Skeleton Arguments

Hello. My name is Alice the Hajj. And can I welcome you to this data? Lower webinar on skeleton arguments. Many of you out there watching will be involved in advocacy, whether in the Crown Court, the Magistrates Court, County Court or the high court, or indeed, any other form of Tribune on. If you have immersed yourself in advocacy over the last few years, you will know that the a concept off skeleton argument has taken on far more importance than it ever had. When I, for example, when I started at the bar in 1998 it is now a key tool in various jurisdictions, in particular apparent appellate jurisdictions, to which I will return a little bit later on what I'm hoping to achieve in the next half hour or so. It's firstly give you an overview off the girl. Good practice for skeleton arguments on weaving in a few amusing stories which will hopefully entertain you along the way in the second half of the webinar. What I'm gonna do is give you 10 suggestions for good practice, things that you should always bear in mind if you like rules that you should always have in your heads if you are called upon to draft a skeleton argument for an appeal or any form off advocacy that you may come across. So let's. Firstly, if we may spend a little bit of time breaking down the phrase if one can call it a phrase that two words skeleton argument into its various components. The first word I want to focus on is the concept off the argument. Many of you watching may already have seen the data webinar on argument advocacy on the principles that I set out in that particular webinar in terms off the presentation of an argument orally are equally relevant to skeleton arguments because at the end of the day, it is an argument it should contain the elements of logos, ethos and pathos as set out by Aristotle in his book Rhetoric. Why should it contain the logic, the credibility in the empathy? Because it will engage the reader off the skeleton argument on it will make the skeleton argument farm or attractive to them. But let's focus a bit on the argument. Everybody knows what an argument is for the purposes of a skeleton argument in court proceedings. Let me tell you what a skeleton argument is not. It is not simply a recitation off the facts of a particular case that will get you nowhere. The judge or tribunal in a particular case will know what the facts are. The judge, the tribunal have listened to those facts being brought out in evidence over the previous two hours or two days or two weeks, or have along the particular trials, lasts. They will be immersed in those facts, and the last thing they want to see when it comes to looking at your skeleton argument is simply setting out what actually happened in a particular case. The second thing that a skeleton argument is not is simply reciting the law again. Whilst we've looked at reciting the facts and telling Judge what happened in the particular case merely to set out the law almost like a university S a gets you nowhere, either allow the judge will do is go away and think, Well, I'm far better versed in the law in a particular area equally, and I saw this some years ago when teaching skeleton arguments and on argument advocacy, one of the students put in a skeleton argument for a particular exercise, which can only be described as a detailed and nonetheless riveting essay on the wagon Mound number two. It dealt in detail with great principles of remoteness, of damage. Aunt told me everything that I needed to know about the law on remoteness of damage. But of course, that had not the slightest relevance to the actual matters that were involved in the case on if you like, why the judge should find in the students favor on the particular application that they were making. So it is. It isn't reciting the facts. It isn't reciting the law on it. Isn't writing a law? S A So what is it? Well, it's an argument on. As I said earlier, if you've seen my webinar on argument advocacy, you will know what an effective armed human is, In essence, for the purposes of the skeleton. Let's take a trivial example if we may, that of an application for a summary judgment. It is, ah, a document that will tell the judge if you're acting for the claimant, by way of example, why the claimant should be successful in their application for summary judgment. Equally if you're acting for the defendant. It should be a document that tells the judge why he should dismiss the claimants application for summary judgment. In other words, the skeleton argument focuses on one word and one word alone or in fact, two words. The word because or the word why on never, ever forget. Ladies and gentlemen, the why? Because it is the why that is the key issue. Why is it that summary judgment should be granted for the claimant? Why is it that the claimants application for summary judgment should be dismissed? Why is it that a freezing order should be granted in favour of the claimant against the defendant? Why is it on a return date that the freezing order should be discharged? Never, ever, Ever forget that word? Why? Put simply, I suppose, looking at it from a different angle. It's why, in a particular case you should win on why the other side should lose. So much for the argument. What now? Off the skeletal parts off the argument? Well, when I