done is I've taken Irving Younger's original rules of cross examination. I've changed some of them. I've updated some of them to be relevant to employment tribunal practice. On my words of advice to you, a very simple when you go out into the big, wide world and cross examine, never, ever, ever, ever, ever, ever, ever disregard or disobey any of these rules. Because when you do break these rules, anything can happen and you will find yourself in deep water. So Rule number one is quite simple. Be brief, short succeed. Of course, you will have done your analysis of the case. You will know the parts of the case that you need to challenge in cross examination on when you challenge them. In cross examination, you put the points and you stop too many times. I see cross examinations that go on on on on for, you know, minutes, hours, days however long it may be when in fact, the point you're trying to make can be made far more succinctly. For those of you at the beginning of your advocacy careers, there's another good reason for being brief on that. Is this that when you start cross examining for the 1st 2nd 3rd 4th up to 50th time, you can take it from me? You're doing a terrible job. Therefore, by parity of reasoning, the less time that you are on your feet cross examining, the less damage you will be doing to your own clients case. Believe me, I've been there. I know how it feels. So less is more cross examination is not a cook, not the invasion of Europe. It's a commando raid. You get to cross examine, you, put your questions and you stop. That's being briefed. The second rule is one fact per question. This is to ensure that every question you ask in cross examination is firstly short on. Secondly, contains only one piece of evidence on its to guard. Against this sort of question, Mr Maxwell, on the 10th of January of 2017 year arrived at work at 9:30 a.m. And park your car in the office car park, which is located immediately opposite the office building on the other side of the road. And having Patrick, are you locked? Your car got out of your car luxury car on walk 25 yards or so to the office building, which has a glass door. She went through and said, Good morning to Allen, who was on duty that morning at the security desk in you, then went to your office. That's right, isn't it? Now, the witness is not gonna be able to answer that question. What you want to do is break that question or indeed speeches. I would call it into its component parts on the 10th of January of 2017. You arrived at work at 99 30 a. M. Did you not? Yes. The first thing you did was popular car. Is that right? Yes. You parked your car in the office car park, didn't you? Yes. The office car park is located on the other side of the road to the office building. Yes. Having parked your car, you got out of your car? Yes. You locked your car? Yes. And then you walk to the office building. Yes. The office building has a glass door. Yes. You went through that glass door? Yes. So what it does is it controls the witness and it compartmentalizes the evidence toe. One fact question. It's far punchier, and it's far more effective. And it doesn't allow the witness any wriggle room. Rule number three Simple language. Plain words. As an advocate, you have to acquire the knack of cross examining using plain and simple words. There are, of course, exceptions. If one is cross examining an expert witness. One, of course, is going to use technical vocabulary. But the expert is familiar with that vocabulary. So how do we acquire the knack of plain and simple language? Was very simple. When you prepare your questions, cross examination when you're doing it on a computer screen or in manuscript, whatever you're doing, once you have written your questions, take a break go away and come back to it on read each individual question. And if you see that there is a question that is slightly complicated or use a slightly flowery language, just ask yourself, Can I ask this question in a simpler way? Is there a simple way of asking this question? I remember years ago when I started at the bar, I cut my teeth on road traffic cases in the county courts up and down the country, not relevant to employment off course. But nonetheless, in all of those in many of those cases, you heard advocates complicating what were very, very simple questions. I will be it. This is an example from examination in chief. Never did I hear an advocate say to a witness, How were you driving that? They wouldn't ask that they would think I'm an advocate. I need to be exhausting. I need to be flowery and therefore they would are serves to win. That's what did you then do with regards to the operation and control of your motor vehicle? That might sound exotic, but it's actually bad advocacy, simple language, plain words. There's a second reason because very off you may find yourselves cross examining someone who does not have the same intellectual intelligence as you on. If that is the case, what you want to ensure is that the witness understands every question you ask on the yardstick is to carry out a cross examination where on no occasion during that cross examination, a witness comes back to you with a would. You may not understand what you mean by that question, that battle. It means because, arguably, in that type of scenario, where the witness responds like that, the fault isn't the witnesses, but not understanding the question. The fault is yours for having asked it too complex. Rule number four Only leading questions never, ever, ever in cross examination, a question that begins with who? What? Why, when, where? How describe all which those the questions that we use for supplementary questions in chief. But in cross examination, every question must be a leading question. You, as the advocate, give the evidence in the form of a quick question. You are trying to put words in the witness's mouth, and if you carry out your cross examination correctly, the are the only two possible answers to every question you ask will be either yes or no, not What is your name? How old are you? Where do you