TRIBUNAL ADVOCACY Doug Humphreys Principal Member Veteran’s Review Board

Advocacy: the art of gentle persuasion ? The most complete and happy victory is this: to compel ones enemy to give up his purpose, while suffering no harm oneself. Count Belisarius (c AD505- AD565) The most complete and happy victory is this: to compel ones enemy to give up his purpose, while suffering no harm oneself. Count Belisarius (c AD505- AD565)

Defining Aspects of Tribunals Not courts, usually for a good reason.Not courts, usually for a good reason. May have or not have legally trained members.May have or not have legally trained members. May have subject matter experts as part of a multi- person panel.May have subject matter experts as part of a multi- person panel. Rules of evidence may or may not apply, but are still a good guide when making submissions as to the weight to be given to material.Rules of evidence may or may not apply, but are still a good guide when making submissions as to the weight to be given to material. May have time constraints.May have time constraints. Object of a tribunal is generally dispute resolution that is fair, just, economical, informal and quick.Object of a tribunal is generally dispute resolution that is fair, just, economical, informal and quick.

Preparation Be aware of and comply with the case management procedures used in the particular Tribunal.Be aware of and comply with the case management procedures used in the particular Tribunal. If you have not been to the tribunal before, sit in on hearings if you can or, if you cannot, ask someone who has previously appeared.If you have not been to the tribunal before, sit in on hearings if you can or, if you cannot, ask someone who has previously appeared. Be sure of what precisely the outcome you are seeking is. Is it reasonable, is it feasible ?Be sure of what precisely the outcome you are seeking is. Is it reasonable, is it feasible ? Get instructions well in advance as to what is the client is prepared to accept by way of settlement.Get instructions well in advance as to what is the client is prepared to accept by way of settlement.

Preparation Continued Prepare the case thoroughly.Prepare the case thoroughly. What evidence do you have, what additional evidence do you need and what other evidence is available to assist.What evidence do you have, what additional evidence do you need and what other evidence is available to assist. If witnesses will be called, always conference with the witnesses well in advance so you know what their strengths and more importantly what weaknesses are. Ask all the hard questions in conference.If witnesses will be called, always conference with the witnesses well in advance so you know what their strengths and more importantly what weaknesses are. Ask all the hard questions in conference.

Preparation Continued In preparing the case, think about what the strengths and weaknesses of your case are. Ask yourself, if I was on the other side, what would I see as the issues.In preparing the case, think about what the strengths and weaknesses of your case are. Ask yourself, if I was on the other side, what would I see as the issues. Prepare your case so that you have a ready answer to what the other side might raise as issues.Prepare your case so that you have a ready answer to what the other side might raise as issues. Know the Tribunal members, what is it that interests them. What do they look for in a case?Know the Tribunal members, what is it that interests them. What do they look for in a case? Prepare written submissions, even if they are dot points.Prepare written submissions, even if they are dot points. Make sure the client understands a Tribunal is about delivering lawful outcomes, not “justice”. Reality check with your clients.Make sure the client understands a Tribunal is about delivering lawful outcomes, not “justice”. Reality check with your clients.

Prior to the Hearing Always check that your client knows precisely where they have to be and at what time.Always check that your client knows precisely where they have to be and at what time. Talk to them about what they are going to wear.Talk to them about what they are going to wear. Make sure you, the client and any witnesses are at the Tribunal early. You may get an early hearing if others are late.Make sure you, the client and any witnesses are at the Tribunal early. You may get an early hearing if others are late. Make sure the client and you have exchanged phone numbers in case there are problems with public transport and the like.Make sure the client and you have exchanged phone numbers in case there are problems with public transport and the like.

Prior to the Hearing If settlement is an option, talk to the other side. They may be as keen to get away as you and the client are. Remember, time to a busy professional is money.If settlement is an option, talk to the other side. They may be as keen to get away as you and the client are. Remember, time to a busy professional is money. Always confirm settlement instructions in writing with the client.Always confirm settlement instructions in writing with the client. Be realistic with the client as to the benefits of early settlement.Be realistic with the client as to the benefits of early settlement.

In the Hearing -The Beginning. Remember, the Tribunal may have limited time to devote to your matter. Do not get into excessive detail in outlining the case.Remember, the Tribunal may have limited time to devote to your matter. Do not get into excessive detail in outlining the case. Tribunal members will generally want to know what issues are disputed and what are agreed between the parties.Tribunal members will generally want to know what issues are disputed and what are agreed between the parties. Tribunal members will want to know what is the precise outcome you are seeking.Tribunal members will want to know what is the precise outcome you are seeking. Tribunal members will want to know how long the hearing is estimated to take to take.Tribunal members will want to know how long the hearing is estimated to take to take.

The Case If the rules of evidence do not apply, do not make technical objections. It is all really a matter for closing argument as to what weight should be given to the evidence.If the rules of evidence do not apply, do not make technical objections. It is all really a matter for closing argument as to what weight should be given to the evidence. Lead with your best points- do not adopt the scattergun approach.Lead with your best points- do not adopt the scattergun approach. Tribunal members appreciate an economy of approach by representatives.Tribunal members appreciate an economy of approach by representatives.

Closing Tribunal members generally understand what the law is, don’t lecture them on it.Tribunal members generally understand what the law is, don’t lecture them on it. Outline from your prepared notes what are the issues the Tribunal member will need to decide and why, on the evidence you have presented, they will find in your favour.Outline from your prepared notes what are the issues the Tribunal member will need to decide and why, on the evidence you have presented, they will find in your favour. At the end of your closing, always ask if they have any issues they would like clarification on, that is, encourage them to let you know what they are thinking.At the end of your closing, always ask if they have any issues they would like clarification on, that is, encourage them to let you know what they are thinking. Do not be concerned if they wish to hear from the other side first.Do not be concerned if they wish to hear from the other side first.

Closing Be prepared to hand up to the bench a copy of the written submissions you prepared prior to the hearing. It will generally assist the Tribunal member in writing the decision or delivering an oral decision and clarify, when they are considering the decision, what your argument is.Be prepared to hand up to the bench a copy of the written submissions you prepared prior to the hearing. It will generally assist the Tribunal member in writing the decision or delivering an oral decision and clarify, when they are considering the decision, what your argument is. Have copies of any precedent decisions you rely upon available to hand up, together with a copy for the other side.Have copies of any precedent decisions you rely upon available to hand up, together with a copy for the other side. Your standing as an advocate who is respected and trusted by the bench is vital in your capacity to properly represent your clients. Never oversell a case. It destroys trust.Your standing as an advocate who is respected and trusted by the bench is vital in your capacity to properly represent your clients. Never oversell a case. It destroys trust.