think of the word skeleton, I'm taken back to third year or year nine. For those of you who are slightly younger than I am in terms of years school, but I go back to third year biology when I was taught by the enigmatic, charismatic on thoroughly brilliant Mr Matthews. Now, Mr Matthews was a biology teacher. He was He was a wonderful man. He was times a strange man, but he was a wonderful man on. I remember at the front of his biology laboratory, hanging from the ceiling waas a human skeleton. It was, in fact, a model off the human anatomy with various boat. And every time ladies and gentlemen, I draft a skeleton argument. I think back to 30 year biology. I think back to Mr Matthew standing in his white laboratory coat next to that skeleton that hung from the ceiling. Because that is what you are after in the skeleton. It has to be the bare bones off the argument. No more the flesh. If you like that, you will apply to those bones. You can add to that. You can add the flesh, the bones in your oral submissions. Once you're in court making your closing speech or making your application, it is simply a short, pithy document that sets out in grief and in concise terms why you are going to succeed or why the other side should fail on a particular application or course. So. In other words, when you're drafting a skeleton argument, basically, always ensure that Mr Matthews or that human skeleton is in mind. So how do you do it? How practically do we actually go about putting together a skeleton argument and actually preparing it? Well, the first with the way I do it and it's up to you to find your own way. But can I commend this to the first thing to do is to write the argument almost not in full longhand. But keep in mind brevity. Keep in mind that skeletal nature of the argument on set and committed to paper, set out your arguments on paper on DSO that it is there, maybe eight or nine or 10 pages of text on when you've got that argument. When you know that you've got what you want the court to know and you know how you want the court to find head the button marked Save on. Commit that to your floppy drive, your flash drive, your hard disk or whatever it is on their four, we've got the argument committed to paper. The next stage is to transform that written argument, which is Maura at this stage. A Siri's off written submissions, which have slightly more detail than they would otherwise need. The job for us now is to make that skeletal on the way I do it is by using a very simple method called the Red Pen test. What I would do is I would print off my document that I've prepared my 10 or so pages on. Then with a great degree of detail, I will go through that document on I will with my red pen actually physically on the page. Some of you may be better than me and do it on screen, but I will remove from that document by way of the red Pen things that I don't need, what one might call guff, things that just simply don't want to be there. The classic example that I see when I'm teaching advocacy and skeleton arguments is people that begin a lot of paragraphs with it is submitted that that's perfectly proper language for a total submission, My Lord, in my submission X y Z But in the skeleton argument. It's surplus to requirements. It doesn't need to be there they are words that are simply ot owes. You can get rid of them on if you want to. Quote Lord Justice Simon Brown from Rock Refrigeration and Jones, they're merely written water. They carry no meaning. They carry no emphasis on you can take them out, and you will find when you apply the red paint test that, in fact, the document actually shrinks quite nicely. You may have set out. For example, if you're doing a summary judgment application, you may be appearing in front of a district judge or a high court master. Those individuals will be well versed in the law relating to summary judgment and the key authorities that can be found in the White Book. Therefore, it would be if you have done it in your original draft. If you've set out the test, the summary judgment contained within the civil procedure rules do you really need it? The answer is no. Equally. If you are acting for a defendant summary judgment case, it would be rare to set out a few paragraphs on the facts. Unless, of course, the facts were very, very key to the submissions that you were going to make eso again when you depends which party are acting for. If you're acting for the Cleveland, it may be perfectly proper to set out a brief crazy of what the case is about on the factual background. If you're acting on the other side, you don't really need it. You can cut straight to the chase and get on with telling the judge why the application for summary judgment should be dismissed. And if you carry out that exercise, I say you will find that the document will get shorter. There is no hard and fast rule as to how long a skeleton should be. In some cases that I do, my skeleton may be no more than a page and 1/2. It maybe two pages. But invariably, for me, it would be rare for me to have a skeleton argument any longer than eight pages. The other practical point to bear in mind, which is an important one, is if you are handing in a skeleton argument to your court on the day, make sure you or your office or whoever have acquired the use of a