ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 3: SKELETON ARGUMENTS, PREPARATION AND PRESENTATION: AN ABSOLUTE GOLDMINE

November 14, 2017 · by gexall · in Applications, Civil Procedure, Skeleton arguments, Uncategorized, Written advocacy

This blog has many posts that record cases where judges have been critical of the contents (and usually length) of skeleton arguments. A remedy for most of these issues has been available since 2004. Gray’s Inn prepared a paper “Skeleton Arguments: A Practitioners’ Guide“. This is an absolute goldmine of a paper. A fraction of it is summarised here. As ever the aim is to persuade you to read the original.

“Sir James Hunt has told us of the (unattributed) judicial reaction on receiving a 35 page document which was to the effect “This is not a skeleton, it’s a fat stiff’. Nor would attribution add to the impact of the remarks of a judge who received a manuscript document covered in coffee seals on the morning of trial and said it was “difficult to read, disgusting to touch and impossible to understand. It is worse than no skeleton at all”.

THE AUTHORS

The author list probably says it all. This is a collated paper. Incorporating talks from Lord Justice Mummery, Mr Justice Hunt and Edmund Lawson Q.C. These were then incorporated by Geraldine Andrews Q.C. into a single paper. This covers what the judge wants and what a leader and instructing solicitor would expect you to prepare.

THE KEY POINTS

a. A skeleton which on receipt produces an adverse reaction is a negligent own goal.

b. A skeleton which is a lengthy recitation of the whole body of the case will not assist.

c. A manuscript skeleton handed to the judge on the day of trial does not have the same effect as that presented to him with the case papers earlier in the week.

d. Presentation matters enormously.

WHAT A SKELETON SHOULD NOT BE

a. a US type court brief;

b. a script for a lecture to a class of first (or last) year law students;

c. a professorial style commentary on the strengths and weaknesses of the case;

d. an impassioned speech to constituents or to the House of Commons;

e. an introductory warm-up to a group therapy discussion or TV chat show;

f. the first draft of a Law Review article;

g. private shorthand jottings of points intelligible only to the writer.

PREPARATION

“Think out the case on your seat, not on your feet. Perspiration reaps more rewards than inspiration. Read the papers. Master, muster and marshal the main facts. Research law and refine – select relevant and best cases. Always ask yourself whether you need to cite a particular authority, and why. Do not snow the court with all the results of your research or stifle it with unnecessary information”

PRESENTATION

“13. Put yourself in the position of the judge. He is the consumer. Make life easy for him. If you are producing a number of documents, ideally you should put them in a ring binder and use dividers with an index (skeleton on top, then chronology, schedule of facts if appropriate, dramatis personae, extracts from cases or statutes, etc. etc.) If you are not going to produce the document in a ring-binder, submit it with holes ready-punched, and either stapled in the top left-hand corner or treasury-tagged.”

STRUCTURE

” Heading – “Skeleton argument on behalf of…….” Three vital words which are often omitted. It is rather important for the court to know whose skeleton it is, and it is not always immediately apparent from the text”

“Be brief and to the point. Aim for simplicity in everything—concept, language, style, presentation. Concrete is preferable to abstract. If something seems unduly complex, divide and conquer: break it down. Less makes more impact than more. Use short sentences, short paragraphs, short submissions”

CHECK: TWO HEADS ARE BETTER THAN ONE

“Unless there really is no time to do so, always send a copy of the draft skeleton argument to your instructing solicitor and wait for his comments before lodging it with the Court. Two heads are generally better than one, and it is amazing how often the solicitor will come up with very good points that you will not have thought of, or will point out flaws in your argument or typing/grammatical errors which you have not spotted.”

COMMON FAILINGS

“The following is a list of the problems which arise all too often with written submissions:

1. they are too long and detailed.

2. there is no initial summary,sign post or lead-in.

3. there is no clear framework in which to fit the detail of the facts and the law.

4. there are too many issues/points.

5. a neglect to relate the issues to one another.

6. a lack of focus,organising structure or unifying theme

7. excessive citation/quotation/boring reading out loud.

8. misunderstanding or mis-statement of the facts,the law or of the opponent’s case

9. no clear, succinct statement of reasons for disposing of the case in the manner requested.”