Why Law is Like Magic (and Why it’s Not)

The news of a new Master’s degree in Magic at the University of Exeter—due east of the Witch Museum in Boscastle, Cornwall—inspired this post; that and pondering the effect of Latin legal phrases such as the presumption of causation res ipsa loquitur (the thing speaks for itself).

As well as privileging dead languages, law is like magic because it’s ceremonial. Its agents dress up, often donning black robes, they employ titles and a strict hierarchy, there are arcane rules which operate with or without the knowledge and understanding of the participants, there are propitious and inauspicious times and seasons, it has a certain glamour, being one of the few disciplines still centred on the intellectual ability of categorical thinking, and it has far-reaching material consequences.

Law is not like magic because it’s not an irrational, unsystematic, culture-specific sprawling set of assertions based on childish and egotistical wish-fulfilment widely considered demonic. (Although modern-day lawyers might consider that an apt description of Chancery and certain Men’s Rights organisations have exactly that view of Family Law.)

But is the above a fair description of magic? There’s a distinct lack of an agreed definition for this widely disparate set of phenomena—or even any agreement over what they have in common. In The Two Towers, the second book of The Lord of the Rings trilogy, Galadriel, Queen of the High Elves, makes that plain to Sam the Hobbit, companion of Frodo:

‘And you?’ [Galadriel] said, turning to Sam. ‘For this is what your folk would call magic. I believe; though I do not understand clearly what they mean; and they seem also to use the same word of the deceits of the Enemy. But this, if you will, is the magic of Galadriel. Did you not say that you wished to see Elf-magic?’

^{Fellowship of the Ring Book II Chapter 7: “The Mirror of Galadriel”}

So if even hobbits and elves can’t agree on the nature of magic, what hope is there for us humans? The link above leads to a fansite that quotes the author, JKK Tolkien, explaining this scene with “the distinction between magia and goeteia”, in an unsent letter to the Scottish author Naomi Mitchison—whom I once had occasion to witness in person declaring to Kirk ministers that “the witches are coming back!”. Her point being that it was the alliance of Kirk and State that had burnt them.

Tolkien’s point is that magic as functional technology is permissible and distinct from supernatural deception which, other than in harmless displays of wonders, is not. This could be read as a Neo-Platonic stance, open to useful and practical magic but opposed to malevolence and mimicry. Keith Ward, author of Religion and the Decline of Magic, details the continuance of all sorts of folk magics—some adopted as scapulars and sacramentals—under Catholicism and their repression under Protestantism.

Mitchison’s declaration may have been less theological than sociological: the witchcraze of Western Europe tended to target women of property (being widows) and was highly convenient to envious neighbours who could lay claim to their land. This perspective is shared by many Scots today as the repressive Hate Crime legislation finds its first victims, with the suspicion (supported by many social media posts of intent) that it is being leveraged for ideological intimidation and revenge.

The programme director of the new MA in Magic and Occult Sciences, Dr Emily Selove, is an Associate Professor in Medieval Arabic Literature and is especially interested in “the overlap between poetic and magical language” and, glancing at the curriculum, it’s certainly interdisciplinary. Billed as offering the opportunity to specialise in “the diverse history of esotericism, witchcraft, ritual magic, occult science, and related topics”, it’s housed in the Institute of Arab and Islamic Studies and promises: “Decolonisation, the exploration of alternative epistemologies, feminism, and anti-racism are at the core of this programme.”

Well that’s all very well, but notable in its absence is the exploration of diverse ontologies (AKA metaphysics). These good people clearly envisage a good few experiential classroom sessions, carrying over to the nearest artisan vegan bakery, hammering out just exactly how the liminal discourses of queer People of Colour were even more marginalised by White male clergy. I’d be extremely disappointed if that didn’t come up at some point. However my question, in the light of Arthur C. Clark’s take on magic being indistinguishable from “any sufficiently advanced technology”, is always going to be: how does it work? Even if the answer is only ever theoretical or expressed as our best guess as to how the practitioners understand it to work.