very straightforward tool called a stapler. Trust me, paperclips are no use. You must use a stapler on ensure that your your skeleton argument is stapled together. Why? Because we know in the court system has a lot of paper going around and pages may go missing. You want to ensure that the judge has each and every page off your skeleton? Let me turn now to the importance of skeleton arguments in modern day trials. Litigation on advocacy. It is now in most appeals, perfectly possible to win your appeal by way off the skeleton argument on by Win the appeal. I mean, I get it allowed if you're acting for the appellant. Or indeed, if you're for the respondent to the appeal in having it dismissed, much can be said for trials as well. If skeleton arguments go in before any of the evidence is heard, it very often focuses your tribunal courts mind into your own end goal in that particular case on what you're gonna be saying at the end of the trial about the various different issues in the case. But there's a further practical implication that it's important to bear in might remember that judges are incredibly busy individuals. It may well be the case that a judge returns to their room after a long day in in court on doing some applications the next day. And there's a list of maybe 10 or 15 applications on the first application the judge picks up looks at is a lever arch file of paper. There is that amount of documentation in the fire, but on top of the file is a beautiful, short, pithy skeleton argument. What's the judge gonna read? Well, the reality is the judge is going to read this skeleton. He or she may dip into the documentation. But if you've done an effective skeleton that is gonna help the judge, it's automatically gonna put the judge on your side. I mentioned earlier about skeleton arguments being able to win you cases before you even say anything in court. That is absolutely true. I remember one of my first appearances in front of the Employment Appeal Tribunal in front of Judge Peter Clarke Andi, in accordance with the Employment Appeal tribunal rules. Skeletons had been submitted by myself on my opponent in advance off the particular case. Uh, clearly the Employment Appeal Tribunal, presided over by Judge Peter Clarke, had read those skeletons before we went into court. On it goes further because I stood up and wax lyrical for about half an hour on why my appeal should be allowed on. Then my opponent spoke for about 20 minutes as to why the appeal should be dismissed on what are what happened after that, ladies and gentlemen are the things that only dreams are made off because I will never forget this because Peter Clark looked at both of us and said, Take your gentlemen, we showed retired on. He and his fellow members stood up and they left the tribunal on. They retired for about four minutes, probably long enough for a quick swig of a cup of coffee and say, What are you doing this weekend, Etcetera? And they came back in on Peter Club Judge Peter Clarke on his desk. He had us a desktop computer with a bit of ah sort of arm thing, and he simply adjusted. The arm looked at us. Both smiled and began. This is an appeal from the Southampton Employment Tribunal, promulgated on the 31st of January of 2002 we shall refer to the parties as the claimant on the respond. The judgment was already written. It was already on the screen. They that the Employment Appeal Tribunal had felt able to decide the case based on the skeleton arguments that have been submitted in advance, in which they had read that ladies and gentlemen emphasizes the importance of a good skeleton. But some of you I hear you cry. Does that mean that Orel Advocacy is now dead? Does it mean it doesn't matter now? Of course it doesn't. Because, of course, what Peter Clarke didn't. My appeal was we've in some of the arguments that I made on the day into his judgment, he would finish a particular paragraph that have been pre written on screen on would do something like this on the 24th of February. Mr. Hodge, on behalf of the appellants, tells me today in aural argument that the tribunal failed to apply the second limb off the test in Latin Marshall. We reject that on the 24th of February of 2000 and three and so on and so forth, and he continues with the written judge. But don't Whatever you do take This is me saying that Orel Advocacy is dead on Diz after Net I I'm far from saying that the long before my time there was a story in relation to a criminal, a people that was presided over in the Court of Appeal by Lord Justice Hobhouse and two fellow Court of Appeal judges on the queen's counsel, who argued the appeal point in the morning wax lyrical from around 10 30 AM until 12:50 p.m. On the QC. Sat down was quite happy to have sat down and finished submissions. Lord Justice Hobhouse looked at the both parties and sort of said, Well, that looks as though it's it's clearly timeto have a spot of lunch on by their Lordships wrote on Lord Justice Hobhouse. The one thing about him was he didn't have a particularly quiet voice. Ondas. They exited the court and went down the corridor. He was heard to moon. Well, that's buggered up the judgment. Present it. We're gonna have to rewrite the draft because again they had decided the case based on the skeletons. But the aural advocacy of the