New year. Same cases. Some new cases too. Here’s 12 things to bear in mind or try this year when litigating from Henry King of 12KBW.
Litigating
1. Be nice to Litigants in Person. We appreciate that this can sometimes be easier said than done, particularly if an individual has been abrasive or indeed rude. However, two things spring to mind: When representing the Respondent, Claimant LIPs on the other side have often lost their livelihoods. During the Covid-19 era, that is even more stressful than it ordinarily would be. Anything you write (or they write) could be put in front of a judge.
2. Robust costs warning letters are to be of last resort. There is a time and a place, but it is not often and not as a matter of course. Such a letter polarises positions which might be resolved in other manners.
3. Work as a team. Not necessarily with lawyers. Bounce ideas around. More brains equal more thinking and more opportunity for a lightbulb moment.
4. Make a list of issues at the start. When drafting Grounds of Complaint / Response, make a private list of issues as you go. This will prove inordinately helpful when it comes to drafting witness statements and considering the evidence as a whole whilst ideas are fresh in your mind.
Settling
5. Kindness costs nothing less. In order to sweeten a deal, write a good reference and include it. Mutually agreed upon references are often devoid of content and amount to little more than “X worked here.” An extra 15 minutes’ thought and pen to paper writing a more personal and better reference or apology can often turn no deal into a deal.
6. Try a time bomb. Try two. In Employment Tribunal litigation where Part 36 offers are not available, a method of potentially settling a matter is to make not one time limited offer but two. A much lower one open for acceptance up and until (say) the end of witness statement exchange, but a higher one open for acceptance for 14 days. Whilst at first blush, this might feel like giving and giving, it puts you in as close position as you can get and you will be surprised at the results. In any event, always put a deadline on offers.
7. Collaboration is often more effective than confrontation. Avoid entrenching positions. See what the parties can do together to work out a solution. “How” is often better than “why”. Work out what the other party’s client wants, and figure out a way that this can be achieved together.
8. Wait an evening before sending off an offer/letter. Draft it. Close it. Do something completely different. Wait until it is completely off your mind before looking at it again. Not only will you catch more typos, but it is much easier to tone down (or up) or make improvements a day later.
Wellbeingt
9. Take time off. If you have annual leave, use it. All of it. If you are self-employed, work less. The chief regret of many lawyers is Sunday Homework Club and not spending enough time with their nearest and dearest. Plan your life around time off, not time at work. In any event, use 10 minutes of your day to do something you love whether it is reading a book, listening to Adele or playing video games.
10. Swap cases. Got a case that you absolutely dread to open? Every email gives you that horrible feeling in your stomach? Find out if it is suitable or possible to switch to a different litigator. Ask. The worst anyone can say is no.
11. Motivation is a doing thing, not a thinking thing. You do not and will not “think” yourself motivated. Motivation to do something is an active process of doing the thing. If you are struggling to get going in the morning/afternoon/always, try the pomodoro method (20 minutes on, 5 minutes off). Close your emails (it is only 20 minutes) and get something done.
12. Walk. Get outside and take a walk. It only need be 10 minutes. It does not need to be every day. If you are using it to muse an idea, take a small notebook as opposed to your phone. 10 minutes of clarity without your phone will often lead to more lightbulb moments.
employment & discrimination 