There’s an overlap between magic and law in Agatha Christie’s The Pale Horse. One circle is cast rather dramatically by a trio of women in a spooky hotel while a debarred lawyer, encouraging persons with inconvenient relatives to place a bet with him, is circumspect about law. Somehow these spheres of influence meet in the middle. The indomitable Miss Marple finds out how (but you won’t hear the dénouement from me) mostly because she refuses to believe in magic. In this case, it’s diversion.

So what definitions of magic are there? How can someone affect something without apparent use of any natural means? Let me count the ways:

1. Alchemy
2. Contagion
3. Likeness
4. Personification
5. Similarity
6. Sleight of hand
7. Superstition
8. Supplication

The first is the attempt at holistic amelioration on diverse levels of reality notable for its spectacular lack of success—a spectacle attributed by its devotees to the prudent desire to hide its real success. (If you found those words amazingly well-written and want to read 92,000 more on the subject, see Alchemy at the Chalkface: Pirsig, Pedagogy and the Metaphysics of Quality.)

The next four are varieties of sympathetic magic theorised by Sir James Frazer in The Golden Bough and subsequently elaborated by others. The sixth is the deceptive art of diversion practiced by politicians and stage magicians alike. The seventh is the umbrella term for all the others used by people with an unshakable belief in atomistic determinism not shared by physicists. At least not after Einstein.

The eighth is the theological problem: supplication of who exactly—or what? Which brings me back to my question: how does it work?

The non-academics tweeting about the new MA are very concerned about the answer—and I don’t blame them. Western magical novels and (especially) TV series tend to be a bit vague about this. The Good Witch started off slightly witchy but the scriptwriter, no doubt due to Hallmark middle American audience comments, swiftly toned it down to a very vague Law of Attraction and the Power of Positivity. At the other end of the spectrum is The Craft, where some kind of supernatural entity, introduced as morally ambivalent but assumed at the end to be evil, is pulling the strings. The Order blends this with some attempt at magical metaphysics but by the time the demonism becomes explicit (mopping up the blood after the constant goat sacrifices is a bit of a clue) we’re already invested in the lives and loves of the characters. Bewitched just completely ignored the mechanics of magic by diverting attention to Samantha’s cute nose and Charmed, after at least one mention of “the old gods and the new” took the cookery book (and cleavage) approach.

Perhaps because of the erudite Giles (“of a British library, or The British Library”) Buffy, while merrily stealing entire episodes from Charmed, and vice-versa, at least attempted to ground its uncanny reality in some kind of coherent scheme by referencing its own version of the multiple dimensions of Buddhism. Apart from some Christmas carolling, there are no spiritual references in the Harry Potter series and JK Rowling, despite glimpses of her clear familiarity with the Western esoteric tradition, writes in the British absurd tradition of Lewis Carroll.

Still, getting back to Latin and other prestigious dead languages, all these contemporary tales have three elements in common.

• Strong emotion
• Will
• Words

With no agreement on the form, content or scope of magic, it may be distinguished from ex opere operato (automatic) sacramental operations, as the first element is replaced by the power of the Holy Spirit imminent in the Church; and from the law, as that same element is replaced by reason.

Law, religion and magic have something else in common: whether or not they are the opium of the people, as Marx put it, they are certainly the cry of the oppressed. All three may be used with malevolence, certainly, but people turn to them when nothing else works.

I am not opposed to this new MA. I wish the staff and students well, and—if they are not already on the recommended reading list—I strongly advise them to consult the oeuvre of Dame Frances Yates and of Prof. Ioan Petru Culianu. Clarity about the theories and practises of manipulation of reality may be very helpful in this age of deceit. Finally, despite the widespread opinion that they customarily do the contrary, I believe that it behooves practitioners of all three disciplines to act according to the motto of Angel Investigations: We Help The Helpless.