queen's counsel on the day had persuaded them so or advocacy is still alive but mirrored by the importance off an effective skeleton argument in the time that I have left, can I now turn to some top tips from me about the drafting off skeleton arguments at the first? And some of these will be trite, and some of these will be second nature to many of you. But they are still mistakes that are made in practice, and it's very important that you don't make these same mistakes. The first matter I want to talk about is actually the naming off the document. It is of little use to a judge to simply head the documents. Skeleton argument. Indeed, if you're drafting skills are not yet developed, developed to the extent that they should be. It may well be that the judge will get so far into the document on not have the slightest idea whether it's actually an argument on behalf of the claimant or indeed, an argument on behalf of the defendant. So always make sure that your judge is not having to carry out the exercise of working out who submitted the skeleton quite clearly on the header. You can say skeleton argument on behalf of the claimant skeleton argument on behalf of the defendant skeleton on behalf of the appellant respondent, etcetera make it clear on the first page so that the note the judge knows exactly who has submitted at the argument. The second point I would make is really one of style. Again. A written skeleton argument should use numbered paragraphs, and it should be paged consecutively. Again. Watch the pagination of paragraphs I've done done appeals where I remember one in particular where my opponent had drafted a skeleton argument on the pagination. Off the paragraph numbering had gone awry. Thing sometimes happens. It's easier to do if you if you like me. You prefer not to use automatic numbering on guy Might. The course of my submission referred them to paragraph 12 of my opponents skeleton argument, which prompted a line from the judge. Which one? Ah, nice said. So I'm not with you, he said. Well, your opponent skeleton argument has three paragraph 12. So try and avoid that because obviously it doesn't look very good on you. It shows a lack of competence, a lack of care. A lot indicates that you haven't really read it with great care before actually submitting it. Some of the guides will have rules is to lay out Ah, good trick that I use is always to use double spacing between each line. That means that the judge or whoever can right in amongst the lines of your skeleton argument on a good practice is to use no no less than 12. See p I. Obviously we are judges are all human beings. I wear spectacles on smaller print is more difficult to read again. Put, make sure there's a decent space at the end of each paragraph so that the skeleton itself is aesthetically pleasing on the eye, the more aesthetically pleasing it is on the I, the more likely it is that the judge will want to read it. Good skeleton, And this is a requirement of some of the guides must also identify the advocate or lawyer who wrote it. In other words, do not simply think well, let's just put it in this skeleton and put nothing at the end or put the date put your name on it. It's your document, you've got care of it, and you're responsible for its contents. So in other words, It's not just a simple formality of putting your name to it. It does carry some weight under the rules I mentioned a moment ago. The date the date is also more also important because in certain larger cases, there may be multiple skeletons. It may be that over the course of a number of preliminary hearings that matters have changed on, it's important that the judge knows which skeleton is the most recent of the skeletons on. The easiest way to do that is just to make sure that every skeleton has a date s so that it's easier to follow equally if you're dealing with an appeal against various matters. And there have been different skeletons for different hearings. Having the date of the hearing to which that skeleton relate is also good practice because it means that the judge will be able to focus on the skeleton with which he or she is going to be concerned. I said a number of things about arguments style and telling the judge way you're gonna g o will turn the judge what you want, why you should get it and then telling him why he should grant it that sort of three faiths style. Again, any form of skeleton arguments should begin right at the outset by putting the judge in no doubt as to what the application is about. Therefore, the submission should summarize in no more than one or two sentences, right at the very start what the particular hearing for application is about. For example, this is a claimants application for summary judgment arising out of a hire purchase agreement dated 22 January 2015. No more, no less. The judge instantly knows its summary judgment application, and you will be surprised. Ladies, in general, when it comes to aural advocacy, how many people actually begin their submissions without actually ensuring that the judges aware what the application is on? What is going on again? Your skeleton should engage the legal and factual submissions that you are making. It's important that they're contained there in because they are the important parts off the argument. But again, I