Gordon Turner explains how employment tribunals can be fertile ground for training, providing solicitors considering a move into advocacy with vital opportunities to hone their skills.
As a trainee solicitor, I spent a lot of time clerking cases. But I could only sit scribbling notes behind counsel for so long, and soon was gripped with the thought: shouldn’t I be doing some of this? It can be a leap for solicitors to take on advocacy … we can imagine that barrister are streets ahead of us, and sometimes this is not true. All things considered, there is no reason why we should not take at least some of our cases all the way to trial. The opportunities and fulfilment can be immense.
Experience as a solicitor advocate tells me that the balance between barristers and solicitors can sometimes even tilt in our favour. What we lack in adversarial training, we make up in other ways – our greater knowledge of the case, for example
On 9 May, I led a webinar at The Law Society entitled Employment tribunals - advocacy training for solicitors, on ways to improve your chance of succeeding and, equally importantly, to enjoy the experience of advocacy. The webinar forms part of the Law Society Advocacy Section’s annual webinar programme and is free for Section members to view again from the CPD Centre.
Employment tribunals, in particular, offer a fantastic opportunity to develop solicitor advocacy skills because of the very broad range of claims they hear. You can try your hand with a short preliminary hearing or a simple unfair dismissal. And as your confidence develops, there are other, more detailed issues you can tackle – TUPE, protected disclosures, discrimination etc - some of the issues in which are easily as complex as those heard in the higher courts. There is no upper limit on some claims and there are frequently matters of public interest thrown up, such as the social media explosion.
Experience as a solicitor advocate tells me that, taking all things into account, the balance between barristers and solicitors can sometimes even tilt in our favour. What we lack in adversarial training, we make up in other ways – our greater knowledge of the case, for example. Barristers often know nothing about a brief until late in the day and, in most cases, it is a sound knowledge of the facts that causes a panel to find for a party (they tend to know the law anyway).
I’ll admit that my early days as an advocate were terrifying. Nothing prepared me for the intensity of the courtroom: high expectations of nervous clients, stony-faced judges, and opposing counsel chivvying away constantly. With no advocacy training, I didn’t even know what I needed to know. Looking back, if I was to give one word of advice to my younger self: plan! Forget flowery language - I met an employment judge recently and his advice was, ‘don’t play to the gallery; there isn’t one’. Without a plan, you’re toast, as they say. Here are some basics I cover in the webinar:
This is the most exciting part of advocacy. Everything you do needs to satisfy the ‘what floats their boat?’ question. Nothing else matters. If you’re not persuading people, pipe down. Why should the panel members (remembering that only one is a lawyer) care to agree with what you have to say? I provide some core guidance on this in the webinar. Advocacy is a great way to hone your legal skills more generally; solicitors can become polarised knocking out cases from the luxury of our offices and taking our client’s cases at their absolute best and making presumptions and assertions without really having to take stock on whether we are in fact persuading anyone at all. The immediacy of advocacy makes us reflect on how our approach might cause others to agree with us (or how it might do the precise opposite!). This is a transferable skill. Once we understand how we are being perceived, all communications become part of the whole: reductive, convincing, fair and creditable. We are also more self-analytical. Knowing your worst point is probably more important than hugging the best one, because the panel will probably know what is anyway.
I am sure many a counsel has wished that their instructing solicitor had a little more insight into what is necessary for the endgame of a hearing, where the rule is less is more.
There will always be a role for good barristers. Some cases do need the specialist skills of counsel but, with so many downward pressures on employment lawyers these days, doing our own advocacy offers a seamless and more affordable service to our clients and some tribunal claims really don’t justify troops of lawyers. With a drop of 79,000 tribunal claims this year, clocking up a couple of days’ advocacy is also going to help meet those costs targets.
Gordon’s webinar, ”Employment tribunals - advocacy training for solicitors”, is one of the four inclusive webinars for Advocacy Section members in 2014. The webinar was recorded on 9 May 2014. Visit the CPD Centre to access the webinar