Magical multicoloured tree with spirals

Thanks to Victoria Borodinova for releasing her image Tree, Plant, Crown, Trunk, Fantasy into the Public Domain.

Shalom/ Sala’am?

Many years ago when I was an undergrad at a posh Scottish university, I handwrote an essay for Practical Theology that was marked down severely for naivety by my lecturer, a former Secretary of the World Council of Churches—an English, liberal, Anglican minister.

My naive analysis was that a Roman Catholic Irish Republican and a Protestant British Unionist, both born and living all their lives in Northern Ireland, would never agree on constitutional arrangements so long as they prioritised their identity over peace.

I didn’t write “constitutional arrangements” then but I would now because that’s what I meant. Identity politics were certainly rife in the late 1980s but that’s not how we referred to them. The only available alternative meta-analysis was Marxian, as full blown Critical Theory had yet to spread its spores all over academia.

His solution for the ills of the Northern Irish body politic was basically the talking cure, which in these islands usually translates to a listening cure—as dissidents are treated to middle-class Southern English people (yes, the women are just as bad and yes they’re mostly White or assimilated) jawing on about being reasonable, to Yorkshire regionalists or Scots nationalists or Welsh miners or Irish Republicans or Ulster Unionists, with absolutely no awareness of their own embarrassingly meagre grasp of relevant history or culture and absolutely no willingness to take responsibility for Westminster’s insidious role in producing current oppressive material relations.

I’m not being fair, I admit. He was a very nice gentleman (they usually are) and honestly believed that with enough hand-holding and Kumbaya all would be well and all would be well and all manner of thing would be moste well—as St Julian of Norwich almost said.

Now let me fess up: I am Roman Catholic, ecumenical, and have held hands in an ancient Scottish abbey while leading, unabashed, that very hymn. It is a powerful African affirmation of the incarnation—the presence of God among the people. When people focus more on what unites them than on their divisive identities, that kind of affirmation can be deeply healing. What tends to happen though is that people start to identify with a third community: Corrymeela or Iona or Taizé…or with some political movement that takes on and replaces the phenomena of church.

There’s nothing wrong with that, provided it doesn’t lead to cultish behaviour or self-deception but, as people move out of Identity A and Identity B towards Identity C, it becomes increasingly difficult to persuade those left behind that there’s any overlap and—in extreme cases—these movers and shakers may end up being accused of treachery: how could you shake their hands, after all they’ve done to us?

I’m also being unfair to women who, notably, dominate peace movements—although usually on the unproven and sexist assumption that one sex is innately more aggressive than the other and that had women been in charge everything would be currently wonderful. I’m not a fan of sexism and I think this attitude is extremely naive.

I’m also not in favour of White Southern English Liberal Anglican ministers (of Church or State) who attempt to impose their religion of Reasonableness on everyone else because persons with that identity can be every bit as insidiously evil as anyone else. Rex Harrison’s facetious why can’t a women be more like a man? is echoed in their every Reasonable condemnation of behaviour abroad: why can’t they be more like us? Yet the list of atrocities committed by the British Empire is so long, you must have heard about at least one of them.

As sectarianism loses its grip (young people in these islands, where it used to matter, tend to care very little whether someone’s family is Catholic or Protestant these days) constitutional arrangements involving Northern Ireland may be resolved due to economic considerations rather than those of Christian denominational identity. Brexit, trade and immigration appear to be key points at the moment.

An immediate difference between Northern Ireland, South Africa and Israel/ Palestine is that the first two names do not seem to be extremely objectionable (to Catholics/ Protestants and Blacks/ Whites, respectively) whereas the name on each side of the latter binary seems now extremely problematic for the other.

While it is true that some Palestinians have dual identity—being ethnically Palestinian and legally Israeli—I have heard on social media and also in person that these people feel they can never return to Gaza or the West Bank for fear of being branded as traitors to their people.

So the official Israeli solution that all Palestinians should become assimilated citizens of Israel and submit to its laws and social mores seems at least unpopular, if not unworkable.

