I have represented a good deal of clients in the Workplace Relations Commission and Labour Court over the last 10/12 months. In that time period I have observed what I consider to be 3 significant mistakes at those hearings.
You might learn something from them; I know I have.
Let’s take a look, shall we?
1. Asking too many questions in cross-examination
I acted for a client-an employee-in the WRC who had a great story to tell.
I took him through direct evidence and this was his opportunity to tell his story. My job was to ensure he got to tell all his story in the most sympathetic light to his case.
I did an average job but did leave out two very important questions. These 2 questions were vital pieces of evidence and left a couple of gaps in my client’s evidence.
I need not have worried for too long, however, because the HR representative for the other side (the employer) did my job for me when he was cross examining. He asked the questions that I had forgotten and my client took the opportunity with both hands and plugged the holes in his original evidence.
It is arguable that this was even better than if I had asked the questions because the fact that the answers came out in cross examination may have given the evidence even more credibility.
The big mistake? The HR representative for the other side asking too many questions.
Sometimes the best thing you can do in cross examination is shut up and sit the hell down.
Don’t pay any heed to Rumpole of the Bailey setting a fiendishly clever trap for a witness; don’t mind the cross examination scenes you see in TV crime dramas or Top Gun when Tommy Lee Jones cross examines Tom Cruise.
These pieces of storytelling or theatre are just that and should be recognised as such.
The lesson? Don’t ask questions in cross examination for the sake of hearing your own voice; sometimes the best thing you can do is shut up.
2. A stray document
Another mistake I encountered was being given a bunch of documents by the representative for the other side and finding a document-a letter-which was of immense value to my client’s case and which we did not know existed.
And even if we knew it existed we would not have had any right to it as the other side could have claimed it was entitled to legal privilege.
But here it was amongst a huge bunch of the usual stuff like a diamond in a pigsty.
The value of the document was that it showed the other side-the employer-was told something by a professional advisor, did not act on it and this failure to act ultimately led to my client’s job loss.
This went to the heart of our claim for unfair dismissal.
The mistake? We should never have know of the existence of this document, never mind come into possession.
3. Failing to settle a case
This case involved a number of employment related claims at the WRC (Workplace Relations Commission). But there was also a personal injury claim in being.
The HR representative for the other side (the employer) recognised that our case was a very strong one and the signals from the Adjudicator was that they would be well advised to talk to us with a view to settling. We were well ahead.
We took a break and negotiated for a little bit and there was not a huge difference between us in the end about the money stuff but we did not agree.
The mistake, in my view, was the the HR representative failed to recognised that if the case was settled it would have been on the basis that all claims arising from the employment were settled.
This would have included the Personal Injury claim. This is very significant.
This would have been a great piece of work for his client, the employer, and would have given him a great deal of comfort and certainty. Personal injury claims, if they go against you, can be expensive.
But the HR person seemed unable to recognised this value, or did not have the competence or confidence to do so.
A relatively small amount of extra money would have settled the whole shooting match-that is, all claims arising from the employment, including the personal injury claim.
Instead the hearing went ahead and we won a decent award. And the Personal Injury claim is still in being and will be pursued.
We all make mistakes but the best thing we can do is learn from them, file away the lessons, and move on with confidence that we will not make the same mistakes again.
Hopefully I will avoid these 3 mistakes that I came across in the last 10/12 months.