go back to what I said at the beginning. It's not simply setting out the facts, it's not simply setting out the law. It's remembering that question. Why? Why is it that the judge should find in your favour on a particular issue. Why is that? The judge should dismiss a particular argument that is contended for by the other site. I said a moment ago about setting out that the nature of the application of the very start of the skeleton. The next stage of that is actually to set out what you say about the particular issue in the case because of the end of the day saying that it's an application for summary judgment. Well, that could mean a number of things. What is it you actually want? So after you've set out in brief terms, what the case is about, what the applications about put your spin or put your side your sides cakes on the particular issues in the case. So, for example, in the case that might require a number of things for summary judgment, make it clear in the second paragraph in this application to claim it seeks summary judgment on the claim in the sum of however many £1000 delivery up of certain goods, whatever the orders, maybe, and make sure the judges crystal clear right in those 1st 2 paragraphs. One that it's summary judgment and secondly, what you're saying about the particular issues in the case authorities. There's there's a sort of mix thinking about how to deal with authorities. Obviously, if you are going to insert chunks off authorities into the skeleton argument that obviously takes up more space, it may well in some cases, be so fundamental that you need to know you should have the actual words of a judgment weaved into the skeleton argument. There's no right or wrong answer to this. Some advocates I know we'll keep the skeleton when it comes to referring to legal authority. They'll state the proposition, and they'll put the authority on. Then, in aural submission, they will flesh it out by going to the text of the authority. If, however, the point that you are making can be summed up in a minute, and by that I mean no more than five lines a minute, a piece of text. Then, by all means, feel free to site that particular passage of a judgment in the skeleton arguments. Now, some final points be fair. Fairness is one of those things that goes hand in hand with ethos back to Aristotle's arguing about credibility in your credibility as an advocate, Anderson argue. If there are authorities that exist that are inconsistent with the proposition for which you are arguing, deal with them, deal with the other side's case and try and set out with some confidence and authority why it is that the particular case should be distinguished, or why it is that your opponent is wrong to approach a particular point in a particular way. Fairness is everything on the court will love you for it. If you see that you are making concessions where possible, finally be persuasive. I know it's difficult to teach someone to be persuasive on a piece of paper, but there are various ways of doing it because a Z we know from Orrell advocacy brevity is everything. The most effective advocacy is the simplest short sentences very few uses of sub clauses and punctuation. Just keep it incredibly simple, uh, again on I emphasize this in the webinar on on argument advocacy you should always treat the court in the skeleton is that it's first time listeners a skeleton, the first time reader imagine that the judge is coming to this totally a fresh what are the key issues that you want the judge to know you're gonna be arguing for when it comes to the aural advocacy. It's very easy in a skeleton to assume knowledge and to assume that the judge will be able to follow everything that doesn't actually work in every single case. And if there were one other point I could give you, it's be concise. It's going back to Mr Matthews. It's going back to that skeleton on. There have been too many examples in recent times that court of appeal level, where judges have torm to shreds skeleton arguments For those of you with, you want to do some further reading. Just look up on Bailey. The Case of Robert Change its when it got to the Court of Appeal and in particular, the cost judgment on the changes case. Lord Justice Voss, Lord Justice Jackson and Lord Justice Lady. Just a sharp are the three judges on what you had in that case was a skeleton argument submitted on behalf of the appellant that ran to something like 37 pages. There was then a supplemental skeleton arguments submitted to the Court of Appeal, which ran to 40 pages so 77 pages off skeleton argument to put this in context. And Lord Justice Jackson makes this point. This is, in the context, off a judgment of a high court judge, Mr Justice Eder, that ran to some 11 pages. Now, ladies and gentlemen, that is total and utter overkill. There is no reason for a skeleton or supplemental skeleton to be off that length. Andi, from memory of that particular costs judgment where they dealt skeleton arguments through the talents, were refused the costs off those additional skeletons because the court took the view. It was totally unnecessary. So there we are. I hope that's giving you some pointers to go out into the big wide world. On draft skeleton arguments. I wish you well in your drafting on Look forward to seeing you against