Solution 1

What if there were another name for that whole land—not Israel or Palestine, with all their associated cultural values, but something fairly neutral, like “Levant”?

At the moment, tragically, it’s very clear why the Lex Talionis was a legal improvement on internecine blood feuding. Each life lost by one side is generating the will (and the reality) of killing many more of the other. As I write, it’s very much one way—but what of the future and what of the situation of those associated with one side living in countries where those associated with the other massively outnumber them?

There are two strategies for stopping the bloodshed:

1) kill all potential terrorists and, as they’re difficult to distinguish in terms of person or place, just bomb everywhere they might be.

2) ask people to stop killing each other.

Neither strategy seems to be working. Even if every single Palestinian in Gaza is massacred, is the Israeli Government naive enough to imagine that the reprisals will end there?

People in trauma cannot be expected to act reasonably, and cannot be expected to make responsible decisions about where the line between defence and attack lies. Every person in that land appears to be in trauma now, even those in charge of it, on either side. They are not going to desist from attempting to destroy those who have attacked them and killed innocent members of their community.

Asking traumatised people, terrorists or not, to stop killing those seemingly intent on killing them is unlikely to meet with success. People must be forced to lay down their arms—but not forced by their enemies. Therefore, the question is, what force is available to massively overpower both sides to mutually guarantee the safety of survivors?

Solution 2

What if UN peacekeepers (from countries other than Israel, Palestine, USA, UK, Germany and Austria, and no Jews or Muslims) flooded Israel and Palestine, confiscated all of their arms and imposed martial law until a pacific political solution was found?

Even if both solutions were adopted (I’m aware that both solutions are extreme but their combination seems preferable to Armageddon) there would still be the ongoing trauma of the bloodshed and the very human desire for revenge. For this there are two possible solutions:

Solution 3a

What if there were a Law of Forgetting—that for 100 years no narrative of past bloodshed in the land could be published or spoken of in public and that public discourse were laid under an enchanted sleep, to give time for the body politic to heal?

Solution 3b

What if there were a Commission of Truth and Reconciliation—that in every village and every town and every city men and women and children could tell their truth of their participation in past violence, and of suffering, and be heard without call for, or fear of, reprisal?

For 3a the experience of Spain post-dictatorship may be helpful and for 3b the experience of South Africa post-Apartheid.

I am quite aware that these 3 solutions may be exactly what this conflict was engineered to bring about: Problem, Reaction, Solution. Yet I think that the technocratic aim would be different: total surveillance, digital ID linked to access to currency and all social interaction. It is very likely that the powers-that-be will try to use this conflict not only as yet another ground-clearing for the real estate opportunities of disaster capitalism but also in order to impose a technocratic state as they are doing in the Ukraine.

So peacemakers, if that’s what they really are, must be very wary indeed of that insidious agenda. Finally…the UN? No, they’re definitely not neutral but what other force is there that could be massively deployed and stop these people killing each other and avoid the situation escalating to the Samson Option: global thermonuclear war?

Thanks to Anon Anon who has released the image Palestine Gaza Hamas Israel Peace into the Public Domain.

…and you came to visit me

The first time I visited a prison, it was with the Cub Scouts. We all got locked behind bars (for a few seconds) and loved it. I still remember, after the satisfying clang of the lock turned by the big jangly keys, looking around and seeing…a hard bed, a metal toilet (no lid) and a barred window. When I asked the policeman (it was the local nick so just holding cells, not really a prison) “What do they do in here?” genuinely puzzled, he said, with a shrug, “Count the bricks?”

Was I about ten then? I’m hazy on the date. The second time was around a decade later and not in Scotland. The Jerusalem Praetorium, so my aunt (a Franciscan sister stationed in Jordan) had informed me, is one of the most reliably identified sites in the Holy Land. Famously known—all with reasons but confusingly—as the Palace of Herod, the House of Pilate, the Antonia Fortress, Gabbatha, and the Pavement, it is the location of the prison cell of Jesus.