live? Turn it around. Make it leading. Your name is John Smith, is it not? You're 43 years old. You live in Bromley. Your employment came to an end on the eighth of January. You attended a meeting on the seventh of Jerry. Whatever it may be. But the leading question means that you give the evidence. If you do ask an open question in cross examination. Who, What? Why went where? How describable. Which question that passes the range of the witness they can take over. They can say whatever they want. Ladies and gentlemen, in cross examination is not your job to let them say what they want. It's your job to make them say what you want them to say. And you achieve that via the leading question. Fifth tip. Always listen to the answer. This may sound somewhat trivial, but it is very important. I remember doing case in the Birmingham Employment Tribunal many years ago in front of employment. Judge Peters on it was a constructive dismissal case and I cross examined the claimant on the fundamental breach contract on. We've got to the issue of causation because, of course, in a constructive dismissal case, one needs to resign in response to the fundamental breach. And I ask the question of the witness, Mrs Jones, it's right is that the real reason you resigned was not because of the treatment, but because you wanted to move closer to your daughter in Scotland. And she said Yes. And I just moved on to my next question. I was listening to the answer. I started asking my next question, and Judge Peter said to Mr Hart, did you actually listen to the answer? Look, this gave and I said, Well, no, not really on. Then I put the question again. She gave the same answer to which point I went. Ah, and I made a submission of no case to answer in. The case was thrown out, So from time to time, witnesses will say the most extraordinary things. Make sure you are listening to rule number six. Don't quarrel with the witness. Remember that you are there to do a job. You are a professional, and you what you don't want to do is engage in a quarrel with the witness. Usually quarreling occurs in my experience in two ways. Number one the Advocate engages in is the verbal tennis match with the witness because they don't get the answer they want. You arrived at work at 9:30 a.m. Did you not? No, I didn't. Yes, you did. No, I didn't. Yes, you did. No, I didn't. Yes, you did. Judge Little in Sheffield once referred to This is the pantomime cross examination, rolled his eyes to the ceiling and said he's behind you. Try and avoid that sort of exchange. The question has been put. The witness has answered it. Move on the other area where court quarreling tends to crop up. It's where advocates forget this is cross examination, not examining crossly. Try Teoh. There are times where you have to be firm with the witness, but never go into an employment tribunal with the attitude that you are deliberately going to harass or Harang a witness with a fiery cross examination. It's unprofessional, and it's simply is less persuasive than a cool come cross examination that you might otherwise do. Rule number seven Avoid repetition. Try not to throw your leading questions. Repeat chunks of the evidence, by all means challenge the evidence. But don't simply take a paragraph of the witnesses witness statement on Put it to them again. If there's something you want to challenge, challenge the mind because there's a mentality that suggests that if a tribunal his peers will read something once they may believe it, they may not. If they hear or read it twice, they'll probably believe it. Three times. They'll definitely believe it, and four times nothing on God's Earth will persuade them. It is anything other than true. So always try to focus your questions in cross examination or not repeating the evidence. Of course, from time to time you will have to tee things up in order to put your killer point. But a long repeat of the evidence will get you nowhere. Number eight never asked a witness to explain anything. Why? Because invariable. If you ask a witness to explain something they invariably will on all the good work that you've done in cross examination will have been will have been cut cap to shreds. On it will be as though you've been in a different tribunal, cross examining on a different case. This goes hand in hand with only leading questions. If you all the questions you ask are leading, you will be less likely to ask a witness to explain something, no matter how curious you maybe to know what the answer is to the all the explanation. Maybe don't ask it. In cross examination, Number nine never asked a question to which you do not already know the answer. Don't go fishing in cross examination. All the analysis, all the preparation for a tribunal case needs to be done in advance. And again, no matter how curious you are, don't go fishing forward in cross examination. You can't what, by this rule never asked Question two weeks. You don't know the answer. I don't mean it's Don't ask unfavorable questions because I can put it to a witness that they were at a meeting on a particular day when they're going to say that there were, but I know what that answer is gonna be. I know they're gonna say that. So avoid that if possible, and finally avoid the one question. Too many develop an appreciation cross examination when the job is done, when when you've got all the information you need out of the witness. Don't go one question more that might give them the opportunity to destroy some of the good work that you've done already and again. Just bringing it back to the closing submission is part of your preparation. I hope that you'll be you'll be preparing in the right way. You'll be going to the end goal of the closing speech and then working backwards. So therefore your cross examinations will be focused. They will be focused on the salient issues in the case, which, hopefully will mean that you have a lot of fun and you get the results that you need. I thank you for your attention. I hope that's been useful on I wish you well in your employment tribunal advocacy in the future.