Tribunal Tactics. Peter Woodhouse

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1 Tribunal Tactics Peter Woodhouse

2 Programme The claim and the defence Preparing witness statements Negotiation The hearing process Giving evidence and thinking like a lawyer

3 The claim and the defence Employment Tribunal (Constitution & Rules of Procedure) Regs 2004 ET1 Notice of Application ET3 Notice of Appearance Name, address Whether resist and what grounds Key facts and law NOT a witness statement Pleading to rubbish General traverse Directions

4 Witness statements Once the ET1 and ET3 have been filed each party will set about preparing their case. A main aspect of this is the preparation of witness statements. The witness statement tells the story of what happened in the witness s own words bringing out the salient points to support the case And damage the opponent s case

5 Tips Consider carefully which witnesses to call missing relevant witness adverse inference by tribunal If you have a choice consider are any particularly sensitive, will they stand up to cross-examination? Use hearsay evidence sparingly Avoid making assertions in statements that witness cannot back up or is unsure of Ensure witness can attend hearing in person Ensure statements bear in mind the order witnesses will be called in

6 Tips (2) Tell the story in the witnesses own words Break up the statement with numbered paragraphs Ensure consistency with other documents and witness statements (especially dates and times) Cross reference the statement to the hearing bundle Use headings (e.g. introduction, the dismissal, the appeal, conclusion)

7 Negotiation

8 What is negotiation? Everyone negotiates something everyday. Negotiation is a basic means of getting what you want from others. It is a back and forth communication designed to reach an agreement when you and the other side have some interests that are shared and others that are opposed.

9 Stage 1 Preparation Consider what negotiating type you will be Take instructions from the budget holder Manage expectations Advise on and agree the negotiating strategy Establish your BATNA Establish the bottom line

10 Stage 1 Preparation (2) Investigate other solutions Do a cost-benefit analysis of each alternative Consider the execution of all alternatives Work to a structure Consider what position you will adopt

11 Stage 2 The process Deal early on with what brings you together rather than what draws you apart Find something small on which you can agree first Find things equally balanced that cancel each other out Keep a fluid agenda Try not to negotiate in front of the decision maker Appreciate that money can come from different pockets

12 Stage 2 The process (2) If you wait long enough someone might propose vaguely what you want When negotiators back away from promises they may become more amenable to other compromises Initiate a change of atmosphere Move away from the traditional zero-sum approach and use the win win/expanding the pie approach Consider whether to initiate a crisis

13 Stage 3 Completion This may involve a mini negotiation itself. Be aware that some negotiators try and add on small requests which may be easier to grant so as to avoid destroying the deal. Ensure that all formalities are complied with e.g. comprise agreement or COT3 Settlement can be at any time prior to a decision

14 Giving Evidence

15 Privilege Legal professional - client to lawyer for legal advice Litigation Between party and a third party if in contemplation of litigation Dominant purpose Waiver The HR professional

16 Do you need an expert? need when specialised area of knowledge will assist fact finder to understand evidence or to determine a fact in issue pre-instruction need provisional case theory decide relevant discipline on what issues?

17 Thinking like an advocate

18 The testimony Examination in chief Supplementary questions Witness statements Cross-examination Re-examination

19 Aims and format of examination Aims establishing your case making evidence clear, memorable and persuasive undermining the opponent s case Format interrogative dialogue

20 Types of question Leading/non-leading question? Leading suggests the answer in the question Why control Non-leading words; how, what, why, when, where, describe Leading as a relative concept Focused/diverse questions

21 Basic rules Know your objectives and how this witness will help Logical order (not necessarily chronological) Put your case (xx) Use primarily leading questions (xx)

22 Methodology xx Eliciting favourable testimony consensus, assistance, omission Developing your theory of the case; putting your case Limiting the testimony. - Stress what witness did not see/do - Highlight absence of matters would expect to see

23 Methodology xx (2) Discrediting the testimony. Does not mean showing someone as a liar but that the evidence is less favourable/reliable Limits of perception (crowd) Limits of memory: details Limits of communication, i.e. articulation, interpretation Discrediting the witness

24 Techniques Slow down on important segments Avoid compound questions Avoid nervous fillers End on a strong point Loop-backs/using the witness answer of your next question

25 Techniques (2) Conditioning witness to give just yes or no Elicit facts not conclusions (or have a strategy to deal with adverse conclusion) Only rarely ask a question where you don t know the answer Don t argue with the witness Develop impact areas

26 Techniques (3) Turn one question into several questions Avoid emotion unless simulated Not a cross examination Do not re-state evidence in chief save guidance

27 Group exercise Mr Humpty Dumpty v The Kings School

Guidance for tribunal members on deciding the facts of a case where the doctor whose fitness to practise is in doubt has raised concerns locally

Agenda item: 17 Report title: Report by: Action: Guidance for tribunal members on deciding the facts of a case where the doctor whose fitness to practise is in doubt Anna Rowland, Assistant Director, Policy,