Actually there are two, so I don’t know if I was in the right one. What I do remember is that it was too small to stand up in, and to lie down in. I remember hunching inside (I must have been lucky avoiding crowds that day) and thinking: He was here. The Holy Land felt like a movie lot sometimes (there are two separate locations for the tomb of Christ, the Garden Tomb and the Church of the Holy Sepulchre, both with a venerable heritage and claim to authenticity) but this prison cell, this felt real.

The third time I visited a prison I’m not going to give you either the date or the location but I will say it was in the UK, it was the first of several prisons I visited, voluntarily, and I visited each one several times.

Why?

Again I’m going to be vague. It could be to visit a family member, a friend, a neighbour, an acquaintance—or maybe someone you didn’t know at all. A fellow human being who, for some reason, and for some period of time, is behind bars.

Why?

Why would anyone want to do that? Someone has (presumably) broken the law. Why not leave them to it?

Maybe for the reason that the policeman’s flippant (and truthful) answer stayed with me after all these years. Maybe because of that cramped stone cave. Maybe because my father was also innocent and was a prisoner. Not, mostly, behind bars. The Nazis didn’t have all their P.O.W.s in solitary all the time. But certainly deprived of his liberty.

Yet the guilt or innocence of prisoners, while of great importance to them, isn’t the main reason why people like me (and maybe you) find ourselves visiting them. I know that sounds strange, and not very just. After all, should we really be making life easier for people being punished for a crime? What about their victims?

I don’t know their (presumed) victims. I do know that there’s someone in prison and that I believe that visiting them may do both of us some good.

So do the authorities. At least for the prisoner’s sake. And this is the first thing to say about prison visiting. You are, willingly, putting yourself into the hands (quite literally) of the authorities. You won’t get in until they say so—and you won’t get out either.

Think about that. It can be a bit nerve-wracking. There are forms and phone calls and doors and locks and fingerprints and lockers for belongings and a sniffer dog (don’t pat the dog, no really, they know he’s cute) and lots and lots and lots of waiting, for the next stage.

For the mythically-minded, the Descent of Inanna comes to mind. You shed your outer layers: jacket, gloves, hat, car keys, credit cards, mobile phone. Any gift has to be notified in advance (and is not given directly to the prisoner) and you walk into the visiting area (eventually, because the whole process of entry can take an hour, so do go to the loo at Reception!) with some change in your pocket, maybe a tissue, and that’s it.

The staff are, at least, civil. In my experience, that’s the baseline but usually they’re amicable, even friendly (I know one’s a translation of the other but the second feels warmer).

We (the free) walk in first. We’re assigned a table number, each prisoner has one, and—when they all come in—they have to sit on a different coloured chair. You have to open your mouth and stick your tongue out at the guard and if you hug or kiss the prisoner they’ll get frisked at the end. Because people try to smuggle things in. Seriously.

Then someone (not the prisoner) will go up to the hatch for sealed cups (no, don’t take the lid off) of tea or coffee or cartons of juice, and biscuits. Don’t be arsey about the selection. It’s a treat for the prisoner. This is another county. The rules are different here.

The guards stand around the room, watching. Well you’d complain if they didn’t, wouldn’t you? You’re in a room with a large group of (presumed) lawbreakers. They’re unlikely to start anything. But it’s a risk. Think about that.

About being arsey. Don’t. Just don’t. It’s not about you getting in your Guardian reader civil liberties points. You may be escorted from the building, early; the person you’re visiting won’t—and he may suffer for your outburst. So be positive about the experience but not presumptuous. The guards are playing out possible scenarios in their heads and in some of them you end up imprisoned or dead. Think about that.

All the prisoners are the same sex (in theory). That changes things. So whoever in your group (because you might be two or three) isn’t, may be aware of that. There’s a children’s corner. They’re (hopefully) not really aware of the underlying tension in the room. Everything is voluntarily circumscribed. There are things you don’t say and things you don’t do.

