Things to know when you are dealing with a tribunal
Brennans solicitors
Lawyers - Property, commercial, disputes, Wills and estates
Brennans solicitors
Lawyers - Property, commercial, disputes, Wills and estates
Brennans solicitors Lawyers - Property, commercial, disputes, Wills and estates
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Paul Brennan is the principal of Brennans Solicitors, a law firm located on the Sunshine Coast, Queensland, Australia, where he practices with his wife, Diane in the areas of business law, litigation, property and wills/estates.
Over the years, by working in various countries, he noticed how similar the law can be. He set out to explain the law in a simple and often humorous way.
He has written several books about law and lawyers.
Further details of his profile can be found on Linkedin.
Tribunals, offering a cheap, informal alternative to court proceedings, are on the increase. They are used by professional bodies to deal with professional misconduct, or government agencies and other industries, such as estate agents, to deal with customer complaints.
It is becoming popular for tribunals to exclude lawyers. Why? Well, lawyers can be nitpicky, cantankerous individuals who argue about everything, think they always know best and are forever telling everyone what to do. There are exceptions (my wife for instance) but generally this is the case.
In these “lawyer free” tribunals you are expected to front up, say your piece and accept the decision. This can be quick, cheap, effective justice at its best, unless, of course, you lose.
Tribunals seem designed to find you guilty in a nice way and compared to being hung, drawn and quartered, they do a very good job. Added to this, something very odd happens to ordinary men and women when they are asked to judge their fellow man (or woman). That is, they get all “judge like” (this is not good).
So where does this leave you, if you are summoned to appear before a tribunal?
Well, if you are prepared to go with the flow, then tribunals combined with humble acceptance can bring closure to your issues. But, if you are an uncooperative, difficult person who is not prepared to put your head on the block or at least “grin and bear it”, you need help. Fortunately, a lawyer can look at the evidence against you and advise you how to run your case.
Therefore, even though your lawyer will not get a ring side seat, he or she will be an essential part of your “six point plan for beating the wrap”.
Here it is:
1. Obtain the rules under which the tribunal is conducted which are often on a website. There will be rules. Just as you would be at a disadvantage playing Snakes and Ladders without knowing the rules, the same is true of tribunals.
2. Obtain from the tribunal written details of the case against you. This should be in writing and readily available, well in advance of the hearing. If the case against you is not clear, ask the tribunal in writing for further particulars. I suggest that you do this sparingly so as not to point out errors and improve the case against you. Nevertheless, you do not want the goal posts being moved during the hearing or leave the case against you vague so that the tribunal members can make it up as they go along.
3. Make a formal-looking written submission dealing with the evidence against you, putting your evidence in the best light. This has four advantages:
a) Your lawyer can do it for you.
b) It may be used as the basis for the tribunal’s written decision.
c) It will stop the tribunal from misunderstanding your evidence or fudging/ignoring any inconvenient point which happens to be in your favour.
d) It will show that you have consulted your lawyer and imply that if you do not get a fair go there will be trouble i.e. an appeal, criticism or some other type of ungrateful behaviour.
4. Interview any witnesses giving evidence against you and see if you can take a further statement. Legally there is nothing wrong with this as there is no property in a witness. Often witness statements are written by your opponent who “guilds the lily” and puts in a few thoughts of his own. A second statement from the same witness revealing holes can undermine the case against you.
5. Get statements from any witnesses who can give evidence in your favour. Do not write the statements yourself as they may look like your words rather than the witnesses (this is a common mistake). Taking statements can be time consuming and costly. In an ideal world, statements would be taken in the form of a statutory declaration. Nonetheless, most tribunals do not insist on this formal approach. If time or money is short, your lawyer can even take statements by telephone. He can then write an email of the telephone conversation and ask the witness to confirm what was said.
6. Just before you go into the hearing, give copies of your witness statements to your opponent and to each of the tribunal members. There may be objections to the late notice of the witness statements and your written submission. Nevertheless, tribunal members are reluctant to postpone tribunal hearings as they want to get on with it. They usually do not have the power to compel witnesses to attend; for them to exclude evidence or argument, however informal, may risk an appeal. They simply do their best with the evidence before them. You may find that your evidence, despite being informally obtained, gives you the advantage and is far better than no evidence at all.
With a lawyer as a manager/trainer are you going to win? Well, it is just like Rocky. You may not win every time but you will put up one hell of a fight. Also, you will find yourself getting better if there should be any sequels.
© Paul Brennan 2018. All rights Reserved.
Extract from "The Art of War, Peace & Palaver: The Contentious Guide to Legal Disputes"