Okay, enough gloom. What’s good about this situation? Chat. Talk about family and friends. World and national news probably isn’t a good idea. It’s too remote, especially for longer sentences. Football. How’s the team doing? What about that penalty? That’s good if you can do it. Remember he has TV. So he’ll know.

Share your life. Keep it light. Remember he can’t solve problems in here so don’t give him any. Don’t boast, but share joys. There’s a world out there, let him keep in touch.

Listen. There will be a detail. The food has changed. Different job. That guy is a good mate. Bit dodgy. (Said in a whisper. No don’t look. No it’s not smart and yes you’ll be noticed.)

Something about the lawyer. Guilt and innocence it’s just not your concern. Not today. It’s all theoretical. He’s in here. They think he did it. You keep an open mind and nod along to whatever he thinks. This is NOT the place to play judge and jury. No matter how many cop shows you’ve watched.

Remember the power differential. Always. You’re free. He’s not. Underneath his amiable exterior (because he’s pleased to see you) there’s probably seething resentment against the screws/ the system/ her that dobbed him in/ the mate that dared him/ got him drunk. Don’t go there.

Time’s up. Maybe a hug. Take your cue from him. Back they all go through the gate. It’s not just a door.

Clang.

A tangible feeling of relief runs round the room, mingled with sadness. Some family members (usually female in men’s prisons, for some reason) start being arsey with the guards. Get that door open! I need to pee! Because they can. Understandable. Not advisable. The ascent is quicker than the descent.

Outside. Fresh air. Walking to the car. Liberty.

We don’t think about it till it’s temporarily abdicated. It’s a previous gift.

Why do I visit prisoners?

For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.

Matthew 25:35-36

I don’t think the point of that passage is the heavenly reward. I visit a prisoner because as well as keeping a link to civil society and his hopes up that he’ll be able to rejoin it, safely, even if he has (perhaps and perhaps only to some extent and temporarily—or perhaps not) forgotten his humanity, visiting him may help me remember mine.

Padlock on heavy chain on iron gate

Thanks to Alex Borland for releasing his image Rusty Padlock and Chain into the Public Domain

Legal Action Without a Lawyer – Part 4: Preliminary Hearings & Judicial Mediation

Preliminary Hearings (PH) and Judicial Mediation (JM) are quite different but I’m writing about them in the same post as I’m not allowed to reveal anything specific about the latter—as that could potentially prejudice the fairness of the case, especially the Final Hearing.

Preliminary Hearing by Phone

These days a PH—unless it contains procedures usually (I think only, actually) done at a public hearing, like strike-out of the whole or a part of a claim—is likely to be conducted by telephone. This is a bit odd but you’re probably used this kind of domestic formality from Lockdown and have evolved ways to cope with it.

I got a member of my family to stay with my Mum (with instructions not to turn on the TV, as she’s quite deaf) to avoid her wandering into the room to enquire who’s making the dinner. I also dressed in my suit (I think I had my slippers on TBH) and made sure I’d been to the loo and had a glass of water and a notepad and pen handy, my computer on, connected to the Internet, and the series of documents relating to the case all open in a handy folder.

As the case goes on, it may become impractical to have them all open (especially all the correspondence) but you’ll get used to judging what’s at issue at each stage.

Previously, someone from the Employment Tribunal (ET) will have emailed you to ask for a phone number to use. I don’t recall being asked if the scheduled time was suitable. A Listing Letter is sent to both Parties for that but in this case it’s a case of: this is the scheduled time, you’re expected to rearrange your schedule accordingly. I imagine it’s possible to object that you’re unavailable.

The phone rings and a pleasant voice (in my experience) informs you that this is a call from the relevant ET and asks you to confirm your name. You shouldn’t have anyone else within earshot. The voice continues to name people as they join the conference call. Expect these:

• Claimant (that’s you)
• Representative of the Respondent
• Solicitor and/ or Advocate (Barrister) for the Respondent
• Employment Judge

Only one person can speak at a time but as long as the usual courtesies are observed there can be a minimal amount of interrupting. In my case I found the exact name of the case the Judge used to contradict the clueless Advocate (who clearly hadn’t read the Brief from his instructing Solicitor) about political stance as a potential example of a protected Belief under the Equality Act 2010. (That case is Blackbay Ventures.)

Firstly a word about cases. You’re not expected, as a Party Litigant, to know case law but if you do it helps. If you don’t know how to refer to a case formally, just be clear and give the information you do know. For example, the full citation of that case is: “Blackbay Ventures Ltd ta Chemistree v Ms K Gahir: UKEAT/0449/12/JOJ” and the legal convention is to put all that as a footnote in any legal document with just the name of the Parties, and thereafter only the first Party (surname or company name) in the text.

So, speaking about it, what do you say? Well, despite the “Your Honour, if it please the Court…” (tosses hair and glances at the door where we know The New Hire is going to come bursting in with Vulnerable Person Under Police Protection at any second) “…in the case of Smith vee Jones 1871 in East Cupcake, Missouri…” apparently you lose cool points if you pronounce the “v” or “v.” or “vs” or “vs.” (which is just plain wrong) as either “vee” or “versus” or “verses”. The thing to do is to read it out as “and”.

Now I don’t do this because I think it’s unclear, as there could be more than one Claimant or Respondent: Smith & Jones v Cassidy & Kid, for example, and three “and”s are not going to get you anywhere in terms of clarity. Lawyers do this because they know the cases (in theory) but as a former English teacher who’s impressed by plain English, I disagree. So I’d say: “Smith and Jones against Cassidy and Kid”. But I’m a rebel. You do what you think best.

A PH is usually about case management. It’s something that needs to be cleared up before the Final Hearing. In my case (there have been several) they’ve been about clarifying the claims and deciding on the next stage. The judge wasn’t certain I’d understood the difference between Direct and Indirect Discrimination. That’s a bit tricky but it’s like this:

• Direct Discrimination is when I don’t get an interview with the police because I’m not 6 foot tall (I’m making this up)
• Indirect Discrimination is when the door into the interview room can only be opened by someone who’s 6 foot tall (I know this is ridiculous and there’s no grounds for this in the EA 2010)
• There’s no discrimination when I’m not allowed to go on the kids’ dodgems at the Fair because I’m over 3 foot tall.

Other issues can be the Issues. Technically these are known as “facts in issue”. They’re couched as questions. For example:

• did Smith own a gun?
• if Smith owned a gun, was it a .22?
• what was the calibre of the bullet found in the body of Jones?

(Unsurprisingly, none of those are facts in issue in my case.)

The List of Issues is not just important to indicate what needs to be decided at the Final Hearing, but also what doesn’t. The Grounds of Resistance submitted early in the case by the Respondent has some bearing on this. It may contain at least partial acceptance of some facts:

• the Respondent accepts that Blinky is an extraterrestrial but not that Blinky originates from Mars.

(Not that one either.) It’s useful to compare documents because you can argue that there’s an implicit, reasonable, admission here. (No one could seriously argue that Blinky comes from Venus, because it’s too hot, or from Jupiter, as it’s too far away.) But be careful. (Just because Blinky isn’t Venereal or Jovial, that doesn’t mean Blinky is Martial necessarily: Blinky could be Lunatic.)

In my case a useful admission previously made by the Respondent is that I have RSI. I recently used this to argue that, therefore, insisting that I present medical evidence for this longterm condition is harassment. I’ve honestly got enough to do without needless paperwork.

Keep on top of the paperwork. Yes, everyone has seen Suits and yes they will try to “bury you” in it. I use large folders (ACAS, ET) and small folders (COT1, COT2, COT3/ Claim [ET1, Issues, Grounds of Resistance], PH1 [correspondence, skeleton argument], PH2 [ditto], etc.) Sometimes the Respondent will print out “the bundle” for you. This is all the documents you need for a Hearing. They may have done this due to my RSI. It’s excruciating for me to have to scroll up and down for lengthy periods. Mouse work is torture.

How about Judicial Mediation?

This may be the first time you attend the Tribunal. What are the DOs and DON’Ts?

Do arrive 30 minutes early. Do be nice to the staff. At first it’s like going through airport security. It’s their job. They want to stop people getting stabbed or shot, basically, so let them get on with the conveyor belt and the hand-held machines. There may be a café. Be nice to them too. And at reception. And to the court clerk. People talk to each other. Don’t sail in like a mediaeval Lord confronting peasants in his path. Don’t be overly deferential either. All these people are doing their job. Yours is to win this case. Pass through gatekeepers graciously, but keep going.

You’ll end up in the waiting room. You don’t know who’s who in there so stick to small talk with whoever accompanies you. Get someone to accompany you who can dress appropriately: clean, formal and modest—because the shell suit/ parka/ crop top/ mini skirt/ tight jeans/ platforms/ stilettos/ leopard print/ dangly earrings/ piercings/ paint job really won’t help your credibility—and can shut their mouth in public places, including on public transport there and back.

Then a staff member invites you into a room. Sit down at the table and take out whatever aide memoires you’ve brought with you. A notebook and pen; a laptop (there should be a place to plug in a charger); a bundle of documents (not necessarily “the bundle”; water (there will be some there too, a jug and glasses or sealed bottles).

When the judge walks in, stand up and shake his/ her hand (I’m going to use “he” from now on, as is still usual in traditional law writing, but I’ll use “she” for the Respondent’s lawyer). He’ll tell you not to call him “Sir” today but to use his first name, as today he’s not a judge. That was a bit much for me so I think I either avoided calling him anything or used “you” or “Judge [surname]”. He didn’t object. They take their cue from you, to some extent. His job is to get the Parties talking, at first by intermediary, him going in and out, perhaps eventually in the same room.

You can leave and nip to the loo when he’s out. Don’t dawdle. Don’t annoy him. But he’s used to people being nervous. Make it clear what you’re telling him and what you’re asking him to share with them. Those are not necessarily the same thing. Judges tend to be good listeners but don’t go on. They know the law better than you so don’t lecture them. YouTube might be wrong. Yes he has heard of Common Law.

I can’t really say any more about that and neither can you. No really. Shut your mouth about it when you leave. If there’s an agreement about a settlement, maybe via ACAS (an avenue that is always open right up to the judgment), that will include a clause about public disclosure of the Ts&Cs. So Mediation might settle the case. If not, the only thing you’ll be allowed to say about it is that it didn’t. In my case, it didn’t.

Preliminary Hearing in Person

This category is really a mixture of the two above. In terms of what you do, it’s like Mediation; as for what you say, it’s like a PH on the phone. You will be in a hearing room with the same people (or at least the same roles) as on the phone; you may have to sit beside one of them. In my case my companion sat beside the assisting solicitor. Fortunately his handwriting is indecipherable. Be civil. You might want to shake hands at the beginning and perhaps at the end. You might not. Don’t swear at them, shout at them or take what they say personally (if you can). If you are made to look unreasonable, it’s a point in their favour.

When the judge walks in, everyone stands and bows. So does he. It’s old-fashioned courtesy. Same at the end. Don’t be late back after lunch and do ask for a break when you need one.

Things go fast. There are no long speeches and absolutely no “walk and talk”. Forget the legal soaps. It’s not like that.

Thank people on the way out. Court Clerk, Receptionists, Security. Don’t go back into the café, the temptation to debrief will be too strong. Anyway the building closes early. It’s not office hours.

Hopefully, if your case hasn’t been resolved, you’ve survived to fight another day!

(This post is part of a series)

Part 1: Making the Decision

Part 2: ACAS

Part 3: Employment Tribunal

Thanks to Mohamed Mahmoud Hassan for releasing his image Lady Justice Silhouette into the Public Domain.